Two judges in ex-president’s terrorism trial appointed to high court

Two criminal court judges who sentenced ex-president Mohamed Nasheed to 13 years in jail in a widely criticised trial have been appointed to the High Court today.

Judges Abdulla Didi and Sujau Usman took the oath of office at a surprise ceremony at the Supreme Court this morning.

Two seats on the nine-member bench have been vacant since the high court’s chief judge was demoted to the juvenile court in August, and another judge retired in February this year.

The appointment of new judges was stalled when the high court in October last year said the evaluation criteria was flawed.

But the Supreme Court on May 28 overturned the ruling, paving the way for Didi and Usman’s appointment.

The third judge in Nasheed’s terrorism trial was Judge Abdul Bari Yoosuf. He was awarded a discounted flat in a newly built luxury apartment complex in Malé.

The former chief judge Ahmed Shareef was suspended in 2013, shortly after the high court suspended court proceedings against Nasheed on charges of arbitrarily detaining a judge during his tenure. The high court was reviewing the composition of the bench overseeing the trial.

The Prosecutor General’s Office in February withdrew the lesser charges of arbitrary detention and filed new terrorism charges against Nasheed at the criminal court.

Evaluation criteria

The high court, in an October 2014 ruling, ruled that the criteria on evaluating a candidate’s educational qualification and experience was flawed and ordered the Judicial Services Commission to amend the criteria.

The 100-point mark sheet awarded 35 points for education, 30 points for experience, 10 points for ethical conduct and 25 points for an interview.

All candidates were to be put to a secret vote in the order of the candidates who received the highest points. The first candidates who received a majority in the vote would be appointed.

In evaluating the educational qualifications, a candidate with a degree in Islamic Shariah or a degree in common law would receive 20 points. But a candidate with a combined degree in Islamic Shariah and common law would receive 25 points.

Candidates with a masters or a doctoral degree would receive an additional five points each.

The criteria appeared to grade candidates on the title of their degrees, the high court said. For example, an individual who had a degree in common law may have done the same number of modules on Islamic Shariah as a candidate who had a combined degree in Islamic Shariah and common law.

The high court noted an individual who had done a degree in common law or Islamic Shariah, and held a masters, would receive 25 points, the same as an individual who had just done a degree in Islamic Shariah and common law.

The evaluation criteria for qualification awarded 30 points for ten years of experience as a judge, meaning it did not differentiate between candidates who had served as a judge for ten years or 20 years.

The appellate court said judges must be awarded points proportionate to the number of years they had served as judges.

The high court also ruled that the JSC cannot hold a secret vote to select candidates arguing the procedure was not transparent.

The Supreme Court, however, dismissed the high court’s ruling

Flawed trial

Foreign governments and international bodies have expressed concern over Nasheed’s 19-day trial, noting he was not given adequate time to prepare defense, barred from calling defense witnesses, and at times, denied legal representation.

The UN special rapporteur on independence of judges and lawyers, Gabriela Knaul said: “The speed of the proceedings combined with the lack of fairness in the procedures lead me to believe the outcome of the trial may have been pre-determined.”

Amnesty International said Nasheed’s sentencing “after a deeply flawed and politically motivated trial is a travesty of justice.”

The three judges who oversaw Nasheed’s trial also sentenced ex-defence minister Mohamed Nazim to 11 years in jail in a weapons smuggling charge.

The retired colonel said the weapons were planted at his home by rogue police officers on the orders of Tourism Minister Ahmed Adeeb.

Adeeb has denied the allegations.

Despite growing calls for Nasheed and Nazim’s release, President Abdulla Yameen said he has no constitutional authority to release the pair.

Nazim’s appeal at the high court is scheduled to begin on June 21.

Nasheed was unable to file an appeal after the criminal court delayed releasing required case documents within the shortened ten-day appeal period.

The government insists Nasheed can still file an appeal, but his lawyers say the law is silent on late appeals.

They argue that the Supreme Court in January has removed the high court’s discretionary powers to accept late appeals in the ruling that had shortened the 90-day appeal period to ten days.

