Tag: high court

JSC suspends Chief Judge hours after High Court postpones case against JSC

The Maldivian Democratic Party (MDP) has announced that the High Court has temporarily suspended the hearings of the case against Judicial Service Commission (JSC) filed by the party’s presidential candidate, former President Mohamed Nasheed.

Nasheed is challenging the legitimacy of the JSC’s appointment of the three-member judges panel to the Hulhumale Magistrate Court to hear Nasheed’s criminal trial.

The party’s remarks come just a day after High Court cancelled a hearing of the case in which local media reported that the court was to decide on counter-procedural issues taken by JSC. The JSC has contended that the High Court did not have the jurisdiction to look into a matter.

Member of Nasheed’s legal team, Hassan Latheef, told Minivan News on Wednesday that the hearing was cancelled after the judge who was presiding over the case opted to “take leave” for the day.

However, shortly after the cancellation, the JSC declared that the commission had indefinitely suspended the Chief Judge of High Court Ahmed Shareef – who also happened to be among the judges presiding over Nasheed’s case against the JSC.

JSC Chair and Supreme Court Justice Adam Mohamed Abdulla insisted at a press conference yesterday that the disciplinary action had no relation to the former president’s case.

In a press conference held today at the party headquarters, Vice Chairperson of MDP Ali Shiyam said the party saw the High Court’s decision to withhold the hearings until next July as an encouragement for Nasheed and the party to continue its nation-wide presidential campaigning.

Shiyam added that if no further disruptions came from the courts, it would mean an additional strength to the party in their bid to secure the presidential elections in the first round. Shiyam also described the move as an end to the obstructions leveled against Nasheed by the courts and the judiciary.

“President [Nasheed] will not have to halt the campaign and come to Male to appear before the court. That is a new strength, a new encouragement to our campaign,” Shiyam said.

Meanwhile, another member of Nasheed’s legal team, Hisaan Hussain, tweeted that despite the indefinite suspension of Judge Shareef, neither the JSC nor the acting chief judge appointed to fill the vacancy of Judge Shareef would be allowed to reshuffle the judges presiding over the case.

Speaking to Minivan News, MDP Spokesperson MP Imthiyaz Fahmy said the move to hold the hearings was also an assurance to the public and the international community that former President Nasheed would be able to take part in the elections, as was unlikely that Nasheed would be given a criminal sentence.

He added that the party were facing a lot of challenges compared to other political parties who are also campaigning for the election.

“Because of the ongoing case concerning President Nasheed, the party has had to spend equal time and resources on its legal battles while running a nation wide presidential campaign. The MDP is battling with everything including the judiciary, the Prosecutor General and all the injustices faced by ordinary people,” he said.

Fahmy further added that the previous scheduling of Nasheed’s cases and sudden cancellations resulted in severe financial losses to the party, as each campaign event is organised by the hard work of party members across the country.

However, Fahmy also echoed Shiyam’s statement that the suspension of the case marked the end of Nasheed’s legal battle, stating that the High Court’s decision would allow the party to focus its energy on campaigning rather than winning court battles.

The Hulhumle-based magistrate court is currently hearing the case against the former President over the controversial detention of Chief Judge of Criminal Court Abdulla Mohamed by the Maldives National Defence Force (MNDF) during the last days of his presidency.

During the first trials of the hearing, Nasheed’s legal team contested the legitimacy of the magistrate court.

However, in a Civil Court case filed by lawyer Ismail Wisham, which was subsequently taken over by Supreme Court – and to which Nasheed’s legal team also intervened – endorsed the legitimacy of the much-debated Hulhumale Magistrate court.

As soon as the trials resumed, Nasheed’s legal team challenged the legitimacy of the appointment of the three-member judges panel to the magistrate court. The former president’s counsel is arguing that appointing judges to specific cases was not the JSC’s responsibility, but that of the chief judges of respective courts.

Minivan News contacted a High Court media official but was told the court had no comment on the case.

JSC suspends High Court Judge, appoints acting replacement

The JSC has meanwhile appointed Judge Abdul Rauoof Ibrahim as acting Chief Judge of High Court until the JSC concludes its inquiry into complaints filed against the suspended Chief Judge of High Court Ahmed Shareef.

Speaking to Minivan News, JSC Media Official Hassan Zaheen confirmed the appointment and said that Judge Abdul Rauoof would be in charge of running the High Court until the JSC concludes its inquiry.

The JSC on Wednesday issued Judge Shareef an ‘indefinite suspension’ following a complaint filed by the remaining judges of the court against him during last year.

The ruling came hours after the High Court suspended hearings against the former President.

A similar case was lodged last April in which eight judges of the High Court’s nine-member bench lodged a case with the JSC against Chief Judge Shareef, for suspending the Hulhumale Magistrate Court’s trial of former President Mohamed Nasheed without registering the case in court.

