Parliament today accepted amendments to the Judicature Act submitted by Independent MP Mohamed ‘Kutti’ Nasheed to abolish the magistrate court in Hulhumale’.
The legislation (Dhivehi) was narrowly accepted for consideration with 32 votes in favour, 31 against as well as one abstention and sent to the Independent Institutions Committee for review.
The Independent MP for Kulhudhufushi South proposed the amendments in December 2012, following a controversial 4-3 Supreme Court ruling declaring the Hulhumale’ Magistrate Court legitimate.
The judgment cleared the way for the magistrate court to proceed with the trial of former President Mohamed Nasheed on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed in January 2012.
Nasheed’s formerly ruling Maldivian Democratic Party (MDP) disputes the legitimacy of the magistrate court, contending that it was created by the Judicial Service Commission (JSC) in violation of the Judicature Act.
Writing in his personal blog after submitting the amendments, MP Nasheed explained that he would have accepted the apex court’s decision as final and incontrovertible if Supreme Court Justice Adam Mohamed Abdulla – chair of the JSC – had recused himself.
“The [Hulhumale’] court was formed by the commission. The vote on forming the court was called at a meeting of the commission chaired by [Justice Adam Mohamed]. The case requesting the Supreme Court to declare the court legitimate was submitted by the commission chaired by the justice,” Nasheed wrote.
Justice Adam Mohamed “created the court, filed the case, and decided the case in his favour,” Nasheed wrote.
Echoing the criticism, former Attorney General Husnu Suood, who argued the case at the Supreme Court, described the decision at the time as “a case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, [tie-breaking] vote by JSC [president].”
Chief Justice Ahmed Faiz Hussain, Justice Abdulla Areef and Justice Muthasim Adnan had delivered the dissenting opinion ruling that the magistrate court was not established in accordance with the Judicature Act.
MP Nasheed’s amendments would meanwhile see the magistrate court abolished and its cases transferred to the superior courts (Criminal Court, Civil Court, Family Court, Juvenile Court and Drug Court) in Male’.
Moreover, an article would be added to the Judicature Act explicitly stating that the islands of Hulhumale’ and Vilimale’ should be considered part of Male’ City.
Vili-Maafanu and Hulhu-Henveiru are both electoral districts or constituencies in the capital with elected MPs and city councillors.
In a blogpost in October 2012, Nasheed observed that the Judicature Act stipulates that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court, Drug Court and Juvenile Court).
According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island.
The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified, Nasheed contended.
In the latter blogpost on amending the law governing courts, Nasheed explained that the purpose of amending the Judicature Act was to “clarify the Majlis’ intent as the [Supreme Court] has made a decision that conflicts with the intent of the Majlis in passing the law.”
If a Supreme Court interpretation of an article or provision in an act of parliament was “not the outcome intended by lawmakers,” Nasheed suggested that the remedy was amending the law to ensure the desired effect.
If the amendments are passed and signed into law, Nasheed wrote, a magistrate court could not be set up in the capital Male’ on the pretext of “two or three articles in the Judicature Act”.
Hulhumale’ Magistrate Court
During the first hearing of former President Nasheed’s trial at the magistrate court, the ex-president’s lawyers raised procedural points challenging the legitimacy of the court, which were summarily dismissed by the three magistrates on the bench.
Nasheed’s legal team then appealed the magistrate court’s ruling on the procedural points at the High Court.
On November 4, 2012, the High Court granted a stay or an injunction temporarily suspending the trial pending a ruling on procedural points.
The injunction prompted the Hulhumale’ Magistrate Court to announce that it had suspended all ongoing cases as they could be affected by the questions raised over the court’s legal status.
However, before the High Court could issue a ruling on the appeal, the JSC filed a case in Supreme Court requesting a decision to declare the magistrate court legitimate.
On November 8, 2012, the Supreme Court instructed the High Court to halt its hearings on the former President’s appeal.
The Supreme Court also ordered the Civil Court to send over all files and documents on a case submitted over a year ago by lawyer Ismail Visham, which challenged the legitimacy of the Hulhumale’ Magistrate Court.
The Supreme Court issued a writ of mandamus ordering the lower court to suspend its hearings and took over the case.
Meanwhile, a week before the Supreme Court delivered its 4-3 judgment declaring the magistrate court legitimate, parliament’s Independent Institutions Committee voted not to recognise the legitimacy of the Hulhumale’ court.
The oversight committee, chaired by MP Nasheed, decided that there were no “legal and constitutional grounds” to support the court’s legal status.
However, in an unprecedented move, the Supreme Court issued an order (No. 2012/SC-SJ/05) invalidating the committee’s decision.
The Supreme Court declared that no institution should meddle with the business of the courts, claiming that it held parental authority over “constitutional and legal affairs” and would not allow such “interference” to take place.
“Any action or a decision taken by an institution of the state that may impact the outcome of a matter that is being heard in a court of law, and prior to a decision by the courts on that matter, shall be deemed invalid, and [the Supreme Court] hereby orders that these acts must not be carried out,” the order read.
Meanwhile, earlier this month, the High Court granted a second injunction or stay halting former President Nasheed’s trial at the Hulhumale’ Magistrate Court.
The trial was suspended pending a ruling by the High Court on the legitimacy of the three-magistrate bench appointed by the JSC to preside over Nasheed’s trial.
The injunction followed testimony by members of the JSC to the Independent Institutions Committee claiming that the three magistrates chosen by JSC were appointed arbitrarily.