Tag: JSC

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”.

“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 his interview with news website Haveeru.

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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JSC discusses probing bribery allegations against two judges by former Adhaalath Party President

Members of the state’s judiciary watchdog the Judicial Service Commission (JSC) have discussed probing allegations of bribery levied against two sitting judges by former President of the Adhaalath Party, Sheikh Hussain Rasheed.

During an opposition Maldivian Democratic Party (MDP) rally held last Thursday, Sheikh Rasheed said that last year he had met a Maldivian businessman in Saudi Arabia who had alleged to him that two Maldivian judges had accepted a sum of MVR 12.3 million (US$ 797,148.41).

A JSC spokesperson told Minivan News that after the allegations were made public, members of the commission had discussed an investigation.

“The matter was discussed during the last JSC meeting,” the spokesperson said. Asked whether a decision was reached, he replied “there were many items on the agenda.”

Rasheed alleged the businessman had paid one judge a sum of US$700,000 while other was paid US$50,000 on two different occasions.

The businessman gave the money to prevent his rights being harmed by the other party in the case, whom he alleged had also bribed the judges, Rasheed said.

Rasheed was not available for a comment when contacted.

President of the Anti Corruption Commission (ACC) Hassan Luthfee said he had also heard of Rasheed’s allegations and would giving the matter a high priority.

“The ACC will for sure look into any cases of corruption, regardless of whom it involves. We too have heard of the allegations through the media. We will in the coming days look into this,” he said.

Luthfee said there were no legal barriers to the ACC’s investigation of judicial misconduct, and that the ACC had the jurisdiction to look into any corruption matter even if it involved judges.

“The case will officially be investigated by the ACC,” he said.

Former President’s Member on the JSC, Aishath Velezinee in her book The Failed Silent Coup: in Defeat They Reached for the Gun extensively highlighted the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

In her book, she recounted her experience as the outspoken whistleblower as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.

That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contended, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Chief Criminal Court Judge Abdulla Mohamed two years later.

Current Home Minister Dr Mohamed Jameel Ahmed – himself a former judge and Justice Minister – has admitted the quality of services delivered by the judiciary remains disappointingly gloomy while writing in an op-ed article in Haveeru.

“Our judiciary has some bright minds, but that does not exempt it from scrutiny; the judiciary in the Maldives, with the exception of few courts and judges, the judiciary as a whole has earned a deservedly bad reputation for its inconsistent judgments, lack of leadership, lack of competency and being out of touch with modern laws and views of the society,” he wrote.

In 2004, a report by judicial expert Professor Paul Robinson assessed the country’s criminal justice system, and found in his report that “serious efforts” were required to increase the quality of judges.

“Serious efforts must be made to provide substantial training to current judges in order to ensure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he wrote.

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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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Court scheduling practices enabling judicial corruption: senior legal official

A senior legal official who served under the current and former administrations has claimed the country’s legal system is wide open to corruption, by allowing individual judges to schedule court hearings at their whim.

The legal figure, who has been involved in some of the country’s highest profile cases in recent years, told Minivan News that it was “quite evident” that the lack of a centralised system for scheduling legal hearings was not only resulting in massive inefficiency, but also allowing for corruption within the country’s court system.

Both the Prosecutor General’s (PG) Office and the country’s judicial watchdog body have maintained they have limited involvement at present in deciding when hearings should be scheduled – with almost all decisions being taken by individual courts.

However, a PG’s Office spokesperson claimed that the Criminal Procedure Code presently sitting within the People’s Majlis was, if passed, anticipated to allow pre-trial hearings to give the prosecution and other parties a greater say in agreeing general timeliness for trials.

The senior legal source, who asked to remain anonymous, concurred that the responsibility for scheduling trial and sentencing hearings was presently the responsibility of individual courts and the judges overhearing them. The source alleged the system had created a situation where the judiciary, in certain cases, set hearings either as soon as possible, or instead delay them for up to several years depending on their own preferences and political motivations.

Such inconsistencies within the scheduling of several cases involving senior parliament and political figures – or their close associates – had left courts open to allegations of corruption and political motivation, the senior legal official claimed.

In one case submitted by the PG’s Office that involved a staff member working for former President Maumoon Abdul Gayoom facing allegations of child abuse, the source claimed there had been a delay of several years between the trial’s last last hearing and sentencing – despite all evidence having been submitted to the court.

“The judge presiding over the trail announced that the next hearing would be to deliver sentencing, but there had been delays of several years before this was scheduled,” the source claimed. “I understand letters were written by the PG’s Office asking to expedite the case, yet the situation [of delayed hearings] is quite common.”

The legal source claimed that this was just one example of a number of cases that had undergone significant delays – sometimes over the space of years – awaiting their next hearing within the nation’s courts without any specified reason.