The suspension coincided with the cancellation of a hearing of a High Court’s case in which Nasheed challenged the legitimacy of the JSC’s appointment of the three member panel of judges to Hulhumale Magistrate Court.

High Court Chief Judge Shareef was summoned to the JSC earlier this month, almost a year after the complaint was lodged.

According to local media reports, the decision was approved at a JSC meeting today with three votes in favour and one against. Attorney General Aishath Bisham, President’s Member Mohamed ‘Reynis’ Saleem and Criminal Court Judge Abdulla Didi voted in favour while Public Member Shuaib Abdul Rahman voted against the motion.

Lawyers’ representative Ahmed Rasheed and Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan reportedly abstained while High Court Judge Abdulla Hameed did not participate in the vote.

Speaker Abdulla Shahid and Majlis Member MP Gasim Ibrahim did not attend the meeting.

Shuaib told private broadcaster Raajje TV following the meeting that the decision was made in violation of due process and JSC procedures as a report regarding the allegations against the chief judge was not presented to the commission members.

The motion or petition to suspend Shareef was proposed by Attorney General Bisham, who is yet to receive parliamentary consent for her appointment.

Meanwhile, at the press conference this evening, Justice Adam Mohamed refused to reveal either the details of the vote or the members in attendance despite repeated queries from reporters.

He also refused to state which High Court judge would take over the chief judge’s administrative functions.

The opposition Maldivian Democratic Party (MDP) – of which Nasheed is the presidential candidate – described the actions by the JSC as attempts to influence the case filed by Nasheed against the JSC.

“We condemn the actions of the Maldivian courts, which violate the electoral rights of nearly 50,000 Maldivian Democratic Party members. The disruption to President Nasheed’s campaign trip to Raa atoll is an unnecessary, politically motivated challenge,” the party contended yesterday.

“The JSC continues to try and cover up the unconstitutional manner in which they appointed the Hulhumale’ Magistrate Court bench through attempts at influencing the judiciary, while the Courts create logistical challenges such as today’s.  However, it does not stop affect the spirit of President Nasheed’s campaign,” said MP Mariya Ahmed Didi.

Likes(0)Dislikes(0)

High Court cancels hearing on Nasheed’s case against JSC, after judge takes last minute leave

The High Court has cancelled the scheduled hearing set to take place today concerning the case filed by former President Mohamed Nasheed against the Judicial Service Commission (JSC) contesting the legitimacy of the appointment of the three-member panel of judges in his trial.

The JSC has previously contested the High Court’s jurisdictionto rule on the procedural issues noted by Nasheed’s lawyers. The former President is being tried for his detention of Chief Judge of the Criminal Court, Abdulla Mohamed, prior to his controversial resignation in February 2012.

A High Court official confirmed to Minivan News that the hearing was cancelled but did not state a reason for the cancellation.

However, Nasheed’s legal team member Hassan Latheef told Minivan News the decision to cancel the hearing was made after the judge who was presiding over the case opted to “take leave” for the day.

“[High Court] officials called us and informed that the judge presiding over the case was on leave today, and therefore the hearing was cancelled,” said Latheef.

The cancellation of the hearing came just a few minutes before it was set to begin, much to the dismay of Nasheed, the opposition Maldivian Democratic Party (MDP)’s presidential candidate – who had cut short his campaign trip to Raa Atoll to appear for the hearing.

“We are very disappointed over the court’s decision which clearly shows its motive to obstruct Nasheed’s presidential campaign. Due to this [behaviour] Nasheed is barred from having the same opportunities as other candidates to campaign in the elections,” Latheef said, expressing his frustration over the cancellation.

Arguments

During the last hearing in which both the parties argued over procedural issues, Nasheed and his counsel sought to clarify the JSC’s procedural points contending that they were not completely clear.

The High Court judges panel gave Nasheed’s lawyers the opportunity to ask the JSC’s legal representation for clarification, while posing additional questions regarding the same issue themselves.

They then stated that it was unclear why the JSC had asked for the counsel of the Supreme Court in deciding the composition of the bench, and the justification under which the JSC considered the Supreme Court’s counsel to be of the same legal weight as a ruling of the court.

In responding to the questions posed to them, the JSC revealed that the names of the magistrates they had sent to the Supreme Court for their counsel were not the names nominated by the Hulhumale’ Magistrate Court.

The High Court bench questioned the JSC as to if there was a procedure in place which allowed for the assignment of judges to specific cases.

The JSC responded that there were certain circumstances in which judges can be assigned for specific cases, adding that the commission had done so previously in the past.

The bench further asked the JSC several times as to whether they considered the Supreme Court’s ‘counsel’ a ‘ruling’. The JSC’s legal team confirmed that they did.

The JSC’s legal representation stated that the Hulhumale’ Court Bench had been established under the counsel of the Supreme Court, and that this held the weight of a Supreme Court ruling.

Nasheed’s legal team contested this, stating that ‘counsel’ and a ‘ruling’ of the Supreme Court could not be considered to hold the same strength.

