The Maldives National Defence Force (MNDF) has received an order from the Supreme Court to release Chief Judge of the Criminal Court, Abdulla Mohamed.
However MNDF spokesperson Major Abdul Raheem told Minivan News this afternoon that the military has “not yet decided what do with that order.”
The MNDF refused to release the judge on a Supreme Court order last night, requesting that it be delivered during ‘official hours’. Minivan News understands that President Mohamed Nasheed met with the Chief Justice of the Supreme Court this morning.
Chief Judge Abdulla Mohamed was arrested for corruption and for “allowing his judicial decisions to be determined by political and personal affiliations and interests”, Foreign Minister Ahmed Naseem said in a statement today.
The arrest of the judge caused a spike in political tensions across Male’, coming so soon after he opened the court late at night to order that the arrest of DQP politicians for “hate speech” was unlawful.
“[Judge Abdulla’s] repeated failure to comply with constitutional requirements regarding the individual integrity and competence of judges has been compounded by the failure of normal constitutional checks and balances to hold him accountable to the society he is supposed to serve,” read the Foreign Ministry’s statement.
“The Government of the Maldives fully supports and will always protect judicial independence,” Naseem said today. “However, judicial independence does not mean that judges are above the law and can behave as they see fit – contrary to the laws of the land. A judge is a citizen of the Maldives – no more or less important than any other citizen”.
Political tension erupts
The civil, criminal and high courts have cancelled hearings in protest against the arrest of the Chief Judge Abdulla Mohamed. The High Court, Supreme Court and Prosecutor General (PG) Ahmed Muiz demanded the release of the judge.
Muiz told local media that police must consult the PG before taking a judge into custody.
The Criminal Court also issued a court order today ordering the PG to prosecute within the next three days the Chief of Defence Forces and others involved in “contempt of court”.
A group of lawyers filed a similar case at the High Court after the military ignored court orders from both the High Court and Supreme Court for Judge Abdulla Mohamed’s immediate release.
Upon receiving the police summons yesterday, Judge Abdulla had filed a case at the High Court requesting that the summons be cancelled or overturned. The court issued an order halting the summons pending a ruling on the case.
Following his arrest, the High Court issued a court order around 2:00am Tuesday morning for the immediate release of the judge. The High Court noted that as article 12 of the Judges Act specifies procedures for the arrest of a sitting judge.
Chief Justice Ahmed Faiz released a statement after midnight calling for the immediate release of Judge Abdulla, noting that a judge could only be arrested on criminal charges with a warrant from a higher court.
Only the PG is authorised by the Judges Act to seek such an arrest warrant, the Chief Justice noted.
“The day these principle are demolished is the darkest and gloomiest time in the life of a nation,” the statement reads.
The apex court also issued a court order around 5:00am for Judge Abdulla’s immediate release.
Former President Maumoon Abdul Gayoom’s Progressive Party of the Maldives (PPM) also called for the release of the judge, claiming that the government had “completely destroyed the country’s hard earned democracy”.
The Human Rights Commission of Maldives (HRCM) meanwhile called on authorities to respect article 24 of the constitution, which states, “Everyone has the right to respect for his private and family life, his home and his private communications.”
However the Foreign Ministry said that Abdulla Mohamed had violated the Bangalore Principles on judicial conduct and independence.
“All the time, Abdulla Mohamed’s actions are becoming more blatant – from asking children who have been sexually abused to act out the crime in court, to repeatedly releasing opposition figures brought before the courts for serious crimes including assault and incitement to hatred or violence,” Naseem said.
“As the International Commission of Jurists (ICJ) made clear following their recent assessment of the state of the Maldives judiciary, judicial independence is a responsibility requiring accountability – a point clearly reflected in the Constitution of the Maldives. This accountability includes a requirement of individual competence and integrity by judges in their proceedings: including issues of actual or perceived bias, prejudice, or conflicts of interest and ethical behaviour outside of office, requiring continuous responsibility to demonstrate high moral character,”
“Unfortunately, it is clear, in contravention of the Bangalore Principles, that Abdulla Mohamed considers judicial independence to mean that he can do whatever he likes, and can act with total impunity”.
