Hulhumale’ Magistrate Court – Page 5 – Minivan News

Civil Court rejects case against Home Minister

The Civil Court has rejected a case accusing Home Minister Dr Mohamed Jameel Ahmed of influencing the ongoing trial against former President Mohamed Nasheed.

The case was filed by Maldivian Democratic Party (MDP) MP Mohamed Rasheed, however it was rejected by the Civil Court on the grounds that Rasheed had no connection with the case involving the former president at Hulhumale’ Magistrate Court, local media reported.

The case filed by Rasheed against Jameel stated that remarks made by the home minister on January 29 could influence the judges in their ruling against Nasheed, local media reported.

Jameel – who was formerly Justice Minister under Maumoon Abdul Gayoom’s administration – was reported in late January as stating that it was “crucial to conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”

He alleged the delay in Nasheed’s prosecution was due to “various reasons”, and would very likely have “adverse effects on the political and social fabric of the nation”.

“If things happen this way, people will start believing that it was due to the failure to address some issues in the Maldives’ judicial system, which need to be looked into. And in my opinion, the courts will have to take responsibility for this,” Jameel said in an interview with news website Haveeru.

The MDP’s case requested the court to rule that Jameel should not make comments that could influence any ongoing trials.

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Former President Nasheed fails to attend court hearing

Former President Mohamed Nasheed failed to attend his scheduled trial hearing at Hulhumale’ Magistrate Court today (February 10), an official from the Judiciary Media Unit has confirmed.

The former president, who is currently out of the country in India, was due to attend the second court hearing regarding the controversial detention of Chief Judge of the Criminal Court Judge Abdulla Mohamed in January 2012.

The Hulhumale’ Magistrate Court granted Nasheed permission to leave the country for India on February 5, however the former president is yet to return to the Maldives despite his permitted travel period expiring yesterday (February 9).

According to local media, a letter had been submitted to the Hulhumale’ Court on February 7 by Nasheed, requesting for his travel leave to be extended from 5:00pm today (February 10) until February 28.

However, the travel extension request was today denied by the bench of judges presiding over Nasheed’s case.

An official from the Judiciary Media Unit told Minivan News today that Nasheed’s hearing – scheduled for 4:00pm – had been cancelled after the former president failed to attend.

Asked as to what action the court will take regarding the matter, the official was unable to give a specific response, adding: “The courts will do something, but I do not know what that will be”.

According to the official, a new hearing for the trial is yet to be set by the court.

Maldivian Democratic Party (MDP) Spokesperson Hamid Abdul Ghafoor told Minivan News today that while the party had “no comment” regarding Nasheed’s lack of attendance at the hearing, the MDP maintains that Hulhumale’ Magistrate Court is “not a legitimate court”.

“The party maintains that [Mohamed Nasheed] should not go to that court, and we have raised the administration issues already,” he added.

Nasheed’s Spokesperson Mariya Didi was not responding to calls from Minivan News at time of press.

Supreme Court appeal

Earlier today, the legal team of former President Mohamed Nasheed appealed to the Supreme Court regarding the High Court’s ruling in favour of the legitimacy of Hulhumale’ Magistrate Court.

Nasheed had previously appealed to the High Court in order to contest the Hulhumale’-based court’s ruling in regard to his trial on three procedural issues raised during an initial hearing of his case in October 2012.

Despite the former president’s appeal, a three-member judges panel at the High Court ruled on February 4 that there were no “legal grounds” to declare Hulhumale’ Magistrate Court and its decisions illegitimate.

Following the High Court’s ruling, an official from the Judiciary Media Unit confirmed to Minivan News that Nasheed’s legal team have now appealed to the Supreme Court.

Local media reported that Nasheed’s legal team had tried to file the appeal at the Supreme Court on Thursday (February 7), but that this was refused due to insufficient documentation.

Former President’s legal team had argued that the Hulhumale’ Magistrate Court could not hold hearings on a nearby island, therefore ruling out Male’.

Furthermore, a summoning order issued to Nasheed by the court on September 26, 2012, was inconsistent with existing laws, according to his lawyers.

Finally, Nasheed’s representatives claimed the Hulhumale’ Magistrate Court was formed in contradiction to the Judicature Act.

In a statement following the High Court’s verdict throwing out these procedural points, Nasheed said the decision “clearly means I will not be allowed a fair trial.”

Former MDP Chairperson MP Mariya Didi noted that the High Court concluded the case after only two successive hearings, adding that it seemed the Hulhumale’ Court “had prepared summons before the High Court judgement was even delivered.”

Home Minister Dr Mohamed Jameel – formerly Justice Minister during President Maumoon Abdul Gayoom’s 30 year government – has meanwhile told local media that swift prosecution of Nasheed before the Presidential Election was necessary to protect the “political and social fabric of the Maldives”.