Upon receiving answers for some of the questions posed, Nasheed’s lawyers requested for more time to prepare a response, which the bench granted.

Request for intervention

Meanwhile, former MNDF Male Area Commander retired Brigadier General Ibrahim Mohamed Didi and his legal team have requested to intervene in the ongoing court battle between the former President and the JSC.

The retired Brigadier General is facing the same charges as Nasheed over the detention of Judge Abdulla Mohamed during January 2011, which eventually led to a police mutiny and finally, the controversial resignation of Nasheed from the presidency.

Didi is represented by lawyer Ismail Wisham who previously lodged a case contesting that the Hulhumale’ Magistrate Court was set up in contradiction of laws dictating the formation of courts. The case was later taken over by Supreme Court which later endorsed the legitimacy of the much debated magistrate court.

In response to the request made by Didi, local media reported that the High Court had claimed it would allow the intervention as soon as it had ruled on the procedural issues raised by the JSC.

Likes(0)Dislikes(0)

Supreme Court takes over Civil Court case on legitimacy of transfer of power

The Supreme Court has taken over a case filed at the Civil Court by dismissed Human Rights Minister Dhiyana Saeed, who had requested a ruling declaring that the transfer of power on February 7, 2012 was illegitimate.

The Supreme Court ordered the lower court last week to suspend its proceedings and send over the case files before 3:00pm on Thursday (May 23). The court order (Dhivehi) stated that the apex court would determine whether the Civil Court had jurisdiction to hear the case.

The court order was issued following a request by the Attorney General’s Office (AGO) for the Supreme Court to decide on the question of jurisdiction.

At the first hearing of the Civil Court case, the AGO requested proceedings be halted pending a ruling from the Supreme Court. However, the judge decided to proceed with the hearing in the absence of a court order by the Supreme Court.

The Supreme Court order was revealed today by the recently launched official twitter account of the Civil Court.

Dhiyana Saeed – also former SAARC Secretary General and former President Mohamed Nasheed’s first Attorney General – had first submitted the case to the High Court, which however decided that it was outside the appeal court’s jurisdiction.

The case was filed at the Civil Court earlier this month.

The defendant in Dhiyana’s lawsuit was Speaker of Parliament Abdulla Shahid, who recently defected from the government-aligned Dhivehi Rayyithunge Party (DRP) to the opposition Maldivian Democratic Party (MDP) and is currently campaigning for former President Nasheed.

Nasheed resigned in the wake of a violent mutiny by Special Operations (SO) police officers, who assaulted government supporters, ransacked the ruling party Haruge (meeting hall), protested at the Republic Square, clashed with the military, vandalised the police headquarters and stormed the state broadcaster on the morning of February 7.

Saeed’s lawsuit noted that Shahid was the state official with the authority under article 121 of the constitution to declare the office of the president vacant, should an incumbent president resign or vacate the office.

“It was the Speaker of Parliament who declared the office of president vacant, be it had he done it knowingly, mistakenly or unknowingly,” Saeed told newspaper Haveeru. “This doesn’t mean Shahid committed a criminal offense. It also does not mean that he partook in the events or that he made the decision [maliciously].”

She contended that Speaker Shahid had failed to look into the circumstances surrounding Nasheed’s resignation before accepting the letter.

Saeed told Minivan News that she and her co-counsels “stopped short of asking for Nasheed’s reinstatement,” adding that she did not have “the locus standi to ask for a particular relief.”

“If the ruling comes in our favour, it might be possible for Nasheed to institute a second proceeding for reinstatement. As far as this case is concerned, our interest is in the rule of law and invoking constitutional process to uphold the legal order as stipulated by the constitution,” Saeed explained at the time.

Supreme Court intervention

Meanwhile, in her report to the United Nations Human Rights Council following a visit to the Maldives, UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul observed that it was “troublesome that some of the Supreme Court’s interventions are perceived as arbitrary and as serving the judges’ own personal interests.”

“Moreover, the Supreme Court is said to have taken away cases directly from the superior courts before they were adjudicated, without explaining which criteria or procedures were applied,” Knaul wrote.

The Supreme Court has on a number of occasions issued writs of mandamus taking over cases from lower courts. In November 2012, the Supreme Court instructed the High Court to suspend proceedings on an appeal by former President Nasheed concerning the legitimacy of the Hulhumale’ Magistrate Court.

At the same time, the apex court ordered the Civil Court to send over all files on a case submitted by a lawyer, Ismail Visham, disputing the legal status of the Hulhumale’ Magistrate Court.

The Supreme Court also intervened in litigation concerning a border control project awarded to Malaysian mobile security firm Nexbis.

Transfer of power

Following her dismissal from the cabinet by President Dr Mohamed Waheed last year, Saeed released a personal memoir alleging that Nasheed’s political rivals had conspired to assassinate him.

