Any trials of criminal cases in the absence of a prosecutor general (PG) and a deputy PG violates the constitution, Drug Court Judge Mahaz Ali has said.
Writing on his personal blog, Mahaz disagreed with the attorney general’s (AG) recent suggestion that the official in the senior most position at the PG office must take over the PG’s responsibilities.
AG Mohamed Anil claimed the country was in the midst of a “state of necessity” in the aftermath of acting PG Hussain Shameem’s resignation earlier this week.
The doctrine of necessity is the basis on which extra-legal actions by state actors, designed to restore order, are deemed constitutional.
Both the Maldivian Democratic Party (MDP) and the Maldives Bar Association have also spoken out against the government’s stance on the matter.
State of necessity
Mahaz wrote that the state of necessity argument was valid only if there was no legal solution, suggesting that there was no reason President Abdulla Yameen could not propose a name for approval by the People’s Majlis.
“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.
“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”
Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, President Yameen said he will only submit a new nominee to the newly elected house – set to convene on May 28.
After a drawn out nomination process, Yameen’s previous choice for the role – his nephew, Maumoon Hameed – failed to gain the required number of votes in parliament last month. In contrast to the previous session, pro-government parties will enjoy a healthy majority in the 18th Majlis.
Judge Mahaz argued that the Supreme Court order on 6 February – which ordered criminal courts to accept cases filed by the PG’s Office – did not provide a solution, only mentioning how to act in absence of a PG. The Supreme Court order was prompted by the Criminal Court’s January decision to refuse new cases until a new appointment was made.
Mahaz also referred to previous case law regarding the Attorney General’s Office, noting that no superior court had deemed similar instances to be ‘situations of necessity’ requiring the next in line to take charge of the office.
In July 2010, the eight Civil Court judges unanimously decided they would not proceed with civil cases in the absence of an AG following then-AG Husnu Suood’s resignation.
Violation of independence
The Bar Association of the Maldives has also joined the debate, arguing that the AG’s advise was inconsistent with the Prosecutor General Act, and that Shameem’s resignation had created a leadership vacuum.
The resignation of the deputy PG while the position of PG was vacant had left the office with no official who could now assume its legal responsibilities, the association said, arguing state prosecutors cannot represent the PG in the courts in the current situation.
“Given that the prosecutor general’s position is an independent and impartial position, this office believes the government’s exertion of influence by ordering state prosecutors to attend courts is a violation of the office’s independence,” the association said in a statement.
Despite the Prosecutor General’s Act requiring the appointment of a new PG within 30 days of the position’s vacancy, Shameem has headed the office for over five month’s following the resignation of his predecessor Ahmed Muiz in November.
The Criminal Court was forced to cancel more than 100 cases last week as state prosecutors refused to attend hearings, doubting their current legal capacity to represent the PG’s Office.
The Hithadhoo Court in Addu City is conducting criminal trials, however, and is issuing verdicts in the absence of a state prosecutor. Court officials told local media on Thursday that they did not accept the justification of absence put forth by lawyers from the PG’s Office.
In his resignation statement, Deputy PG Shameem had said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses, and “unreasonable obstacles” in filing cases at the court.
The President’s Office put out a third call for names this week, claiming the previous number of applicants had been low during the second call. Shameem had expressed interest in the position both times, while local media has speculated that a third call will allow Hameed to resubmit his application.
The MDP has also commented on the current situation, accusing President Yameen of nepotism:
“In contravention to principles of good governance in democratic countries, it is evident is more for the president in this current state to appoint his nephew or other relatives to the position of Prosecutor General.”