“Every single day that passes without a verdict will raise questions over the justice system of the Maldives in the minds of the people,” Jameel told newspaper Haveeru.

Background

The Prosecutor General (PG) pressed charges against the former President in the Hulhumale’ Magistrate Court on the grounds that holding the trial in Male’ at the Criminal Court represented a conflict of interest on behalf of Chief Judge Abdulla Mohamed, whom the case concerned.

The Judicial Services Commission (JSC) appointed the three-member panel of judges to oversee the trial of the former president.

The Commission’s members include two of Nasheed’s direct political opponents, including Speaker of Parliament Abdulla Shahid – Deputy of the government-aligned Dhivehi Rayithunge Party (DRP) – and Gasim Ibrahim, a resort tycoon, media owner, MP and leader of the Jumhoree Party (JP), also a member of the governing coalition.

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High Court to rule in appeal on Hulhumale’ court legitimacy

The High Court is expected to rule Monday (February 4) on a Maldivian Democratic Party (MDP) appeal against the Supreme Court’s decision to back the legitimacy of the Hulhumale’ Magistrate Court.

Former President Mohamed Nasheed, who is currently facing charges in the Hulhumale’ court over the detention of Criminal Court Chief Judge Abdulla Mohamed, today appealed against the legitimacy of the legal body alongside lawyers from the MDP.

Nasheed’s legal team have claimed that the Supreme Court ruling legitimising the Hulhumale’ court could be ignored by a lower legal body in the country, if oversights were made in the original verdict.

The High Court hearing follows attempts by the MDP to file a Civil Court case against serving Home Minister Dr Mohamed Jameel Ahmed over allegations he had sought to influence the judiciary against the former president.

Dr Jameel was himself arrested under the Nasheed administration last year after the President’s Office requested an investigation into so-called “slanderous” allegations he made that the government was working under the influence of “Jews and Christian priests” to weaken Islam in the Maldives.

Minivan News was awaiting a response from Jameel at time of press.

“Per incuriam”

According to MDP spokesperson and MP Hamid Abdul Ghafoor, Nasheed’s legal team today invoked the principal of “per incuriam”, whereby an order from a superior court could be ignored in cases where “oversights” where found in the legal body’s ruling.

“In this regard, there are many precedents where the High Court has ruled against the Supreme Court,” he claimed, without specifying examples.

Hamid contended that rather than arguing the appeal hearing on just a legal technicality, the principal of “per incuriam” was relevant to what he claimed were the questionable grounds by which the Hulhumale’-based court was founded.

“The existence of Hulhumale’ magistrate Court is illegal. Our lawyers have submitted proof such as letters by former President Maumoon Abdul Gayoom showing this,” he claimed.

Nasheed came under international criticism last year after detaining Criminal Court Chief Judge Abdulla Mohamed. The arrest followed his successful blocking of investigations into his alleged misconduct by the judicial watchdog and quashing of his own police summons.

The former government also accused the judge of political bias, obstructing police, stalling cases, having links with organised crime and “taking the entire criminal justice system in his fist” to protect key figures of the former dictatorship from human rights and corruption cases.

Nasheed’s government faced ongoing protests following the detention that led to his controversial resignation on February 7, 2012.

The MDP has maintained that the charges against Nasheed, which would potentially see him facing possible imprisonment or being banned from running for office in elections scheduled for later this year, were politically motivated.

Nasheed, who also spoke at the trial, observed that the chief presiding judge at the hearing had formerly served under Home Minister Dr Jameel during his tenure at the now defunct Ministry of Justice, during the autocratic rule of former President Gayoom. The MDP alleged that the judge, having previously reported to directly to Dr Jameel during his time as justice minister, had a conflict of interest.

Appeal aim

Hamid claimed that should the appeal be upheld by the High Court, the invalidation of the Hulhumale’ Magistrates Court would also call into question the nature of the charges against former President Nasheed.

He claimed additionally that the state was “on the back foot” in the case, with the Prosecutor General’s (PG’s) Office not contesting the issue today during the hearing.

Hamid added that Attorney General Azima Shukoor and a representative for the court watchdog, the Judicial Services Commission (JSC), had also declined to turn up for the hearing.

He was critical however of the chief judge providing the MDP just 20 minutes with which to present the opposition’s case against the legitimacy of the Hulhumale’ court.

The three presiding judges are expected to deliver a verdict on the appeal by tomorrow.

Action against home minister

Meanwhile, President of MDP’s Male’ City Branch Mohamed Rasheed Hussain ‘Bigey’ filed a case at the Civil Court Thursday (January 31) concerning Home Minister Dr Jameel’s comments regarding the trial of former President Mohamed Nasheed.

The case, which has been accepted by the court, is currently in the process of registration.

“We are submitting this case to the Civil Court requesting that they order current Minister of Home Affairs Mohamed Jameel Ahmed to stop making remarks to local media that will stand in the way of judges presiding over cases fairly and in a manner free of influence,” Hussain said.