Saeed alleged that the controversial transfer of presidential power on February 7 was the result of a premeditated and well-orchestrated plan, and questioned the findings of the Commonwealth-backed Commission of National Inquiry (CoNI), which concluded that Nasheed had resigned voluntarily.

In January 2013, parliament’s Government Oversight Committee commenced a review of the CoNI report and heard testimony from six of the highest-ranking officers of the security services at the time of the transfer of power.

Following its inquiry, Committee Chair MP Ali Waheed claimed that the report produced by CoNI was “flawed” based on the findings of the committee.

The CoNI report lacked “key information [senior police and military officers] had given” while “others claimed their information was wrongly presented,” the MDP MP said at the time.

Likes(0)Dislikes(0)

Nasheed contests JSC’s claim that Supreme Court ‘ruling’ and ‘counsel’ carry equal legal weight

The High Court has granted former President Mohamed Nasheed additional time to respond to procedural matters raised by the Judicial Services Commission (JSC) in the case submitted by his defense counsel, challenging the legitimacy of the three-member bench appointed by the JSC to his trial at the Hulhumale’ Magistrate Court.

The JSC, raising procedural issues, stated that the High Court does not have the jurisdiction to preside over the case submitted by the former president’s legal team.

Nasheed and his counsel stated several times during today’s hearing that the JSC’s procedural points were not completely clear.

The High Court judges panel gave Nasheed’s lawyers the opportunity to ask the JSC’s legal representation for clarifications, while posing additional questions regarding the same issue themselves.

They then stated that it was unclear why the JSC had asked for the counsel of the Supreme Court in deciding the composition of the bench, and the justification under which the JSC considered the Supreme Court’s counsel to be of the same legal weight as a ruling of the court.

In responding to the questions posed to them, the JSC revealed that the names of the magistrates they had sent to the Supreme Court for their counsel were not the names nominated by the Hulhumale Magistrate Court.

The High Court bench questioned JSC if there it is a procedure in place which allows the assignment of judges for specific cases.

The JSC responded that there were certain circumstances in which judges can be assigned for specific cases, adding that the commission had done so previously in certain cases.

The bench further asked the JSC several times as to whether they considered the Supreme Court’s ‘counsel’ a ‘ruling’. The JSC’s legal team confirmed that they did.

The JSC’s legal representation stated that the Hulhumale’ Court Bench had been established under the counsel of the Supreme Court, and that this held the weight of a Supreme Court ruling.

Nasheed’s legal team contested this, stating that ‘counsel’ and a ‘ruling’ of the Supreme Court cannot be considered to hold the same strength.

Upon receiving answers for some of the questions posed, Nasheed’s lawyers requested for more time to prepare a response, which the bench granted.

In concluding the hearing, the High Court judge’s bench stated that the next hearing of the case would be arranged in the near future, at which Nasheed’s legal team is expected to respond to the procedural matters raised by JSC.

The bench added that in an additional hearing which will be held closely following the next one, the High Court will reveal its ruling on the same matters.

JSC’s request to expedite case

In April, the JSC sent a letter to the High Court requesting that the case be expedited.

The letter was signed by JSC Vice Chair Criminal Court Judge Abdulla Didi, and it was later revealed that it had been sent without consultation with other members of the commission.

JSC member appointed from among the public, Sheikh Shuaib Abdul Rahman, told media that he believed the letter was sent under orders of JSC Chair Adam Mohamed, adding that the Chair did not have the authority to make such decisions without consulting the commission members.

“I believe that whoever advised for this letter to be sent has done so with the intention of influencing Nasheed’s case to be concluded in a particular way,” he had said at the time.

Shuaib’s contention was later backed by Speaker of Parliament Abdulla Shahid, who also sits on the commission.

However, JSC media official Hassan Zaheen stated that he did not believe that sending the letter would exert any undue influence or pressure, even though the JSC is currently looking into disciplinary matters concerning the Chief Judge of the High Court. He added that similar letters had been sent in the past at the discretion of the JSC Chair.

The case in question is one filed by the defense counsel of Nasheed, challenging the legitimacy of the panel of judges presiding over the case against him for the arbitrary detention during his administration of Criminal Court Chief Judge Abdulla Mohamed.

Nasheed and his party contend the case is a politically motivated attempt to convict and prevent him from contesting in the upcoming September 7 presidential elections.

Lawyers representing the JSC has even previously requested the High Court dismiss the case, contending the court did not have the jurisdiction to preside on the matter.

Upon accepting the case, the HIgh Court issued a stay order on Hulhumale’ Magistrate Court to suspend all criminal trials concerning the arrest of the judge until a ruling on the legitimacy of the bench is issued.

Likes(0)Dislikes(0)

Civil Court orders police to return all seized assets of accused drug lord

The Civil Court has ordered police to return all the assets seized from Adam Naseer that were confiscated during an investigation of his activities in 2010.

After the Criminal Court acquitted Naseer, the Civil Court ruled that there were no legal grounds for police to withhold the assets and ordered them returned in one month.