The Judicial Services Commission (JSC), the watchdog body supposedly responsible for ensuring the good conduct of judges, “is itself dominated by judges and opposition politicians”, the Foreign Ministry stated.
An attempt by the JSC to take action against Abdulla Mohamed following allegations of political bias after he appeared on TV saying “this government is a dying government” were overturned by the judge’s allies in the lower courts, Naseem argued.
The Civil Court in November 2011 ordered the JSC to take no action against Abdulla Mohamed, until the court reached a verdict in the case filed against him.
Judge Maryam Nihayath said at the time that if the JSC took any further action against Abdulla Mohamed while the case was in court, “it might disrupt the case and Abdulla Mohamed would suffer irreparable damages”.
Former President’s member on the JSC and outspoken whistleblower, Aishath Velezinee, told Minivan News at the time that the JSC’s investigation of Abdulla Mohamed was “the first time the JSC had ever completed an investigation into a judge’s misconduct.”
“There are many allegations against Abdulla Mohamed, but one is enough,” she said. “If the JSC decides, all investigation reports, documents and oral statements will be submitted to parliament, which can then decide to remove him with a simple two-thirds majority.”
“Sadly, as we have seen time and again, the JSC has not been able to fulfil its constitutional task of holding judges like Abdulla Mohamed – who is representative of a small minority of judges who abuse their position to protect themselves and their political allies – to account”.
The allegations against judge Abdulla Mohamed were originally forwarded to the President’s Office in 2005 by then Attorney General Hassan Saeed, current leader of the Dhivehi Qaumee Party (DQP). His party is presently attacking the government not only for its interference in the judiciary, but of harbouring “Christian priests”, “introducing other religions into the country”, “encouraging vice”, and accepting “statues for praying” from other SAARC countries during the recent summit in Addu.
Those allegations, concerning Abdulla Mohamed’s request that an underage victim of sexual abuse reenact her abuse for the court, were dropped when the JSC decided not to proceed with the investigation on July 30, 2009.
“With the JSC unwilling or unable to act, responsibility to reign-in judges who break the law should fall to higher judicial authorities. However, senior judges have proved time and again that they are not willing to take action against one of their own – destroying, in the process, public confidence in the judiciary,” Naseem said today.
It had therefore fallen to the President, “as the ultimate guarantor of the Constitution”, to resolve the situation, Naseem stated.
“The President could no longer sit by and watch as a minority of judges destroy public trust in the judiciary and make a mockery of the laws of the country. Abdulla Mohamed has therefore been arrested.
“This is not a move against the judiciary of the Maldives – but rather against an individual who has repeatedly broken the law and who should be held accountable for his actions,” the Foreign Minister said.
Judges under scrutiny
In October 2011, the ruling Maldivian Democratic Party (MDP) appealed for assistance from the international community over the “increasingly blatant collusion between politicians loyal to the former autocratic President, Maumoon Abdul Gayoom, and senior members of the judiciary – most of whom were appointed by Gayoom during his thirty years of power.”
The MDP statement also referred to the corruption trial of Deputy Speaker of Parliament Ahmed Nazim, charged with multiple counts of defrauding the former Atolls Ministry, which remains “indefinitely delayed.”
In an interview with Minivan News in September 2011, former chairman of the Special Majlis Drafting Committee responsible for the new Constitution claimed that the Supreme Court “and key elements within the judiciary are still controlled by Gayoom – directly or indirectly.”
“Face facts – they are issuing instructions to the trial courts, saying ‘Case X, stop proceedings, we’ll take that over,'” Ibra said.
“Who ever heard of an appellate court taking over a trial court’s jurisdiction? I don’t know of any instance in any democratic country, anywhere in the world, where an appellate court will take over a trial court.
“Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far. What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision.”