Aishath Leesha, the lawyer representing the MDP in the case, claimed that the home minister’s comments concerning an ongoing case were outlawed not only under the Judicature Act and Judges Act, but by previous Supreme Court rulings and the Maldives constitution.

“Hence, we are asking the court to declare that neither Jameel nor anyone else can make comments of this nature,” Leesha said.

Dr Jameel was reported in local media as stating that it was “crucial to conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”

He alleged that delays to the trial were due to “various reasons”, and would very likely have “adverse effects on the political and social fabric of the nation”.

Expressing concern that it would be an “extremely worrisome matter” if people started speculating that the reason for the delay in prosecuting Nasheed was that the country’s judiciary was not performing to par, Jameel said, “Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary.”

http://minivannewsarchive.com/politics/mdp-accuses-home-minister-of-influencing-former-presidents-trial-52062

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“Technical problem” prevented former President Nasheed from leaving, Immigration Department claims

Former President Mohamed Nasheed was prevented from leaving the country yesterday (December 21) to visit his ill father in Bangkok, Thailand due to a “technical problem,” the Department of Immigration and Emigration has claimed.

Nasheed was told by immigration officials on Friday morning that his passport was held because of a court order by the Hulhumale’ Magistrate Court that had been sent to the department on December 18 imposing a travel ban on the former president.

The formerly ruling Maldivian Democratic Party (MDP) presidential candidate is currently on trial at the Hulhumale’ Magistrate Court over charges of illegally detaining Chief Judge of the Criminal Court Abdulla Mohamed in January this year.

However, on December 18, the Hulhumale’ Magistrate Court authorised the former President to travel overseas between December 19, 2012 and January 6, 2013. The letter granting permission to travel was signed by Magistrate Hussain Mazeed.

Following the incident on Friday morning, the Hulhumale’ Magistrate Court confirmed to local media that the Immigration Department was informed of the decision on December 18.

In a statement later in the day, the Immigration Department said the court order lifting the travel ban was received and entered into the system.

However, Nasheed was told his passport had been withheld due to a “technical problem with the system,” the Immigration Department claimed.

“The issue has now been identified and fixed a short while ago,” the statement read. The department did not elaborate on the nature of the “technical problem”.

Controller of Immigration Dr Mohamed Ali told Minivan News today that the system error “affected both arrivals and departures from 7:30am to about 2:00pm.”

He added that the incident involving the former President was “the only case” of a passport being held due to the disruption.

“The system at airport did not show the release, while the release was entered on Wednesday (December 18). It was a simple system dependent decision by the duty officer at that time. We have apologised to [Nasheed] and all who were affected and even have a letter sent to him assuring that he can leave during the specified period,” Dr Ali said.

However, the Immigration Controller told newspaper Haveeru on Friday that Nasheed’s passport was held due to a court order.

“He cannot leave until the court orders [the passport] to be released. When he wants to go somewhere, the court will instruct us to release it within a certain period,” Dr Mohamed Ali was quoted as saying.

Nasheed was reportedly due to leave for Bangkok on a private visit ahead of his father’s surgery.

Former President Nasheed’s office meanwhile issued a statement contending the move blocking the former President’s departure was in violation of the constitution.

The statement noted that article 128 of the constitution entitles former Presidents to “the highest honour, dignity, protection, financial privileges and other privileges entitled to a person who has served in the highest office of the land.”

Moreover, article 41 of the constitution guarantees “the freedom to enter, remain in and leave the Maldives” to every citizen.

“This office condemns in the harshest terms the act by the current government to deliberately obstruct President Nasheed from leaving the country for his father’s operation,” the press release stated.

It added that the Immigration Controller’s claims in the media that a travel ban had been imposed by a court order on December 18 was a “deliberate falsehood.”

The Hulhumale’ Magistrate Court informed Nasheed’s lawyers on Friday afternoon that the Immigration Department was sent the court order lifting the travel ban.

The statement called on the government to “respect the constitution and immediately cease these attempts to harass and hassle President Nasheed.”

The former President’s office also called on the Hulhumale’ Magistrate Court to take action against the Controller of Immigration for making false claims regarding the court.

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Former President Nasheed’s trial politically motivated: Bar Human Rights Committee

The trial of former President Mohamed Nasheed on charges of illegally detaining a judge appears to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential election, the Bar Human Rights Committee (BHRC) concluded in a report launched on Thursday (December 13).

The report was compiled by Stephen Cragg on behalf of the BHRC, the international human rights arm of the Bar of England and Wales, following a visit to the Maldives from November 3 to 6 to observe hearings of former President Nasheed’s trial.

“BHRC notes that Mr Nasheed’s lawyers have petitioned the prosecutor-general to review whether the prosecution of Mr Nasheed is in the public interest, and it seems to BHRC that this is an application worthy of very serious consideration,” the report stated.