“There must be hundreds of cases like this,” he said. “There is no central system for scheduling hearings, just six or seven judges all acting independently of each other.”

In outlining alleged inconsistencies within the scheduling of court hearings, the source pointed to the decision of the Criminal Court on February 23 this year to dismiss three long-standing counts of fraud against Parliament Deputy Speaker and ruling-coalition aligned MP Ahmed Nazim all at once.

The decision was taken by the court 16 days after the controversial transfer of power on February 7, with the presiding judge stating that Nazim’s “acts were not enough to criminalise him”.

“The Criminal Court dropped all of Mr Nazim’s cases,” the anonymous source claimed. I had never seen a criminal case where so much evidence failed to lead to a conviction.”

In an interview to the local media outlet Sun following the rulings, Nazim claimed that a total of four cases against him over alleged fraud were baseless and had been leveled by former President Mohamed Nasheed’s administration, using false evidence.

Nasheed is currently being tried over the detention of a Criminal Court chief Judge, who he alleges took the country’s legal system into his own hands and posed a threat to “national security”.

Aside from allegations of potential corruption, the source also raised fears that the present lack of a centralised scheduling system was failing to promote accountability or efficiency in the nation’s judiciary.

“If for instance the PG’s Office files two different cases about the same suspect, the courts might schedule one hearing for today and another next week, with the judge unaware that there are pending cases against the suspect.

Mandate

Responding to Minivan News over the allegations of potential judicial corruption, court watchdog the Judicial Services Commission (JSC) referred the matter to the Department of Judicial Administration, saying the scheduling of hearings and any such concerns were not within its mandate.

“The scheduling of court hearings are administrative procedures undertaken by individual courts,” the JSC said.

The Department of Judical Services meanwhile said that when hearing criminal cases there presently existed no time limits by which time court hearings should be scheduled.

“In Criminal cases, there are no regulations stipulating requirements about such time limits. However, the court works on a guideline administratively adopted” said department spokesperson Ahmed Maajid.

Minivan News was still waiting for a response from the Department of Judical Services about these administrative guidelines at time of press.

Questioned as to whether the legal sources were shared by the prosecutor general, a spokesperson for the PG’s Office told Minivan News that it was for the courts to determine the schedule of court hearings.

“Generally we are not involved, unless, for example, a hearing involves travel to some of the country’s outer islands, then we might discuss a schedule with the courts,” he said.

The PG’s Office said it did not “usually” write to the courts regarding the issue of court scheduling , unless it had itself received complaints over the matter.

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Judge Abdulla case to be appealed by JSC

The Civil Court’s annulment of the Judicial Service Commission’s (JSC) decision that Chief Judge of the Criminal Court Abdulla Mohamed is guilty of misconduct has been appealed by the JSC.

JSC Media Official Hassan Zaheen said on Tuesday that the decision to appeal the case was made some time ago.

Judge Abdullah was found guilty of misconduct by JSC following a report by DhiTV News, on July 2009, of a comment made by Judge Abdullah about former President Mohamed Nasheed’s government.

The Civil Court annulled the JSC’s decision on 25 July 2012.

It was ruled by Civil Court that evidence presented by JSC’s investigation team on the subject was not sufficient to prove that Judge Abdulla made the comment.

The Court highlighted that JSC did not allow Judge Abdulla the opportunity to present his defence on this case.

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JSC asks Supreme Court to look into legality of Hulhumale Magistrate Court

Former President Mohamed Nasheed’s legal team has stated that neither the Attorney General’s Office nor the Prosecutor General’s Office presented any arguments to confirm the legality of the Hulhumale’ Magistrate Court at Sunday’s hearing at the High Court.

Member of the legal team, Hisaan Hussain, however stated that the Judicial Services Commission (JSC) had used the opportunity to present its case.

At a press conference held Sunday, Hisaan further 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.

JSC lawyer Abdul Fahthah stated in court today that the JSC had lodged a case at the Supreme Court on the same morning asking the court to look into the matter of the legality of the Hulhumale’ Magistrate Court.

Meanwhile, the Hulhumale’ Magistrate Court has stated that along with Nasheed’s trial, the trials of the other four persons regarding the arrest of Criminal Court Chief Judge Abdulla Mohamed have now been temporarily halted.

In addition to Nasheed, former Minister of Defence and National Security Tholhath Ibrahim Kaleyfanu, former Chief of Defence Force retired Major General Moosa Ali Jaleel, retired Brigadier General Ibrahim Mohamed Didi and Colonel Mohamed Ziyad are also being tried individually for the same case.

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.

Minivan News was unable to contact the PG Office and the AG Office at the time of press.