The Civil Court ordered police to return all the cash, three HSBC gold visa card, one HSCB silver card, one mobile phone SIM card, two HP laptops, a paper with the HSBC card’s pin code written on it, one CD, three papers containing information about Dhiraagu, a prepaid SIM card’s guide book, one Fujitsu laptop, his passport, one car and motorbike registration,  one speedboat registration and two cheque books.

Police searched Naseer’s home in Addu Atoll on June 30, 2009, where they found over MVR 6 million (US$461,500) in cash and a tin containing drugs outside his house. Police subsequently alleged that he was one of the top six drug lords in the Maldives.

However the Criminal Court acquitted Naseer on the grounds that the state had not been able to convince it that the money found inside his house was earned through drug trafficking, or that the tin containing money outside his house belonged to him. The state appealed the case at the High Court, which upheld the lower court’s verdict.

In May 2010 Naseer sued police seeking the return of the money.

Likes(0)Dislikes(0)

High Court appeal of 15 year-old rape victim’s sentence begins

The High Court appeal case for a 15 year-old rape victim sentenced to flogging and house arrest after she was found guilty of fornication began today (April 29).

The 15 year-old was convicted of premarital sex at the Juvenile Court on February 26 and sentenced to 100 lashes and eight months of house arrest, after confessing to fornication with another man. The confession was made during a separate investigation which was launched following the discovery of a dead baby buried in the outdoor shower area of her home.

The High Court trial that began today (April 29) was not open to the public, as the presiding judge exercised the authority to exclude the public “where the interest of juveniles or the victims of a crime so require”, as stated in Article 42 of the Constitution, according to local media.

High Court media official Ameen Faisal told local media that the Human Rights Commission of Maldives (HRCM) had also intervened in the case.

The victim’s state-appointed attorney filed the appeal with the High Court on April 1.

At the time, former Attorney General Aishath Azima Shukoor told local media the case had to be appealed because the Juvenile Court had taken statements from the witnesses in violation of procedure.

Shukoor also said the Juvenile Court ruling was in violation of Islamic Sharia as it had not considered psychological reports produced to the court.

Additionally, the child’s defence claimed her testimony was taken in violation of constitution and the charges against her were filed in violation of criminal procedure.

Sources from the girl’s island of Feydhoo in Shaviyani Atoll previously told Minivan News that concerns had been raised by islanders since 2009 that the minor was allegedly the victim of sexual abuse not just by her stepfather, but an unidentified number of other men on the island.

In June 2012, the girl gave birth to a baby which was later discovered buried in the outdoor shower area of her home. Her stepfather was later charged with child sexual abuse, possession of pornographic materials and committing premeditated murder. Her mother was meanwhile charged with concealing a crime and failing to report child sexual abuse to the authorities.

Council heads and senior civil society figures have slammed the judiciary, state authorities and welfare groups over their systemic failure to protect the 15 year-old girl.

Sentencing controversy

The 15-year-old’s case has brought international attention to the Maldives’ legal system, including the launch of an online Avaaz.org petition signed by over two million people that has threatened to put pressure the tourism industry. The sentencing of the minor has also come under high-profile public criticism from British multi-billionaire Sir Richard Branson, founder of the Virgin group of companies.

President Mohamed Waheed Hassan Manik’s government previously criticised the verdict, pledging earlier this year to review the use of flogging as a punishment for sexual offences – a practice it alleged in some cases actually serves to punish victims of rape and abuse.

Following the Juvenile Court’s ruling in February, Waheed stated on his official Twitter account: “I am saddened by the sentence of flogging handed to a minor. Govt will push for review of this position.”

However, the religious Adhaalath Party (AP) – which largely makes up the ranks of the Islamic Ministry and with which President Waheed’s Gaumee Ithiaad Party (GIP) entered into a coalition in March – endorsed the sentence.

“The purpose of penalties like these in Islamic Sharia is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts or torture,” read a statement from the party.

“If such sinful activities are to become this common, the society will break down and we may become deserving of divine wrath,” the Adhaalath Party stated.

Inadequate child protection measures

A Maldivian children’s rights NGO recently criticised child protection measures currently in place as “inadequate”, while urging government authorities to incorporate several key human rights obligations into domestic law.

NGO Advocating the Rights of Children (ARC) told Minivan News earlier this month that although the Maldives has signed and agreed to be legally bound by the provisions in the Convention on the Rights of the Child (CRC) and its Optional Protocols, the commitments have yet to be adopted into law.

ARC claimed that provisions outlined in the CRC had not been fully adopted by the state into domestic legislation, thereby limiting the promotion and protection of child rights.

“The recent case of a 15-year old girl, whose rights were violated and abused by her stepfather is a clear example of how domestic judicial and legal mechanisms failed to address and rectify the violation over a substantial period of time, at different levels,” ARC said.

“This is a situation where an individual complaint to the UN Committee could hold the government accountable even if the ‘domestic remedial system’, including judicial and legal mechanisms, fail to address the issue of abuse.