“BHRC is concerned that a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”

According to a press release by the BHRC, the report was based on “an investigation into the circumstances surrounding the trial of ex-President Mohamed Nasheed.” The BHRC observer, Stephen Cragg, is a member of the bar and barrister at Doughty Street Chambers.

Former President Nasheed faces criminal charges for the military’s controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed on January 16 this year.

Home Minister Hassan Afeef sought to justify the arrest at the time on the grounds that the judge was a national security threat after he blocked investigation of his misconduct by the judicial watchdog and quashed a police summons for him.

The judge had “taken the entire criminal justice system in his fist,” Afeef said, accusing Abdulla Mohamed of obstructing high-profile corruption cases, releasing murder suspects, colluding with drug traffickers, and barring media from corruption trials.

Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef contended, and had arbitrarily suspended court officers.

In the conclusions of the BHRC report, the author observed that the detention of the judge was “not a simple case of abuse of power.”

“Rather, the underlying narrative of the situation is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed reform,” the report stated.

Referring to “the large number of international reports” that have found the Maldivian judiciary to be flawed, the BHRC noted that the Judicial Service Commission (JSC) “failed in its twin tasks of ensuring that the judiciary has the appropriate experience and qualifications, and in bringing to book the judges who fail to fully and fairly implement the rule of law.”

“Implicit in these criticisms is that Mr Nasheed cannot be guaranteed a fair trial,” the report concluded.

The BHRC also expressed concern with the “deterioration of human rights protection in the Maldives since the transfer of power in February 2012” as reported by Amnesty International and the International Federation of Human Rights (FIDH).

“Again, a failure to comply with human rights standards by the Maldivian authorities is a grave threat to the democracy so recently achieved,” the report stated.

“How the Maldives deals with this prosecution and trial (if it goes ahead) may well decide the course of its government for years to come.”

Back in September, the government criticised Amnesty International’s report, “The Other side of Paradise: A Human Rights Crisis in the Maldives”, as being “one sided”.

The BHRC is a UK-based independent body “concerned with protecting the rights of advocates, judges and human rights defenders around the world.”

JSC and failure of oversight

The BHRC report also noted that article 285 of the constitution mandated the JSC to determine whether or not the judges on the bench possessed “the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, [and] high moral character.”

“However, the JSC failed to bring in any standards in the two years allowed and in August 2010 almost all judges, good and bad, were re-instated in post at that point amidst much controversy,” the report observed.

It added that the International Committee of Jurists (ICJ) expressed concern with the JSC’s failure to “fulfil its constitutional mandate of proper vetting and reappointment of judges.”

“The JSC (made up of politicians, lawyers and judges) has also been criticised as ineffective in its other role of overseeing complaints about judges. Complaints about the worst judges built up and were not investigated. A large number of complaints were made about the head of the criminal court in Malé, Judge Abdulla Mohamed,” the BHRC report explained.

“In an open letter to parliament in March 2011, former President Nasheed’s member on the JSC and outspoken whistle-blower, Aishath Velezinee, claimed that the politically-manipulated JSC was protecting Judge Abdulla.

She claimed this protection was provided despite the existence of “reasonable proof to show that Chief Judge of the Criminal Court Abdulla Mohamed was systematically committing the atrocity of setting free dangerous criminals and declaring them innocent with complete disregard to the evidence [presented at court].”

Despite Judge Abdulla having been sentenced for a criminal offence, Velezinee wrote that Speaker Abdulla Shahid pushed for his reappointment and later “bequeathed the Criminal Court to Abdulla Mohamed until 2026″ under the Judges Act, which was passed hastily during the constitutional crisis period in July-August 2010.

Velezinee meanwhile told the author of the BHRC report that it was “the State’s duty to remove [Judge Abdulla] from the judiciary”.

“She has written a remarkable memoir of her time on the JSC, describing the machinations and tribulations of the Committee, and its failure to establish ethical or moral standards for judges,” the report noted.

Meanwhile, on January 16, 2012, “frustrated by an inability to remove allegedly bad judges, President Nasheed (or one of his ministers, it is still not entirely clear) ordered the detention of Judge Abdulla,” the BHRC report continued.

“He was taken to an island and kept there for almost three weeks, despite the protests of lawyers and judges. It does not seem that he was badly treated, and the government emphasised the lack of other effective powers to justify its actions.”

It added that the Supreme Court demanded the immediate release of the judge “as he was arrested not in conformity with the laws and regulations, and the acts of MNDF [Maldives National Defence Force] was outside its mandatory power.”

The trial

Former President Nasheed’s trial is set to resume after the Supreme Court on December 5 decided in a 4-3 ruling that the Hulhumale’ Magistrate Court hearing the case was legitimate.