Photo by Raajje TV

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MP Mahloof released after winning protest ban appeal

Independent MP Ahmed Mahloof was released from police custody today, after the high court overturned an ‘unconstitutional’ 15-day detention order and protest ban.

Mahloof was arrested from an opposition protest on March 26 for crossing a police barricade, but since then the criminal court repeatedly re-detained him when he refused to accept a conditional release that would require him to stay away from protests for 30 days.

“The High Court said Mahloof can only be held in custody if there is reason to believe he may flee or fail to attend court hearings. Judges said attending protests is not a reason for detention,” lawyers said.

Mahloof, a close associate of former President Maumoon Abdul Gayoom, was expelled from the ruling Progressive Party of Maldives (PPM) in February after he publicly criticised President Abdulla Yameen and the government.

He is now part of the Alliance against Brutality, an anti-government coalition, which has been protesting daily over the imprisonment of rival politicians including former president Mohamed Nasheed.

Speaking to the press today, Mahloof apologised for campaigning to bring president Yameen to power.

“I would like to apologise to the people of Maldives for helping such a brutal ruler assume power,” he said.

Human rights group Madivian Democracy Network said the criminal court had released at least 50 protesters on the condition they do not participate in further protests for 30-60 days.

Former president of the main opposition Maldivian Democratic Party (MDP) Dr Ibrahim Didi was arrested and held for 15 days last month when he was seen at an opposition protest after having agreed to the criminal court’s conditional release.

Dr Didi was released yesterday.

Earlier in March, MDP MP Fayyaz Ismail was held for 15 days when he too refused the criminal court’s conditional release.

MDP MP Eva Abdulla today called on opposition supporters to disobey unlawful court rulings, and urged the watchdog judicial services commission (JSC) to punish “unqualified judges.”

“What we have here are judges who do not know democracy dispensing unconstitutional sentences. But the checks and balances provided in our constitution is simply not working. The JSC refuses to investigate the judges, and the parliament controlled by the government refuses to hold the JSC accountable. Ultimately, the people are denied any form of justice,” she said.

Last week, the police denied family visits to Mahloof after they discovered “illegal” areca nuts in his pocket.

Mahloof today accused the police of discrimination, saying his lawyers were only allowed to see him before 6pm, while others could see their clients until 11pm.

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JSC appoints judges to Criminal Court and the Civil Court

The Judicial Services Commission (JSC) has appointed judges to both the Criminal Court and the Civil Court.

According to a statement on the commission’s website, the JSC decided to appoint one judge to the Criminal Court and four judges to the Civil Court in a meeting held last night (February 16).

Ahmed Rasheed of Hulhumalé 14-06 was appointed to the Criminal Court while Hassan Faheem Ibrahim from Haa Dhaalu Maukunudhoo, Ali Abdulla (Galolhu ward, Malé), Abdula Naseer Shafeeq (Lhavyani Kurendhoo), and Mohamed Haleem (Noonu Velidhoo) were appointed to the Civil Court.

An announcement was made for the application of interested candidates to the vacant positions on the benches of High Court, Criminal Court, and the Civil Court on Feburary 1, 2015.

The commission is yet to decide on the appointment of a judge to the High Court bench after the resignation of Judge Yoosuf Hussain – reportedly for health reasons – in early February.

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Civil Court rejects Nasheed stay order on Hulhumalé Court bench changes

The Civil Court has decided “there are no grounds” to grant a stay order asking the Judicial Services Commission (JSC) to halt the process of reappointment of the Hulhumalé Magistrate Court.

The order was requested by former President and opposition Maldivian Democratic Party (MDP) leader Mohamed Nasheed, who is challenging the assembly of the bench tasked with trying him for the detention of judge Abdulla Mohamed while in office.

In the hearing held yesterday (February 15) at 4pm, the presiding judge stated that the stay order cannot be granted as the court has not found that the JSC is bringing changes to the Hulhumalé Court bench.

Meanwhile the Bar Human Rights Committee of England and Wales (BHRC) has expressed concern over the “sudden resumption” of Nasheed’s trial, noting that the committee is closely monitoring the developments.