“Ratifying this optional protocol will help protect the rights of children as it could help reduce the number of cases in the Maldives where a lack of legislation, clarity and commitment to international human rights law allow serious injustices to proliferate,” ARC added.

Meanwhile, neglect and abuse of children were reported to have increased to an “alarming level“, compelling the the Maldives’ Ministry of Gender, Family and Human Rights to submit an amendment (April 7) that would transfer parental guardianship of children in cases of negligence.

Earlier this year, ARC called on the Maldivian government to pass legislation concerning the treatment of sexual abuse victims. The NGO also raised concerns over the potential impact on the state’s ability to prevent sexual offences following reductions to the state budget approved by parliament in December 2012.

Likes(0)Dislikes(0)

JSC asks High Court to expedite case concerning legitimacy of bench in Nasheed trial

The Judicial Service Commission (JSC) has requested the court expedite the case filed by the defense counsel of former President Mohamed Nasheed, challenging the legitimacy of the three-member bench appointed to his case.

The JSC made the request in a letter sent to the court last week. Lawyers representing the JSC previously requested the High Court dismiss the case, contending that the High Court did not have the jurisdiction to preside on the matter.

The JSC appointed the three member panel consisting of Judges Shujau Usman, Abdul Nasir Abdul Raheem and Hussain Mazeed to hear the former president Nasheed’s criminal trial – concerning criminal charges levied against him over the controversial detention Chief Judge of Criminal Court Abdulla Mohamed in January 2012.

However, following the Supreme Court’s ruling that the Hulhumale-based court was legitimate and could operate as a court of law – dismissing Nasheed’s contention that court was formed extra-legally – the former president’s legal team subsequently filed a case at High Court contesting the legitimacy of the bench appointed to hear the case.

Upon accepting the case, the High Court issued a stay order on Hulhumale Magistrate Court to suspend all criminal trials concerning the arrest of the judge, pending a ruling on the legitimacy of the court bench.

Speaking to local media on Monday, JSC Media Official Hassan Zaheen said the commission sent the letter last week.

“We are the respondents of the case and in that capacity, we requested the High Court to speed up the case,” Zaheen told local newspaper Haveeru.

Zaheen claimed the request made to the High Court was “not a new practice” and that the commission had previously made similar requests.

Meanwhile Nasheed’s Maldivian Democratic Party (MDP) has alleged that the JSC sent the letter to High Court in a bid to influence the outcome of the trial.

In a press statement released by the party, the MDP claimed the JSC had instructed the court to immediately make a ruling on the matter.

“If the JSC, as the respondent in the case, felt the case was being delayed, there is nothing wrong in asking the court to expedite the case. However, the MDP believes this is an attempt to influence the outcome of the case, as the JSC is sending its legal arguments in writing rather than speaking about them in the court room,” read the statement.

The MDP condemned the decision and alleged that the state’s judicial watch-dog was acting beyond its constitutional mandate.

The JSC has come under heavy scrutiny over its appointment of the panel of the judges – which several lawyers and members of JSC itself have claimed exceeded the JSC’s mandate.

Among the JSC’s critics include JSC member Sheikh Shuaib Abdul Rahman – the member appointed from among the public.  Sheikh Shuaib Abdul Rahman previously claimed the JSC had arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case after dismissing the three names first submitted to the commission by the Hulhumale’ Magistrate Court.

“Moosa Naseem (from the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Sheikh Rahman stated that the commission had referred to Articles 48 to 51 of the Judge’s Act as justification.

“But then I note here that the JSC breached Article 48 itself. They did not gather any information as per this article. They stated that it was due to the large amount of paperwork that needs to be researched that they are appointing a panel. However, this is not reason enough to appoint a bench,” he said.

Meanwhile, Speaker of Parliament Abdulla Shahid – who is also a member of the JSC – stated that he believed that the judicial watchdog had acted unconstitutionally in assigning magistrates to a particular case.

“In deciding upon the bench, the JSC did follow its rules of procedures. As in, it was voted upon in an official meeting and six of the seven members in attendance voted on the matter. The seventh member being the chair, does not vote in matters,” Shahid explained. “However, whether it is within the commission’s mandate to appoint a panel of judges in this manner is an issue which raised doubt in the minds of more than one of my fellow members,”

Other critics of the JSC include United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, who also argued that the appointment of the judges bench was carried out arbitrarily.

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said, responding to questions from media after delivering her statement in February.

Speaking to Minivan News previously, Kirsty Brimelow QC, one of three UK-based experts on former President Nasheed’s legal team, contended that the prosecution of his case before the Hulhumale’ Magistrate Court fell “below international standards for fair trial procedure”.

JSC Media Official Hassan Zaheen was not responding to calls at time of press.

Likes(0)Dislikes(0)

Parliament accepts bill seeking to abolish Hulhumale’ Magistrate Court

Parliament today accepted amendments to the Judicature Act submitted by Independent MP Mohamed ‘Kutti’ Nasheed to abolish the magistrate court in Hulhumale’.