The BHRC report noted that Nasheed was charged under article 81 of the penal code, which states: “It shall be an offence for any public servant to use the authority of his office to intentionally arrest or detain any innocent person in a manner contrary to law. A person guilty of this offence shall be punished with exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.”

The former President’s legal team informed the author that “a range of defences will be advanced” in his trial.

“For example, is the President a public servant to whom the Article applies? Does the Article relate only to the person who, in fact, takes a person into custody or directly orders an arrest? What effect does the term ‘innocent’ have in the Article?” the report explained.

“The team is to request that the Prosecutor General reconsiders whether the prosecution against Mr Nasheed should proceed, arguing that it is not in the public interest that it should do so. It was explained that if Mr Nasheed is sentenced to more than a year in custody then (even if he is immediately pardoned) he will be excluded from running in the 2013 elections.”

The author of the report also spoke to a number of lawyers, politicians and the Prosecutor General during their visit, and “almost all criticised the failure of the JSC to bring about reform of the judiciary in the way expected by the new constitution.”

“Opinion was split between those who thought there was no option but to prosecute Nasheed, and those who wanted the wider context to be taken into account by the prosecutor,” the report noted.

“There was a strong feeling amongst some that the politicians of the old regime had escaped prosecution for much worse abuses of power. The foreign government representatives I spoke to clearly see Nasheed as a force for good in the region and desperately want a solution to the current proceedings which will allow him to stand in the election next year.”

Independent MP Mohamed ‘Kutti’ Nasheed, chair of parliament’s Independent Institutions Oversight Committee, meanwhile explained that the absence of powers to replace members of the JSC “severely restricted” the parliamentary committee from ensuring that the JSC was functioning effectively.

Nasheed also criticised the Supreme Court for overturning Acts of Parliament that “purported to legislate for the justice system” as part of its stance that “anything to do with the administration of justice was a matter for the [Supreme] Court.”

Former MP Ibrahim Ismail ‘Ibra’, chair of the constitution drafting committee of the Special Majlis, meanwhile contended that the President “had no choice but to arrest Judge Abdulla” as the only option to “remove a rogue judge from the criminal justice system.”

Ibra explained that the “backdrop to President Nasheed taking or authorising the action he did against the judge” was the JSC’s failure to investigate serious complaints, some dating back to 2005.

“However, when the JSC did adjudicate against Judge Abdulla in one case, the Judge went to the civil court and obtained an injunction against the JSC to stop them taking action against the judge. Essentially the system had ground to a halt,” the BHRC report stated.

Prosecutor General Ahmed Muizz however insisted that “it was right that Mr Nasheed should face trial and that even before Mr Nasheed had lost power it was considered the right thing to do.”

“I asked him whether there was a code of practice which governed prosecution decisions. He said that there was but that it was not in the public domain. He said that it was possible for prosecution decisions to take into account the public interest, but was a little vague as to how this was actually done,” the report stated.

“He mentioned that when Mr Nasheed had been president there had been a decision in the public interest not to pursue him in relation to fairly minor electoral offences. He did say that it was possible for the prosecutors to reconsider, following charge, whether a prosecution should continue.”

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Supreme Court declares Hulhumale Magistrate Court legitimate

The Supreme Court on Wednesday declared that the controversial Hulhumale Magistrate Court was legitimate and could operate as a court of law.

The decision has ramifications for the trial of former President Mohamed Nasheed, who is facing charges of illegally detaining Chief Criminal Court Judge Abdulla Mohamed during his final days in office. Nasheed and his party disputed the legitimacy of the Hulhumale Magistrate Court, which was formed by the Judicial Services Commission (JSC) and which appointed the panel of judges hearing Nasheed’s case. The JSC includes two of Nasheed’s direct political opponents.

Out of the seven member Supreme Court bench, four judges ruled in favor of the court’s legitimacy while three judges including the Chief Justice had opposed it. The other two judges were Judge Abdulla Areef and Judge Mu’uthazim Adnan.

The four judges who ruled in favor of the court were Judge Abdulla Saeed, Judge Ali Hameed Abdulla, Judge, Judicial Service Commission (JSC) President Adam Mohamed Abdulla and Judge Dr Ahmed Abdulla Didi.

The Supreme Court majority ruling stated that despite Hulhumale being mentioned as part of capital Male’ City in the Decentralisation Act, Hulhumale was an “island” with a large population and therefore, having no division of a superior court on that island and if not for the presence of Hulhumale Magistrate Court, its inhabitants would have to travel to another island in order to get justice. Therefore it declared Hulhumale Magistrate Court as legitimate.

Supreme Court also declared that Hulhumale’ is a separate island in Male’ division, even though the law recognises Hulhumale as a part of Male’ City.

The three dissenting judges, having taken different legal arguments, mutually agreed that Hulhumale’ Magistrate Court could not be legally established.