The BHRC said it had closely followed the case for almost two years. Previous observation of the case led the committee to describe the Hulhumalé court bench as “cherrypicked to convict”, prompting calls for “fundamental reform of the judiciary and its administration in the Maldives”.

In answering Nasheed’s stay order request, the JSC has previously denied that it is bringing any changes to the court, also claiming that it does not currently exist as the two out of three of the magistrates first appointed have now been promoted to superior courts.

Saturday’s trial saw the JSC raise a procedural issue, stating that while the commission has the authority and power to allocate and transfer judges, the Civil Court does not have the jurisdiction to deliberate on the legality of the Hulhumalé Magistrate Court bench as the bench was appointed on the Supreme Court’s advice.

The JSC lawyers also contended that the decision was not made by the Judicial Council as claimed by Nasheed’s lawyers, as the responsibilities and authority of the council have been taken over the Supreme Court.

Procedural issues

Nasheed’s lawyers asked whether the JSC is claiming that the Civil Court cannot deliberate on the matter because the commission interprets the Supreme Court’s advice on appointing the bench as a court ruling or because the JSC does not believe Civil Court has jurisdiction on the matter.

The JSC lawyers responded by stating that the “procedural issue is based on Supreme Court’s decision”.

In Nasheed’s challenge at the High Court regarding the legality of the Hulhumalé Magistrate Court bench, the JSC raised a similar jurisdictional issue, with the High Court deciding that it did not have jurisdiction to look into the matter, saying it could only deliberate on decisions taken by lower courts.

In reply, Hisaan Hussain from Nasheed’s legal team explained that Article 43 (C) of the Constitution afforded every citizen the right to appeal against any administrative decision and that “therefore we are appealing JSC’s administrative decision to convene the magistrates panel”.

Subsequently, the JSC clarified that the procedural issue was based not on jurisdictional grounds but because the commission believes that the Supreme Court’s advice on appointing the Hulhumale’ Magistrate Court bench is the court’s ruling.

At that point, the presiding judge stated that the Supreme Court had issued a circular that “changes the composition of the Civil Court by 12am tonight (by 15th February)”, explaining that “I cannot assure you that I will be sitting on this appeal after the said changes; therefore I cannot give out court summons for the next hearing.

Nasheed’s legal team also requested more time to discuss the case with the legal team and lawyers based outside Maldives.

The controversial court was formed specifically to oversee Nasheed’s trial for the January 2012 detention of Criminal Court Judge Abdulla Mohamed. Legal challenges to the court have seen the case stalled since April 2013.

Nasheed’s lawyers have previously challenged – unsuccessfully – the establishment of a magistrates court in the Malé suburb, arguing that Hulhumalé is considered to be part of Malé City under the Decentralisation Act and therefore does not require a separate court.

United Nations Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul has also noted that the “appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws”.



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Civil Court concludes first hearing of Hulhumalé Court challenge

Former President and Maldivian Democratic Party (MDP) leader Mohamed Nasheed’s case against the legality of the process in which the bench of the Hulhumalé Magistrate Court was heard by the Civil Court today.

Nasheed submitted the case to the lower court after the High Court decided on Monday (February 9) that it could not deliberate on the legality of the bench, citing jurisdictional grounds.

The High Court’s decision read that, under the regulation, the court can deliberate on decisions of the lower courts, but not on their composition.

According to Nasheed’s legal team member Ahmed Abdulla who spoke to the press outside the court, the trial today heard the case challenging the legality of the Hulhumalé Magistrate Court bench and also a stay order requested by Nasheed.

“We have received information the Judicial Service Commission plans to bring changes to the bench, we requested the court to order a halt to that”, Abdulla said.

He added that the JSC’s legal team requested more time to respond to the case regarding the legality of the bench but that it had responded to the stay order request.

“Firstly they stated that the bench is not in existence and then they said that we have brought no changes to the bench. Therefore what they are basically saying is that bench not being in existence is not a change. We were unable to comprehend what they were saying”.

Abdulla told reporters that in response to this, Nasheed’s legal team stated that the reason Nasheed had lodged cases in court against the JSC is because the commission insists it has powers to assemble court benches.

