Criminal cases in PG leadership absence unconstitutional, says Drug Court judge

Any trials of criminal cases in the absence of a prosecutor general (PG) and a deputy PG violates the constitution, Drug Court Judge Mahaz Ali has said.

Writing on his personal blog, Mahaz disagreed with the attorney general’s (AG) recent suggestion that the official in the senior most position at the PG office must take over the PG’s responsibilities.

AG Mohamed Anil claimed the country was in the midst of a “state of necessity” in the aftermath of acting PG Hussain Shameem’s resignation earlier this week.

The doctrine of necessity is the basis on which extra-legal actions by state actors, designed to restore order, are deemed constitutional.

Both the Maldivian Democratic Party (MDP) and the Maldives Bar Association have also spoken out against the government’s stance on the matter.

State of necessity

Mahaz wrote that the state of necessity argument was valid only if there was no legal solution, suggesting that there was no reason President Abdulla Yameen could not propose a name for approval by the People’s Majlis.

“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.

“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”

Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, President Yameen said he will only submit a new nominee to the newly elected house – set to convene on May 28.

After a drawn out nomination process, Yameen’s previous choice for the role – his nephew, Maumoon Hameed – failed to gain the required number of votes in parliament last month. In contrast to the previous session, pro-government parties will enjoy a healthy majority in the 18th Majlis.

Judge Mahaz argued that the Supreme Court order on 6 February – which ordered criminal courts to accept cases filed by the PG’s Office – did not provide a solution, only mentioning how to act in absence of a PG. The Supreme Court order was prompted by the Criminal Court’s January decision to refuse new cases until a new appointment was made.

Mahaz also referred to previous case law regarding the Attorney General’s Office, noting that no superior court had deemed similar instances to be ‘situations of necessity’ requiring the next in line to take charge of the office.

In July 2010, the eight Civil Court judges unanimously decided they would not proceed with civil cases in the absence of an AG following then-AG Husnu Suood’s resignation.

Violation of independence

The Bar Association of the Maldives has also joined the debate, arguing that the AG’s advise was inconsistent with the Prosecutor General Act, and that Shameem’s resignation had created a leadership vacuum.

The resignation of the deputy PG while the position of PG was vacant had left the office with no official who could now assume its legal responsibilities, the association said, arguing state prosecutors cannot represent the PG in the courts in the current situation.

“Given that the prosecutor general’s position is an independent and impartial position, this office believes the government’s exertion of influence by ordering state prosecutors to attend courts is a violation of the office’s independence,” the association said in a statement.

Despite the Prosecutor General’s Act requiring the appointment of a new PG within 30 days of the position’s vacancy, Shameem has headed the office for over five month’s following the resignation of his predecessor Ahmed Muiz in November.

The Criminal Court was forced to cancel more than 100 cases last week as state prosecutors refused to attend hearings, doubting their current legal capacity to represent the PG’s Office.

The Hithadhoo Court in Addu City is conducting criminal trials, however, and is issuing verdicts in the absence of a state prosecutor. Court officials told local media on Thursday that they did not accept the justification of absence put forth by lawyers from the PG’s Office.

In his resignation statement, Deputy PG Shameem had said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses, and “unreasonable obstacles” in filing cases at the court.

The President’s Office put out a third call for names this week, claiming the previous number of applicants had been low during the second call. Shameem had expressed interest in the position both times, while local media has speculated that a third call will allow Hameed to resubmit his application.

The MDP has also commented on the current situation, accusing President Yameen of nepotism:

“In contravention to principles of good governance in democratic countries, it is evident is more for the president in this current state to appoint his nephew or other relatives to the position of Prosecutor General.”


114 criminal hearings cancelled as state prosecutors refuse to attend court for third day

The Criminal Court has cancelled hearings in 114 criminal cases as state prosecutors refused to attend trials for a third day.

State prosecutors claim they are now “in a legal void” in the absence of a Prosecutor General (PG) or a deputy PG. Former PG Ahmed Muizz resigned in November shortly ahead of a no confidence motion at parliament, while Deputy PG Hussein Shameem resigned on Monday citing the Criminal Court’s “obstruction” of criminal justice.

Attorney General Mohamed Anil has said Assistant Prosecutor General Ahmed Hameed Fahmy must take over the responsibilities of the PG.