All three judges had unanimously agreed that courts should be established through legislation and that the Hulhumale Magistrate Court was not established in accordance with the Judicature Act.

The case was filed by the Judicial Service Commission (JSC) and the respondent of the case was decided as lawyer Ismail Wisham.

Former President Mohamed Nasheed’s legal team also sought to intervene in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is being looked by Hulhumale’ Magistrate Court.

Disregard to principle of bias

During the first hearings, the former Attorney General Husnu al Suood, who was representing the respondent raised procedural points whereby he argued that Supreme Court Judge Adam Mohamed Abdulla could not sit on the bench since he was also the President of the JSC, which therefore amounted to “presumption of bias”.

However, the Supreme Court rejected the procedural points.

Following today’s decision, Suood in a tweet described the decision as a “case of actual bias” with regard to his previous arguments in court.

“A case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, casting vote by JSC [president]” – Husnu Al Suood tweeted

Meanwhile, MDP MP and Lawyer Imthiyaz ‘Inthi’ Fahmy criticised the Supreme Court decision and echoed similar sentiments.

“The suspect sitting on [Supreme Court] bench today killed and buried in Maldives the very basis for the rule against bias! That’s solid murder!” he tweeted.

Arguments

During the hearing, the respondents argued that according to the existing law, there were no legal basis to support the legal existence of Hulhumale’ Magistrate Court, which had been formed in contradiction to the constitution and the Judicature Act article 53.

Judicature Act Article 53(e) states that if four divisions of the four superior courts are established in one island, then “the magistrate court of that island will be abolished. And if a division from among the four courts is established in an island, matters that fall within the jurisdiction of the relevant court shall be carried out by the relevant division and not by the magistrate court.”

The respondent’s lawyer claimed that with reference to the constitution and the Decentralisation Act, it was clear that Hulhumale’ and Villimale are now considered as a part of Male’ even though they are geographically two islands, therefore a magistrate court cannot be set up in any of the islands which under the law are now considered wards.

The intervening Nasheed’s lawyers also echoed the remarks on the case. Nasheed’s lawyers requested a period of three days to research the documents – which they claimed to have only received just a few minutes before the hearing – but were denied the opportunity.

The JSC lawyers who filed the case argued that Hulhumale’ and Villimale were only considered as a part of Male’ for administrative purposes and that this argument did not have any legal basis. Therefore, they stated, Hulhumale’ should be “judicially” considered a separate island.

The lawyers also claimed that the court was set up with the intention of providing easy access to justice for the people of Hulhumale. They also claimed that according to the Judicature Act article 66, each island must have a magistrate court and that prior to the passing of the Act, the court had been functioning as an island court.

The artice 66 states – “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where four divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”

Responding to the claims of the JSC, the respondents stated that based on the documents presented to the court, the Hulhumale court was formed to function as a section of Civil Court and Family Court prior to the passing of the Judicature Act.

The added that only island courts were to be declared as magistrate courts according to the judicature act and since Hulhumale Court was a section of the superior courts, it cannot be declared as a magistrate court according to the Judicature Act.

No one should meddle with the courts: Supreme Court

The Supreme Court decision on the matter is followed by its previous order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.

In the order, the Supreme Court ordered not to meddle with the business of the courts by other institutions of the state stating that the country’s constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

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Supreme Court overrules Parliament’s decision to invalidate Hulhumale Magistrate Court

The Supreme Court has issued an order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.

Former President Mohamed Nasheed is currently facing charges in the Hulhumale Court for the detention of Chief Judge Abdulla Mohamed during the final days of his administration.

The oversight committee this week declared the court illegitimate, claiming it lacked “constitutional and legal grounds” to support its legitimacy.

In an order, (No. 2012/SC-SJ/05) issued on November 28, 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.

Though the order did not specifically mention the decision by the parliamentary oversight committee, it was issued shortly after the committee’s decision regarding the Hulhumale’ court.

Last Tuesday, the Independent Institutions Oversight Committee,following an issue presented by three sitting MPs, declared there were no “legal grounds” to accept the setting up and functioning of Hulhumale’ Magistrate Court based on the powers vested to the Judicial Service Commission (JSC) under article 159 of the constitution and article 21 of the Judicial Service Commission Act, and based on the articles 53 and 63 of Judicature Act.

The members of the committee claimed there was a lack of any legal reasoning to recommence the works of the concerned court after its work had been suspended for five months after the Judicature Act came to force.

Article 63 of the Judicature Act states: “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where 4 divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”

However, the Independent Institutions Oversight Committee in its explanation of the decision stated that the exception of Male’ in the stated article included Hulhumale’, which for administrative purposes is considered a ward of the capital. The committee argued Hulhumale’ could not be deemed as a separate island to establish a magistrate court.