The legislation (Dhivehi) was narrowly accepted for consideration with 32 votes in favour, 31 against as well as one abstention and sent to the Independent Institutions Committee for review.

The Independent MP for Kulhudhufushi South proposed the amendments in December 2012, following a controversial 4-3 Supreme Court ruling declaring the Hulhumale’ Magistrate Court legitimate.

The judgment cleared the way for the magistrate court to proceed with the trial of former President Mohamed Nasheed on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed in January 2012.

Nasheed’s formerly ruling Maldivian Democratic Party (MDP) disputes the legitimacy of the magistrate court, contending that it was created by the Judicial Service Commission (JSC) in violation of the Judicature Act.

Writing in his personal blog after submitting the amendments, MP Nasheed explained that he would have accepted the apex court’s decision as final and incontrovertible if Supreme Court Justice Adam Mohamed Abdulla – chair of the JSC – had recused himself.

“The [Hulhumale’] court was formed by the commission. The vote on forming the court was called at a meeting of the commission chaired by [Justice Adam Mohamed]. The case requesting the Supreme Court to declare the court legitimate was submitted by the commission chaired by the justice,” Nasheed wrote.

Justice Adam Mohamed “created the court, filed the case, and decided the case in his favour,” Nasheed wrote.

Echoing the criticism, former Attorney General Husnu Suood, who argued the case at the Supreme Court, described the decision at the time as “a case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, [tie-breaking] vote by JSC [president].”

Chief Justice Ahmed Faiz Hussain, Justice Abdulla Areef and Justice Muthasim Adnan had delivered the dissenting opinion ruling that the magistrate court was not established in accordance with the Judicature Act.

MP Nasheed’s amendments would meanwhile see the magistrate court abolished and its cases transferred to the superior courts (Criminal Court, Civil Court, Family Court, Juvenile Court and Drug Court) in Male’.

Moreover, an article would be added to the Judicature Act explicitly stating that the islands of Hulhumale’ and Vilimale’ should be considered part of Male’ City.

Vili-Maafanu and Hulhu-Henveiru are both electoral districts or constituencies in the capital with elected MPs and city councillors.

Legitimacy

In a blogpost in October 2012, Nasheed observed that the Judicature Act stipulates that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court, Drug Court and Juvenile Court).

According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island.

The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified, Nasheed contended.

In the latter blogpost on amending the law governing courts, Nasheed explained that the purpose of amending the Judicature Act was to “clarify the Majlis’ intent as the [Supreme Court] has made a decision that conflicts with the intent of the Majlis in passing the law.”

If a Supreme Court interpretation of an article or provision in an act of parliament was “not the outcome intended by lawmakers,” Nasheed suggested that the remedy was amending the law to ensure the desired effect.

If the amendments are passed and signed into law, Nasheed wrote, a magistrate court could not be set up in the capital Male’ on the pretext of “two or three articles in the Judicature Act”.

Hulhumale’ Magistrate Court

During the first hearing of former President Nasheed’s trial at the magistrate court, the ex-president’s lawyers raised procedural points challenging the legitimacy of the court, which were summarily dismissed by the three magistrates on the bench.

Nasheed’s legal team then appealed the magistrate court’s ruling on the procedural points at the High Court.

On November 4, 2012, the High Court granted a stay or an injunction temporarily suspending the trial pending a ruling on procedural points.

The injunction prompted the Hulhumale’ Magistrate Court to announce that it had suspended all ongoing cases as they could be affected by the questions raised over the court’s legal status.

However, before the High Court could issue a ruling on the appeal, the JSC filed a case in Supreme Court requesting a decision to declare the magistrate court legitimate.

On November 8, 2012, the Supreme Court instructed the High Court to halt its hearings on the former President’s appeal.

The Supreme Court also ordered the Civil Court to send over all files and documents on a case submitted over a year ago by lawyer Ismail Visham, which challenged the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court issued a writ of mandamus ordering the lower court to suspend its hearings and took over the case.

Meanwhile, a week before the Supreme Court delivered its 4-3 judgment declaring the magistrate court legitimate, parliament’s Independent Institutions Committee voted not to recognise the legitimacy of the Hulhumale’ court.

The oversight committee, chaired by MP Nasheed, decided that there were no “legal and constitutional grounds” to support the court’s legal status.

However, in an unprecedented move, the Supreme Court issued an order (No. 2012/SC-SJ/05) invalidating the committee’s decision.

The Supreme Court declared that no institution should meddle with the business of the courts, claiming that it held parental authority over “constitutional and legal affairs” and would not allow such “interference” to take place.

“Any action or a decision taken by an institution of the state that may impact the outcome of a matter that is being heard in a court of law, and prior to a decision by the courts on that matter, shall be deemed invalid, and [the Supreme Court] hereby orders that these acts must not be carried out,” the order read.