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“Legal order” last option to compel judges to attend committee: MDP

A “legal order” from parliament is the last available option to compel three judges of the Hulhumale’ Magistrate Court to attend parliament’s Government Oversight Committee, following their refusal to answer two previous summons, the Maldivian Democratic Party (MDP) said in a statement on Saturday.

The press release stated that “the excuses” offered by the three magistrates on administrative grounds – contending that as judges of the lower courts they doubted whether they could answer questions regarding the Commission of National Inquiry’s report and that they needed to await a decision by the Judicial Service Commission (JSC) – were “reasons that lacked any principle.”

“Therefore, the party notes that the measure left to be taken to bring the summoned judges to the Majlis committee is to issue a legal order to that effect,” the statement read.

Asked for clarification on the “legal order”, MDP Spokesperson MP Hamid Abdul Gafoor said that the statement did not refer to a court order contrary to the “assumption” by Sun Online and Haveeru.

“No mention was made of a court order in the news brief. Sun appear to have assumed so. The Majlis can bring out an ‘amuru‘ [order] according to house rules,” Hamid explained.

‘Hulhumale’ Magistrate Court’

The MDP also contests the legitimacy of the Hulhumale’ Magistrate Court, which was created by the JSC before the enactment of the Judicature Act in October 2010.

A constitutional case concerning the magistrate court is currently pending at the Supreme Court.

Writing in his personal blog on October 9, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, explained that a magistrate court could not be established at Hulhumale’ as the Judicature Act states 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 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’ should therefore have been dissolved when the Judicature Act was ratified, Nasheed argued.

The three magistrates of the contested Hulhumale’ Magistrate Court are Shujau Usman, Abdul Nasir Abdul Raheem and Hussain Mazeed.

“Summon any person”

The MDP statement meanwhile observed that article 99(a) of the constitution states that the People’s Majlis or any of its committee has the power to “summon any person to appear before it to give evidence under oath, or to produce documents. Any person who is questioned by the People’s Majlis as provided for  in this article shall answer to the best of his knowledge and ability.”

However, following the first attempt to summon the magistrates, the JSC and the Supreme Court made public statements insisting that the JSC was the only authority empowered by the constitution to hold judges accountable.

A statement by the JSC on October 9 citing the constitution, the Judicature Act and the Judicial Service Commission Act contended that no other state institution could interfere with the work of judges or make any attempt to hold judges accountable.

Under article 159(b) of the constitution, the JSC is empowered with the power and responsibility “to investigate complaints about the judiciary, and to take disciplinary action against them, including recommendations for dismissal.”

Parties in the ruling coalition have meanwhile condemned the decision to summon the magistrates as an attempt to influence the trial of former President Mohamed Nasheed at the Hulhumale’ Magistrate Court on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed.

The formerly ruling MDP has a voting majority on the Government Oversight Committee.

While Speaker Abdulla Shahid sent the summons issued by the committee on October 9, local media reported that parliament’s Counsel General Fathmath Filza had advised that summoning judges was not within the mandate of the committee.

Meanwhile, following the judges’ snub of the second summons, MDP MP Ali Waheed told reporters outside parliament on Wednesday that the actions of the magistrates and the JSC as well as the Supreme Court’s encouragement of their behaviour was a “cat and mouse game” played by the judiciary.

“What we are witnessing is a ‘cat and mouse’ or a ‘hide and seek’ game being played between parliament and judiciary. If that is the case, we are going to play the cat and mouse chase, because we are not going to step back from our responsibilities,” he said.

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MDP decides to stop following court orders until judicial system is reformed

The Maldivian Democratic Party (MDP) has released a statement saying it will no longer follow any orders given by the courts of the Maldives until the changes proposed by international entities are brought to the Maldivian judicial system.

The party said the decision was reached as to date, they had observed no efforts to improve the judicial system based on the recommendations put forward in reports released by numerous international organizations.

Former Minister of Foreign Affairs Ahmed Naseem proposed a motion regarding the matter at the party’s 128th National Executive Council (NEC) meeting Thursday, which was seconded by Former Minister of Environment and Housing Mohamed Aslam.

The motion stated that the party believed the increasing number of arrests and allegations of serious crimes like terrorism against a large number of citizens, parliament members, city councillors, and other elected political leaders were politically motivated. It further stated that this was unjust manipulation of the judiciary by the government to weaken political competition, and an attempt to prevent Nasheed from contesting in the upcoming presidential elections.

The MDP also states that with reference to the reservations put forward by former President Mohamed Nasheed’s legal team on Wednesday, it does not believe any of the existing courts would be able to give Nasheed a fair and just trial.

MDP furthermore intends to go ahead with the trips to the atolls planned to commence on October 1, after the motion was passed unanimously at the NEC meeting.