No one should meddle with the courts: Supreme Court

In quashing the parliamentary committee’s decision, the Supreme Court stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

Not meddling with business of courts – Deputy Chair of Independent Institutions Oversight Committee

Speaking to Minivan News, Deputy Chair of Independent Institutions Oversight Committee MP Ahmed Sameer said the committee was not meddling with the business of the courts, but addressing a constitutional violation carried out by the JSC in establishing an illegitimate court.

Sameer – who is also the deputy leader of Maldivian Democratic Party (MDP) parliamentary group – stated that it was a responsibility of the parliament to hold independent institutions and other bodies of the state accountable, and that his committee was mandated with the scrutiny of actions of independent institutions.

“Initially, when we summoned the JSC to the committee, they refused to talk to us or provide any information to the committee. However, from the documents that the committee received later, we found out that the Hulhumale’ Magistrate Court was formed by the JSC which is a violation of the constitution and the laws,” he said.

Sameer argued that the constitution explicitly states that courts can only be formed by legislation and not “through a vote in the JSC”.

“The committee’s decision was made based on the findings of the inquiry. We have all the documents including the agendas of the meeting and the meeting minutes. It is clear that the JSC had formed and an act that is beyond the powers vested to the commission in the constitution and the JSC Act,” he added.

Sameer claimed that the decision by the committee was binding and no authority can overrule the decision.

“With the committee’s decision, we do not plan to give the budget to the court and works are underway to in drafting an amendment that would specifically state the courts that would be formed under the law,” he said.

Sameer added that the parliament will not tolerate any decision that undermines its constitutional powers and responsibilities.

Arrest of Judge Abdulla

The issue concerning Hulhumale Magistrate Court’s legitimacy came to limelight following the Prosecutor General (PG) filing criminal charges against former President Mohamed Nasheed for the detention of Chief Judge of Criminal Court Abdulla Mohamed in January 2012.

Criminal Court Chief Judge Abdulla Mohamed was arrested by the Maldives National Defence Force (MNDF) on the evening of Monday, January 16, in compliance with a police request.

The judge’s whereabouts were not revealed until January 18, and the MNDF acknowledged receipt but did not reply to Supreme Court orders to release the judge.

Then Home Minister Hassan Afeef subsequently accused the judge 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.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

Nasheed’s government subsequently requested assistance from the international community to reform the judiciary. Observing that judicial reform “really should come from the JSC”, Foreign Minister at the time, Ahmed Naseemm said that the JSC’s shortcomings “are now an issue of national security.”

The judicial crisis triggered 22 days of continuous protests led by senior opposition figures and those loyal to former President Maumoon Abdul Gayyoom, which eventually led to the controversial toppling of Nasheed’s administration on February 7.

The PG’s Office filed charges based on the investigations by Human Rights Commission of Maldives (HRCM) on the arrest, which concluded that Nasheed was the “highest authority liable” for the military-led detention of Criminal Court Chief Judge Abdulla Mohamed.

Along with Nasheed, the report concluded that the former president’s Defence Minister, Tholhath Ibrahim Kaleyfaanu, was a second key figure responsible with others including Chief of Defence Force Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad.

Charges were also filed against all of those which the HRCM investigation report identified as responsible for the arrest in Hulhumale’ Magistrate Court.

Hulhumale Magistrate Court and legitimacy

During the first hearing of the trial, ex-president Nasheed’s lawyers took procedural points challenging the legitimacy of the court, but were rejected without justification. Nasheed’s legal team’s appeal challenging the legitimacy was initially rejected by the High Court claiming that it cannot look into a matter that was already being heard in Supreme Court.

However, the High Court later granted Nasheed an injunction temporarily suspending the trial of the former president at the contested Hulhumale’ Magistrate Court. The injunction is pending a ruling on procedural points raised by the former President’s legal team.

Following the injunction, Hulhumale’ Magistrate Court has announced that it had suspended all ongoing cases.

In its announcement, the Hulhumale’ Magistrate Court said it has suspended proceedings on cases involving marriage, divorce, guardianship, family matters, property lawsuits, civil cases, criminal cases involving extension of detention periods as well as other matters that could be affected by the questions raised over its legal status.

Following the High Court’s injunction granted to Nasheed, the JSC filed a case in Supreme Court asking it to look into the legitimacy of the court. The Supreme Court then instructed the High Court to halt its hearings on the appeal.

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

The Supreme Court on November 19, held the first hearing of the case concerning the legitimacy of Hulhumale’ Magistrate Court and Ismail Visham was decided as the respondent of the case.

Nasheed’s legal team also intervened in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is heard by Hulhumale’ Magistrate Court.

Meanwhile, several prominent figures have raised doubts over the legitimacy of Hulhumale Magistrate Court.

Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, in an article in his personal blog stated – “The [Hulhumale’ court] was created by the Judicial Services Commission (JSC) without authority derived from law. Therefore the validity of any order or judgement issued by this court is questionable, and the constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds.”