Nasheed’s legal team member Hisan Hussain stated that the reason the JSC is saying the bench does not exist is because magistrates who were initially appointed to the bench have now been promoted to superior courts.

“We must always assume that the JSC will assemble a bench, possibly even tomorrow and proceed with the case as long as the commission insists it has authority to do so,” she continued.

The judge will decide and rule on the stay order request in the next hearing to be held Saturday (February 14) .

While the trial continued supporters of Nasheed and the MDP gathered outside the Civil Court and expressed their discontent over the government’s “persecution and failures”.

Tensions between Special Operations police officers and those gathered grew as police started clearing the crowd from the main entrance of the civil court around 5pm.

Some pushing and shoving was observed along with heated exchanges of words between protesters and the police, although no arrests were made.

(PHOTO: LAWYER AHMED ABDULLA)



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Nasheed requests reappointments to Hulhumalé court be stopped

Former President Mohamed Nasheed’s legal team have requested that the appointment of new judges to the vacant positions on the Hulhumalé Magistrate Court bench be halted.

The stay order was submitted at today’s High Court hearing in Nasheed’s case against the Judicial Services Commission (JSC) over the legality of the appointment process to the magistrates court.

Despite Nasheed’s representatives insisting that the court consider the request during the hearing, presiding judges asked that it be submitted in writing, saying that the court will deliberate on the issue in a timely manner.

Responding to the request, JSC lawyer Hussain Ibrahim said he was unable to respond as he was unaware that the process of appointing new judges to the Hulhumalé Magistrate Court bench was underway.

Nasheed’s lawyers attempted to add new points to the original case, but the judges again asked that the new point to be submitted in writing, in spite of further protests.

“This hearing will only take arguments from both sides regarding the procedural issue raised by JSC. We will only allow this trial to be conducted as scheduled”, stated Abbas Shareef, the presiding judge.

The case was first raised in 2012, and challenges the legality of the bench, which was assembled to try the opposition leader for the detention of Criminal Court Judge Abdulla Mohamed during his presidency.

JSC’s procedural issue

The JSC lawyer stated that he had no points to add to the arguments made prior to the case’s suspension in April 2013. These included claims that the Hulhumalé bench had been appointed on the orders of the Supreme Court, meaning that the High Court could not deliberate on the decision.

Ahmed Abdulla, member of Nasheed’s team, noted that the letter regarding the appointment of the bench was sent by the Supreme Court in the capacity of the Judicial Council, despite it having been written under a Supreme Court letterhead.

Therefore Nasheed’s lawyers contested that the decision cannot be interpreted as a Supreme Court ruling but must be regarded “an administrative decision by an administrative body”, which would enable the High Court to deliberate on its legality.

The Judicial Council was created under the 2010 Judicature Act to oversee administration of the courts, but its duties were soon absorbed by the Supreme Court in what has been described as a centralising of judicial power.

Hisaan Hussain and Abdulla Shairu also spoke on behalf of Nasheed today, while Hassan Latheef also represented the Maldivian Democratic Party (MDP) leader in court.

Conclusion

The hearing was concluded after a brief statement by Nasheed in which he requested that the High Court grant him the permission to travel freely during the period in between hearings.

Nasheed also expressed his hope that the court had not expedited his case because “we are moving towards the shade of the new penal code, which does not include the article under which I have been charged”.

The presiding judge ended the session with the announcement that a hearing will be held next week in which the court will deliver its verdict on the procedural issues raised by the JSC, explaining to Nasheed that he will be granted permission to leave Malé after making requests in writing.

The MDP yesterday described Nasheed’s trial as the government’s attempt to eliminate President Abdulla Yameen’s political opponents and to prevent them from contesting in the 2018 presidential elections.

Nasheed’s lawyers have previously challenged – unsuccessfully – the establishment of a magistrates court in the Malé suburb, arguing that Hulhumalé is considered to be part of Malé City under the Decentralisation Act and therefore does not require a separate court.

United Nations Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul has previously noted that the “appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws”.

(PHOTO: MINIVAN NEWS ARCHIVE)



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Nasheed trial part of drive to eliminate President’s opponents, says MDP

The Maldivian Democratic Party (MDP) has accused President Abdulla Yameen of manipulating the judiciary to remove opponents, as court proceedings related to former President Mohamed Nasheed’s trial resume tomorrow.

