Former Maldives National Defense Force (MNDF) Head of Operations Directorate Colonel Mohamed Ziyad has denied the charge levied against him by the state over the former government’s detention of Chief Judge of the Criminal Court, Abdulla Mohamed.
Colonel Mohamed Ziyad is charged for arresting the chief judge in January 2012, alongside former President Mohamed Nasheed, his Defense Minister Tholhath Ibrahim Kaleyfaanu, former Chief of Defense Force retired Major General Moosa Ali Jaleel and former MNDF Male Area Commander retired Brigadier General Ibrahim Didi.
All are facing charges under Article 81 of the Penal Code, for the offence of “arbitrarily arresting and detaining an innocent person”.
Article 81 states – “It shall be an offense for any public servant by reason of the authority of office he is in to detain to arrest or detain in a manner contrary to law innocent persons. Persons guilty of this offense shall be subjected to exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.00”.
During the hearing held at Hulhumale Magistrate Court on Monday, Colonel Ziyad denied the charges while his defence lawyer Mazlaan Rasheed raised two procedural points.
In the first procedural point, Ziyad’s lawyer informed the court that the Prosecutor General (PG)’s decision to press charges against his client while not pressing charges against the MNDF officers who actively took part in bringing the judge to custody violated the principle of fairness and equality.
In his second procedural point, Rasheed questioned the court as to how the state had decided on the innocence of Judge Abdulla.
State Prosecutor Aishath Fazna argued that following orders at the time from the Commander in Chief, President Mohamed Nasheed, Colonel Mohamed Ziyad as the Head of Directorate took part in the operation carried out by the MNDF in arresting the judge.
Responding to the charges, Ziyad’s lawyer contended that the charges lacked fairness and equality while Article 81 of the Penal Code – which the charges are based on – had “constitutional issues”.
He stated that the article conflicted with powers of the police to arrest a suspect of a crime. This, he explained would arise if a person is arrested and then later released by court, which would deem that his arrest was unlawful and all officers who took part in the arrest should be prosecuted.
The state in response argued that it was at the sole discretion of the Prosecutor General to decide on whether to press charges or not, and said that Ziyad had been charged over the extent of his involvement.
The prosecutor further claimed that it was Ziyad who had given the briefings to the officers before the arrest was made and had also requested two MNDF lawyers to see if the action could be legally defended.
The state attorney said that the reason for not pressing charges against officers who actively took part in the action was that those officials were obliged to follow orders and that the officers were not in a position to determine whether their orders were lawful or not.
She also posed several questions to the defendants, including on what charges the judge was arrested, why he was not brought before a court of law within 24 hours as stipulated in the constitution and why he was not released after the Supreme Court had ordered to do so.
In response, Colonel Ziyad’s lawyer argued that his client was not in a position to call for the release of judge and had several other higher-ranked officers.
Responding to the claim, State Attorney Abdulla Raabiu – who also was in the state prosecution team – said that Ziyad was being charged because he took part in discussing on how the judge should be arrested, days before the arrest was made.
“When speaking about fairness, where was Abdulla Mohamed’s right to life, when he was detained in Girifushi Island for 22 days? Where was his right to freedom?” Raabiu questioned.
In concluding today’s hearings, Chief Judge of the three-member panel of judges stated that it would later decide on the procedural points taken by the defendants, as the court required time to review the PG’s procedures.
Former President Mohamed Nasheed, former Defense Minister Tholhath Ibrahim Kaleyfaanu and retired Brigadier General Ibrahim Didi all denied the charge of arbitrarily detaining Chief Judge of Criminal Court AbdullaMohamed.
An investigation led by Human Rights Commission of Maldives (HRCM) found the former President as the “highest authority liable” for the military-led detention of the Judge. The HRCM also identified Tholhath Ibrahim as a “second key figure” involved in the matter. Others included Brigadier General Ibrahim Didi and Chief of Defense Force Moosa Ali Jaleel.
Judge Abdulla Mohamed was taken into military custody after the former Home Minister Hassan Afeef wrote to Defense Minister Tholhath asking him arrest the judge as he posed a threat to both the national security of the country and a threat to the country’s criminal justice system.
Minister Afeef at the time of the judge’s arrest accused him of “taking the entire criminal justice system in his fist”, listing 14 cases of obstruction of police duty, including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.
In July 2012, Prosecutor General Ahmed Muizz pressed charges against the parties who had been identified in the HRCM investigation as responsible for the arrest.
Following the charges, former President Nasheed’s legal team challenged the legitimacy of the Hulhumale’ Magistrate Court in High Court, but the Supreme Court intervened and dismissed the claims by declaring the magistrate court was legitimate and could operate as a court of law.