The leadership vacuum at the PG office “halts the criminal justice system and endangers public peace,” Anil said in a six page legal opinion sent to President Abdulla Yameen. The PG office must continue with its responsibilities in order to uphold the rule of law, he added.

Meanwhile, the Hithadhoo Court in Addu City is conducting criminal trials and issuing verdicts in the absence of a state prosecutor. Court officials told local media that the court did not accept the justification of absence put forth by PG office lawyers.

President Abdulla Yameen called Deputy Prosecutor General Hussein Shameem’s resignation “irresponsible” and said criminal cases must proceed at the courts.

Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, Yameen said he would only submit a new nominee to the newly elected 18th parliament which is set to convene on May 28.

Yameen’s Progressive Party of the Maldives (PPM) holds a majority in the new parliament. The current Majlis, dominated by the Maldivian Democratic Party (MDP), had rejected Yameen’s nephew Maumoon Hameed for the position in March.

The President’s Office has put out a third call for applicants claiming the number of applicants had been low during the second call. Shameem had expressed interest in the position both times. Local media speculates a third call will allow Hameed to resubmit his application.

Chief Justice Ahmed Faiz Hussain said criminal cases can continue even with the leadership vacuum at the PG.

“The Constitution does not recognize the post of a Deputy Prosecutor General. What the Constitution accepts is a Prosecutor General. About four months have passed since we last had a Prosecutor General. That issue has been already reviewed. The situation has not changed,” Faiz said, referring to a Supreme Court order on February 18.

The order was issued in response to the Criminal Court’s refusal in January to proceed with all criminal trials in the absence of a PG, and refusal to begin new trials in February.

The Criminal Court released a statement today announcing that it will abide by the Supreme Court order and continue conducting cases.

In a resignation statement, Shameem said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses and “unreasonable obstacles” in filing cases at the court.

“These issues obstruct the proper functioning of the criminal justice system. I am deeply saddened to note the extreme delay on the part of those who have the power to address these issues,” he said.

PG Office Spokesperson Hussain Nashid was not responding to calls at the time of press.


Thirty percent of cases rejected by Criminal Court in past three months

The Prosecutor General’s Office has revealed that the Criminal Court has rejected 120 out of 383 cases submitted over the past three months.

At a press conference held on today (April 3), Deputy Prosecutor General (PG) Hussain Shameem stated that the total number of cases rejected and returned by the Criminal Court had now reached 435.

The Criminal Court had previously refused to accept new cases from the PG’s office, citing the Majis’s failure to approve a new candidate within the constitutionally stated period after or Ahmed Muiz’s November 2013 resignation.

The backlog of cases pending at the PG’s Office reached 533 as a result of the Criminal Court’s stance, before the court resumed acceptance of cases after a Supreme Court intervention.

Shameem stated today that the Criminal Court has still returned 120 cases since that time.

After the Criminal Court introduced new regulations governing the procedures for submitting cases in February, it subsequently rejected 60 cases forwarded from the PG’s Office, prompting Shameem to accuse the court of usurping powers reserved by the Supreme Court.

Shameem today revealed that one of the justifications given by the court when returning cases is that the accused is not originally from the capital city Malé where the court is located, claiming that hence the jurisdiction therefore falls to the relevant island magistrate court.

Shameem claimed that the Criminal Court can indeed preside over these cases as the crimes were committed in Malé and also because referring the cases to island magistrate courts would five rise to further administrative complications.

“The objective of the law is also to provide services conveniently. This is why the law is in such a way that allows superior courts to preside over all types of cases,” said Shameem.

“However, things are currently not proceeding in a way that fulfills the objective of this law,” Shameem claimed.

He further added that the PG’s Office has again appealed to the Supreme Court to assist in finding a solution to the matter.

According to Shameem, another reason the courts have used in returning cases is the state’s failure to appoint interpreters in cases where there are foreign witnesses.

Shameem explained today that the law states the provision of interpreters to fall under the mandate of the court presiding over the particular case in question.

After disputes with court staff over unpaid overtime, local media reported the court had been forced to curtail working hours due to budgetary restraints.

The deputy PG stated that police had sent 829 cases in the past three months to his office after completion of investigation.