The Hulhumale’ Magistrate Court has placed Nasheed under island arrest effective from Tuesday, with regard to a case concerning the arrest of Criminal Court Chief Judge Abdulla Mohamed last year.

In reaction to this, MDP has also announced its intention to conduct a nationwide protest on Friday.

A number of international actors, including the UN Human Rights Committee, Amnesty International, European Union and the United States have previously emphasised the importance of judicial reform in the Maldives.

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Nasheed case proceedings against laws and norms: Nasheed’s legal team

Former President Mohamed Nasheed’s legal team has expressed concern that Nasheed is not being given the opportunity to have a fair trial.

At a press briefing held on Wednesday they detailed concerns about the procedural and legal matters around the case against Nasheed, stating much of the proceedings were against both the constitution and the laws of the Maldives.

Nasheed has been currently placed under island arrest, with regard to a case concerning his arrest of Criminal Court Chief Judge Abdulla Mohamed last year.

Hulhumale’ court’s legality in question

Member of Nasheed’s legal team Hisaan Hussain voiced concerns that the Hulhumale’ Magistrate Court, tasked with presiding over the case, was formed unconstitutionally. Quoting Article 141 (a) of the Constitution and Articles 53 (b) and 62 of the Maldives Judicature Act, Hisaan stated that it was clear the Hulhumale’ Magistrate Court was established out of the boundaries of law.

Hassan also noted that there was an existing case in the Supreme Court, where the court had been asked to rule on whether the Hulhumale’ Magistrate Court had been formed in accordance with existing laws. She said that although they did not know who had filed the case, it had been filed prior to the decision to have the court preside over the case against Nasheed. The Supreme Court has not yet made a ruling on the case.

However, an official from the Hulhumale’ Court who did not wish to identify himself said to Minivan News today, “We are not officially aware that such a case regarding this court exists.”

He further said that the Department of Judicial Administration was mandated to provide details on similar issues to the media.

However, Department of Judicial Administration’s Spokesperson Latheefa Gasim said that they did not wish to comment on the issue at this point in time.

Panel of Three

Former Minister of Youth and Sports and member of Nasheed’s legal team, Hassan Latheef stated that the panel of three magistrates which are to preside over the case was selected in violation of Article 67 of the Judicature Act, which specifically outlines how magistrates can be assigned to courts. He said that none of the three magistrates assigned by JSC were appointed to the Hulhumale’ Magistrate Court.

Latheef said that in contrast to international practices, the magistrates for this particular case had been “handpicked from around the country”. According to him, this was in direct violation of the Maldives Judge’s Act.

In addition to this, Hassan revealed that one of the three magistrates assigned by the Judicial Services Commission (JSC) was currently being investigated by the commission on two different offenses, a charge of corruption and of sexual offence.

Latheef further said since the strongest penalty against Nasheed in this case was a 3 year jail sentence, the case could not be considered an offence serious enough to warrant three magistrates to preside over it. He confirmed that this was the first time a case regarding an offence against Article 81 of the Penal Code was being overseen by a panel, rather than a single judge.

The legal team noted that they believed Nasheed was being discriminated against due to his political views. They pointed out that this was in violation of Article 17 of the constitution.

JSC Media Officer Hassan Zaheen spoke to Minivan News today regarding the concerns raised by MDP.

“It is not MDP that gets to decide whether or not a panel needs to be formed. In Islamic Shariah there is nothing to stop us from doing something just because it hasn’t been done before,” he said.

Zaheen further stated that it was constitutional to bring in magistrates from any part of the country to sit on the case and that this was clearly defined in law.

“JSC can bring in judges from anywhere, as long as they are of the same level. It is clearly defined in the Judges Act, or the Judicature Act, or some relevant law. These are all magistrates,” he said.

Zaheen denied that Nasheed was being discriminated against.

“Has another president of Maldives had a criminal case against him? No. Now, if a similar case has not occurred before, there is no room to claim there is discrimination. What are they comparing with?”

Violation of fundamental rights

Nasheed’s legal team expressed concern that the case was being handled outside of all norms.

They pointed out that the Prosecutor General, Human Rights Commission of the Maldives (HRCM) and the Ministry of Gender, Family and Human Rights had so far stayed silent on the matter, although it was within their mandate to protect the rights of the people.

Media Official of the Prosecutor General’s Office Hussain Nashid declined from commenting to the media.

“I will not comment about a case which is in the courts currently. The PG office will make whatever necessary statements during court sessions only.”

HRCM and the Human Rights Ministry were unable to comment on the matter at the time of press.

In January, a group of lawyers had forwarded this same case, concerning the arrest and detention of Criminal Court Chief Judge Abdulla Mohamed to the International Criminal Court.

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