Ismail further writes that no court has the power, under any law, to issue a travel ban on a person without ever summoning them to court.

He also stated that there was ample to room to believe that the courts were acting with a bias against Nasheed, owing to a number of other politicians and business tycoons who were repeatedly defying court orders and summons.

Prominent lawyer and Independent MP Mohamed ‘Kutti’ Nasheed – who is also the chair of Parliament’s Independent Oversight Committee – in his personal blog also echoed similar remarks explaining that a magistrate court could not legally be established at Hulhumale’.

However following the Supreme Court’s order, Nasheed told Minivan News said that he “wished to give a considered view soon” but refused to reveal a specific date by which he would respond.

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Supreme Court holds first hearing on legitimacy of Hulhumale’ Magistrate Court

The Supreme Court on Sunday held the first hearing of the case concerning the legitimacy of Hulhumale’ Magistrate Court.

The case was filed by the Judicial Service Commission (JSC) and is being heard by the entire seven member bench of the Supreme Court. Respondent in the case was lawyer Ismail Wisham.

At the beginning of the trial, the former Attorney General Husnu al Suood, who was representing the respondent raised procedural points whereby he argued that Supreme Court Judge Adam Mohamed Abdulla could not sit in the bench since he was also the President of the JSC, which therefore amounted to “presumption of bias”.

However, the Supreme Court rejected the procedural points.

“We understand no reasons were given by the Supreme Court as to the why it decided to not hear the case submitted by the MDP,” the party said in a subsequent press statement. “We believe this goes against the principles of Natural Justice. As a party which will be affected by the decision of the Supreme Court, we believe the MDP has locus standi and as such has the right to be heard.”

Speaking on during case, the respondents argued that according to the existing law, there were no legal basis to support the legal existence of Hulhumale’ Magistrate Court, which had been formed in contradiction to the constitution and the Judicature Act article 53.

The intervening Nasheed’s lawyers also echoed similar remarks on the case. Nasheed’s lawyers requested a period of three days to research the documents – which they claimed to have only received just a few minutes before the hearing – but were denied the opportunity.

Supreme Court, adjourning today’s sessions did not mention of the next date the hearings would be scheduled.

The case concerning the legitimacy of Hulhumale Magistrate Court was filed by the JSC in earlier this month, asking the Supreme Court to decide on the matter.

Meanwhile, Nasheed’s Maldivian Democratic Party (MDP) have repeatedly challenged the legitimacy of the Hulhumale’ Magistrate Court.

Member of Nasheed’s legal team, lawyer Hisaan Hussain during a press conference held earlier this month, stated that they felt it would be unjust for the Hulhumale’ Magistrate Court to be presiding over any case after Nasheed’s case was temporarily halted over allegations of the court being unlawfully established.

The Hulhumale’ Magistrate Court held the first hearing of Nasheed’s case on October 9. The second hearing had been scheduled for November 4, which was cancelled following the injunction granted Sunday morning by the High Court.

Nasheed’s legal team has previously raised concerns about the legality of the Hulhumale’ court, citing Article 141 (a) of the Constitution and Articles 53 (b) and 62 of the Maldives Judicature Act.

Following the hearing, the MDP in its statement argued that the head of the JSC sitting on the bench during a trial concerning the JSC was against natural justice, and grounds for taking the case to the International Court of Justice.

“That no man shall be his own judge and jury is a fundamental principle of Natural Justice. The Supreme Court decides cases on simple majority and the president of a body that is the appellant and as such a party to the litigation and in which one of the issues is the legality of its own acts, should be disqualified from sitting as a judge in this case,” the party said.

“We are thinking of instructing lawyers to take up this case in the International Court of Justice (ICJ). After all once such basic principles of justice are ignored in our highest court of appeal, it paves the way for appeal to the ICJ.”

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Nasheed requests intervention in Hulhumale Magistrate Court legitimacy case

Former President Mohamed Nasheed has requested the Supreme Court allow him to intervene in the case over the legitimacy of the Hulhumale Magistrate Court.

Nasheed is to face charges in the Hulhumale Court over the unconstitutional arrest and detention of Chief Criminal Judge Abdulla Mohamed.

Procedural points regarding the legitimacy of the Hulhumale Court had been raised by former president Mohamed Nasheed’s legal team, the claims over the courts legitimacy were however dismissed by the Hulhumale Magistrate Court.

The Supreme Court issued an order over the High Court to cease its cases regarding the legitimacy issue of the Hulhumale Magistrate Court, until a decision had been reached.

The Supreme Court has confirmed the request made by Nasheed to intervene in the Hulhumale Court legitimacy case, however it is yet to respond to the request, court said.

The first hearing of the case is scheduled for 2:00pm today at the Supreme Court.

The case is being tried at Supreme Court upon request from the Judicial Services Commission to take over the case from the lower court.

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