In a press conference held ahead of the High Court trial challenging the legality of the Hulhumalé Magistrates Court’s bench, MDP spokesman Imthiyaz Fahmy suggested that “a very unpopular government” was trying to “invalidate the candidacy of all of President Yameen’s competitors”.

The case will consider Nasheed’s appeal against the assembly of the court’s bench, appointed to try him for the detention of Criminal Court Judge Abdulla Mohamed in January 2012.

Fahmy today suggested that the government’s attitude towards the judge’s detention – which stoked anti-government protests before Nasheed’s controversial resignation on February 7 – was reflected in the recent appointment of a fellow defendant in the case as defence minister.

“If the government believes that the case against President Nasheed is serious; if the case has any substance, why would the government appoint Moosa Ali Jaleel as the defence minister?” asked Fahmy.

Formerly the chief of defence forces, Jaleel retired after 32-years of service following Nasheed’s resignation, later telling parliament’s government oversight committee that he believed the MDP leader had “resigned under duress”.

Court proceeding

Fahmy today also suggested that the Supreme Court’s recent decision to reduce the period allowed for legal appeal was an effort to hastily sentence Nasheed before the implementation of the new penal code in April.

The court’s decision reduces the time allowed to file appeals in the higher courts from 90 days (180 for cases from the atolls) to ten, prompting legal experts to accuse the court of infringing upon the constitutional right to an appeal.

“The new penal code does not have the article under which President Nasheed is being prosecuted nor does it have a specified punishment,” continued Fahmy.

If convicted under the old legal code, Nasheed could face imprisonment or banishment for three years – leaving him ineligible for the 2018 presidential race, under Article 109 (f) of the Constitution.

Nasheed’s MDP has recently formed an alliance with the Jumhooree Party (JP) in defence of what it regards as persistent breaches of the Constitution. The eligibility of the JP’s leader, Gasim Ibrahim, is also under threat after the ruling Progressive Party of Maldives proposed constitutional amendments that would deem him too old to contest the presidency for a third time in 2018.

During tomorrow’s hearing, Nasheed’s legal team and the Judicial Services Commission – which assembled the Hulhumalé Magistrate Court’s bench – will be given ten minutes each to summarise arguments and raise further points regarding procedural issues raised before the case was halted in April 2013.

The judicial watchdog has raised a procedural issue claiming that the High Court does not have the jurisdiction to oversee the case.

After the announcement of the trial, Nasheed’s legal team had requested a one and a half month delay in the trials as further time was required to “review and research the case after recent developments in the judicial system”.

Nasheed’s lawyers have previously challenged – unsuccessfully – the establishment of a magistrates court in the Malé suburb, arguing that Hulhumalé is considered to be part of Malé City under the Decentralisation Act and therefore does not require a separate court.

United Nations Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul has previously noted that the “appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws”.



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High Court Judge Yoosuf Hussain retires

High Court judge Yoosuf Hussain has retired today, with sources close to the court telling Minivan News the decision was made on grounds of ill-health.

According to a statement on the court’s website in Dhivehi, Judge Yoosuf served on the bench of the interim Supreme Court between 2008 and 2010, before being appointed to the High Court.

He had previously served as the chief judge at the Family Court, as a judge at Court No.1, and and as a legal officer of the now-defunct Ministry of Justice and Islamic Affairs.

Although this is the first time a High Court judge has retired, Ahmed Shareef – initially appointed as the court’s chief judge – was demoted to the Juvenile Court in August 2014 by the Judicial Service Commission.

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Maldives’ human rights worsening, Amnesty tells UN

The human rights situation has deteriorated in the Maldives over the past four years, says Amnesty International in its report to the UN Human Rights Council.

In its submission for the country’s second Universal Periodic Review (UPR) titled ‘Republic of Maldives – Ignoring Human Rights Obligations’, the NGO accuses the government of having failed to implement recommendations made in 2011.

“Furthermore, it has effectively been undermining human rights protection by failing to strengthen the independent institutions of the state including the judiciary, which needs urgent reform.”