He further revealed that the office had sent 932 cases to various courts in the past three months, adding that 356 other cases were currently prepared to be forwarded to a court after the prosecution’s work has been completed.

According to Shameem, the cases recently submitted include 383 cases forwarded to the Criminal Court, 210 cases submitted to the Drug Court, 22 cases submitted to the Juvenile Court, and 317 cases submitted to various magistrate courts around the country.


Deputy PG calls on authorities to take religious extremism more seriously

Deputy Prosecutor General Hussein Shameem has called on authorities to take terrorism issues more seriously, noting the most common source comes from religious extremism.

”We should become more proactive and stop complaining about the missing laws,” he told Minivan News today. ”There are things we can still do to curb crimes although some of the necessary laws are still not passed.”

Shameem noted that the current Terrorism Act was adequate, but the lack of laws such as the Evidence Act was an issue.

Speaking at a ceremony held to commence a police terrorism-training course last night, Shameem told attendees that past incidents of terrorism occurred in the Maldives due to a lack of discussion on the issue of religious extremism.

While the absence of  laws to stop some types of crimes was a problem, Shameem stated that it was not a reason for police to stop work on combating them. He advised authorities to follow international best practice in a manner that respects suspects’ constitutional rights.

He also said that the police must be two steps ahead when laws pertaining to the issue come into existence in the Maldives.

Shameem’s comments echoed those of the Minister for Islamic Affairs Sheikh Mohamed Shaheem Ali Saeed,who has also suggested that religious differences in the country could be solved “if we sit down and share religious information”.

The minister’s comments followed Malé City Council’s closure of the Dharumavantha Rasgefaanu mosque after the council received complaints from the Home Ministry that the mosque was being used by an extremist congregation who had been advocating for the destruction of the current government.

The congregation were praying that Allah would give victory against the “irreligious” government which attempts to obstruct the spreading of Allah’s message and to shut down mosques. Requesting victory, they also asked Allah to destroy and send his wrath upon military and police officers implementing the government’s orders.

In August 2013, Sheikh Shaheem had expressed concern that Friday prayers conducted in the mosque were not conducted by state authorised Imams.

Terrorist risk

In May 2013, the then-Chief of Defence Force Major General Ahmed Shiyam warned of a rising risk of terrorist attack in the Maldives, during a joint local and US military inauguration to establish a level of alerts for terrorism in the country.

Shiyam cautioned against assuming the country was completely safe from terrorist attacks simply based on the fact that no major terrorist activities have been uncovered in the country to date, warning there was an increased risk attacks stemming from “religious extremism and political turmoil”.

“Some [Maldivian] youth have already joined up with terrorist organisations. They are now travelling to various war zones and locations and enrolling in a number of terrorist training camps,” said Shiyam.

“Although some of these youth have managed to travel back to this country, the whereabouts of others remain unknown. This is a warning sign of how terrorism is spreading across our country,” Shiyam said at the time.

He also said that it was immensely important for the security forces to be well-trained in counter-terrorism measures and to ensure the forces remain ready to respond should such an incident occur.

In April 2013, an article published by the Combating Terrorism Center (CTC) entitled ‘The Threat from Rising Extremism in the Maldives‘ stated that in April 2006, a Maldivian national, Ali Jaleel, and a small group of jihadists from the Maldives attempted to travel to Pakistan to train for violent jihad in Afghanistan or Iraq.

The only incident of a terrorist attack on Maldivian soil was the Sultan Park bombing in September 2007.

A bomb exploded in the Malé’s park, wounding 12 foreigners. The three men arrested and later jailed for the bombing confessed that their goal was to “target, attack and injure non-Muslims to fulfill jihad,” noted the CTC report.

After the investigations of security services led to Darul-Khair mosque on Himandhoo Island, police were confronted by 90 islanders, who had armed themselves with batons and knives, vowing to defend the mosque to the last man.

In the ensuing skirmish, a soldier was taken captive and another’s hand was severed. Shortly afterwards a video discovered on an Al Qaeda forum was found to contain footage taken inside the Dhar-al-khuir mosque moments before it was raided by police.

Evidence suggests that three Maldivian jihadists planned to establish a terrorist group in the country around 2007-2008 and send members for military training in Pakistan.