Meanwhile, earlier this month, the High Court granted a second injunction or stay halting former President Nasheed’s trial at the Hulhumale’ Magistrate Court.

The trial was suspended pending a ruling by the High Court on the legitimacy of the three-magistrate bench appointed by the JSC to preside over Nasheed’s trial.

The injunction followed testimony by members of the JSC to the Independent Institutions Committee claiming that the three magistrates chosen by JSC were appointed arbitrarily.

Likes(0)Dislikes(0)

State seeks High Court ruling on President’s discretion to grant clemency in death sentences

The Maldivian state has sought a High Court ruling on the President’s discretion to commute death sentences to life imprisonment.

During a hearing on Monday in a case filed by five citizens seeking to annul laws granting the President discretionary powers of clemency,  the state attorney said the government would prefer the court itself provided a decision on the matter in accordance with Islamic Sharia.

The state attorney insisted that the decision be made by the court, despite the High Court Judges Bench emphasising that the state must provide an answer since the case concerned a constitutional matter.

The plaintiffs’ lawyer alleged that the state had previously been given a number of opportunities to be answerable to the case against them, and that it had used the excuse of conducting research as a bid to buy time, and waste the time of the court. He asked that the bench accept the state’s request and provide a verdict on the case at the earliest.

In the case’s last hearing held in November 2012, the High Court gave the state the last opportunity to be answerable to the charges against them.

Concluding today’s hearing, the bench announced that it will come to a verdict during the next hearing of the case.

The case, submitted in August 2012, seeks the annulment of Article 5(a.i) and Article 21 of the Clemency Act (2/2010).

Article 5(a.i) states that the punishment for the crime of murder cannot be pardoned, although clemency is allowed under restrictions stated in the Act.

Article 21 states that although it may have been stated otherwise in the Act, if the Supreme Court issues a death sentence, or if it backs a death sentence issued by the lower courts or the High Court, it is at the President’s discretion to grant clemency and transfer it to a life sentence with reference to the condition of the sentenced person, related legal norms, the interests of the state and the principles of humanity.

The case against the state asks for this annulment while referring to Article 10 of the Constitution of the Maldives, which states that no law can be enacted in the country which contradicts Islamic principles.

It then adds that according to Article 268, all legislation ratified in the country should be drafted within the principles detailed in the constitution, and that all laws and articles which do not align with this will be considered invalid.

The case, as reported previously by local media, further states that in Islamic Sharia, only the heir of the victim has the right to grant clemency or mercy to a murderer. It then states that a murderer can only be sentenced to death (ie gisas/retribution) if all heirs of the victim agree to it. It then goes on to say that neither the President nor any state institutions have the right to change a death sentence issued by a court of law.

It further states that should the President have it in his discretion to grant clemency in murder cases, this infringes upon the rights of the living heirs of murder victims.

It cited that the last time a death sentence was implemented in the country was in the year 1953, opining that although courts continued to sentence persons to death, “since then, the country has not had even one leader who has had the courage to implement this sentence.”

They case claims that the failure to implement the death penalty has “ruined this nation”, and that it infringes upon the citizens’ right to live, right to equitable treatment and right to travel among a number of other civil rights.

The case was submitted to court by five individuals; Abdul Maniu Hussain of Anbareege in Haa Alif Atoll Ihavandhoo, Hussain Shaheed of Baazeege in Seenu Atoll Hithadhoo, Abdulla Shiyaz of Naseema Manzil in Lhaviyani Atoll Naifaru, Abdulla Naseer of Boalhadhan’duge in Gaafu Dhaalu Atoll Gahdhoo and Hassan Waheed of Rankokaa in Haa Dhaalu Atoll Kurin’bi.

Government in support of death penalty implementation

In October 2012, the government announced its intention to introduce a bill to the People’s Majlis in order to guide and govern the implementation of the death penalty in the country.

President’s Office Spokesperson Masood Imad at the time referred to the October 2012 murder of religious scholar and MP Afrasheem Ali and stated, “We are having enormous pressure since these high profile murders. We have indications – the talk around the town – that there will be more murders.”

He added that the government had received a large number of calls for implementing the death penalty.

Similar to the ongoing case, in April 2012, MP Ahmed Mahloof from the government-aligned Progressive Party of the Maldives (PPM), proposed an amendment to the Clemency Act to ensure that the enforcement of the death penalty be mandatory in the event it was upheld by the Supreme Court.

In December 2012, the Attorney General’s Office completed drafting a bill outlining how the death sentence should be executed in the Maldives, with lethal injection being identified as the state’s preferred method of capital punishment.

However, earlier this year religious NGO Jamiyyathul Salaf has called on Attorney General (AG) Azima Shukoor to amend the government’s draft bill on the implementation of death penalty, urging that convicts be beheaded or shot instead of given lethal injection.

The bill is currently pending approval by parliament, and has given rise to dissenting opinions on the matter.

Likes(0)Dislikes(0)