The report – made public for the first time last week – notes the “emergence of vigilante religious groups”, “fundamental flaws” within the judicial system, and the “feared abduction” of Minivan News journalist Ahmed Rilwan.

It also accuses the government of not defending the independence of the Human Rights Commission of Maldives (HRCM), which is currently being prosecuted by the Supreme Court as a result of its own submission to the UPR.

The UPR is a state-driven process that reviews the human rights records of all 193 UN member states every four years, based on submissions by the government, the UN, NGOs, and national human rights commissions.

mid-term assessment of the Maldives’ conformity with the 2011 recommendations found that it had “fully implemented” only three of the 145 recommendations – with 12 recommendations “partially implemented”, and 33 “not implemented”, 96 recommendations receiving “no response”.

Abductions and impunity

The report also observes the lack of prosecutions for the perpetrators of a series of abductions reported last year, as well as a failure to bring the investigation into Rilwan’s disappearance to a conclusion.

“Impunity for human rights violations, especially for torture and other ill-treatment and for unnecessary or excessive use of force by police against demonstrators has been a persistent failure of the government,” reads the report.

Amnesty highlights the non-disclosure of information regarding alleged excessive force during the raid on the Anbaraa music festival in April last year, as well as the lack of prosecutions for acts of police brutality carried out on February 8, 2012.

Attorney General Mohamed Anil told the Majlis last August that the cases of five officers were ongoing. The Commonwealth-led Commission of National Inquiry described an “urgent need” for accountability and sanctions more than two years ago.

The report accuses the government of failing to protect the rights of freedom of expression and conscience with regards to the murder of MP Dr Afrasheem Ali, the brutal attacks on blogger Ismail Hilath Rasheed and journalist Ibrahim ‘Asward’ Waheed.

“These attacks took a new form in June 2014 when a vigilante religious group kidnapped several young men, held them for hours, ill-treated them and warned them not to promote ‘atheism’.”

“None of the kidnappers have been brought to justice, even though the identities of some of them are allegedly known to the victims.”

Victims of the attacks have identified four individuals familiar with police in two abduction incidents last June, and another in November. The victims were accosted in order to obtain log-in details for online groups in which religion and gang activity were being openly discussed.

The report went on to recommend a moratorium on flogging – which Amnesty regards as “inhumane” and discriminatory in practice, and the death penalty, which the current government has pledged to reintroduce.

“Amnesty International is disappointed that the Maldives did not accept recommendations to remove restrictions in law and practice on freedom of thought, conscience and religion,” it continued.

Judiciary

The report reserves significant space to highlight deficiencies within the judicial system, arguing that a lack of judicial independence and impartiality continued to “undermine fair trials”.

“Since the last UPR, the government has taken no visible action to ensure that standards of judicial independence and impartiality are upheld and monitored,” said Amnesty.

Most importantly, states the report, there has been no action to strengthen the Judicial Services Commission (JSC).

“There is a perception in the Maldives, frequently voiced by judicial and government authorities to Amnesty International, that the principle of judicial independence would not be upheld if the government were to scrutinize the conduct of the judiciary.”

After repeated investigations into the alleged appearance of Justice Ali Hameed in a series of sex tapes in 2013 failed to find adequate evidence for disciplinary proceedings, Hameed was himself appointed president of the commission earlier this month.

“While Amnesty International would oppose interference by the executive in the affairs of the judiciary, it considers that statutory state organs entrusted with maintaining judicial accountability, such as the JSC, should monitor and take action against any breaches of impartiality,” read the UPR submission.

The JSC came in for particular criticism for its role in the dismissal of two Supreme Court judges last month. In a decision slammed for its lack of transparency, the commission found Chief Justice Ahmed Faiz and Justice Muthasin Adnan unfit to sit on the bench.

After Majlis members voted through the JSC’s recommendations, local and international groups expressed concern over the decision’s impact on judicial independence.

After the HRCM’s UPR report – criticising the centralisation of judicial power in the Supreme Court – ‘suo moto’ proceedings were initiated against it last September, prompting Amnesty to call for the commission’s independence to be guaranteed.



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