High court rejects Nasheed’s appeal challenging legitimacy of Hulhumale’ magistrate court

The High Court has rejected former President Mohamed Nasheed’s appeal challenging the legitimacy of Hulhumale’ Magistrate Court, and its summoning of him in connection to the detention of Chief Criminal Court Judge, Abdulla Mohamed.

The former President’s legal team appealed the  court’s summoning order issued to police to summon him to a rescheduled hearing to be held on Sunday at 4:00pm.

Nasheed and his lawyers did not appear at the court hearing, and police made no attempt to arrest the former President.

The trial, which has been described by present Home Minister and former Justice Minister Mohamed Jameel on twitter as a “historic criminal trial” has escalated political tensions in the country.

Nasheed’s legal team earlier on Sunday challenged the legitimacy of Hulhumale’ Magistrate Court, claiming that the court was formed in contradiction to the provisions stated in the Maldivian constitution.

Speaking to local media , member of Nasheed’s legal team and the former Minister of Human Resources Hassan Latheef said the Hulhumale court had “no legal capacity” to issue an order to police to summon Nasheed.

“In the appeal, we also intend to raise the question of legitimacy surrounding Hulhumale’ Magistrate Court.  We also hope that the High Court will make a decision on the legality of the formation of this court,” explained Latheef.

The team had filed for a temporary court injunction to halt the trial until the appeal case was concluded.

Former MP and President of MDP Ibrahim ‘Ibra’ Ismail echoed similar remarks,raising doubts on the legitimacy of Hulhumale’ Magistrate Court.

Writing on his personal blog, Ibra claimed that the constitution had very clearly mentioned that trial courts would be defined and created by a law.

“When Parliament created courts by the Judicature Act, there was no ‘Hulhumale’ Court’ designated as a Magistrates Court,” he wrote.

“The Supreme Court itself is still sitting on the case of the validity of the [Hulhumale’ Magistrate Court]. It was created by the Judicial Service Commission (JSC), without authority derived from law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, ie, orders which are not derived from law,” he explained.

He also cast doubts on the legitimacy of the JSC’s decision to appoint a panel of judges to look into the case.

“The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court only) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of THAT court. In this case, a panel of judges from other courts was appointed by the JSC to [Hulhumale’ Magistrate Court]. The JSC does not have that authority by Law,” he contended.

“There is more than ample grounds to contend that the summons was issued by an unlawful panel of judges, sitting in an unlawful court, which had already issued an unconstitutional restraining order which was ultra vires,” he added.

Nasheed was initially to appear at the Hulhumale Magistrate Court on last Monday but instead decided to depart on his party MDP’s campaign trip ‘Vaudhuge Dhathuru’ (‘Journey of Pledges’) to southern atolls, defying a previous court order that he remain in the capital.

On September 26, Hulhumale’ Magistrate Court ordered that the former President be confined to Male’, ahead the court case.

The court officials claimed that such a travel ban was the “standard procedure” followed by all courts to “necessitate those accused in a case to obtain permission from the relevant court to leave the country”.

Following Nasheed’s failure to present himself on last Monday’s hearings, Hulhumale Magistrate Court asked the Maldives Police Service to “produce” Nasheed for the rescheduled hearings but was “not to be detained”.

Initially upon reception of the Hulhumale Court’s request, Police Media official Sub-Inspector Hassan Haneef said the authorities would enforce the “court order” to summon Former President Mohamed Nasheed to the court.

However, police on last Saturday said in a statement that, given the phrasing of the request made by the Hulhumale’ Magistrate Court, Nasheed could only be produced to the court with his consent and the request did not mention to detain him.

The statement by the police stated that “producing someone out of his will” would mean to “limit his freedom” and therefore it amounted to an arrest which was not mentioned in the court’s request.

Hulhumale’ Magistrate court initially rejected the case forwarded by the Prosecutor General against former President, stating that the court did not have the jurisdiction to look into such cases as stated in the Judicature Act.

The state then appealed the decision in High Court and won its case where the Hight Court invalidated the decision.

Deputy Prosecutor General Hussain Shameem, dissenting the decision of Hulhumale’ Magistrate Court claimed that the court did have the jurisdiction to hear the case of former President.

He contended that should the court maintain its decision against hearing the case, there were few other judicial alternatives in trying to ensure a “fair trial”.

The High Court ruling stated the case was based on the “unlawful detention” of a person, adding that magistrate courts have the jurisdiction to proceed with such cases.

Following the High Court ruling, Hulhumale’ Magistrate Court decided to re-accept the case and proceed with the hearings.

On January 16, Chief Judge Abdulla Mohamed was detained by the military, after he had opened the court to order the immediate release of former Justice Minister, current Home Minister and deputy leader of the Dhivehi Qaumee Party (DQP), Dr Mohamed Jameel Ahmed.

The former Home Minister Hassan Afeef said at the time that military assistance was sought for “fear of loss of public order and safety and national security” on account of Judge Abdulla, who had “taken the entire criminal justice system in his fist”.

Judge Abdulla’s arrest sparked international criticism of the Nasheed administration as well three weeks of anti-government protests in January, leading to Nasheed’s controversial resignation on February 7.

Along with Nasheed, former Defence Minister Tholhath Ibrahim as well as three other senior military officers are facing charges over the arrest of the judge.

Nasheed has meanwhile vowed to his supporters that his name would appear on the ballot paper of the next presidential election, and that he was “not in the mood to be straitjacketed and put in a dungeon.”


Hulhumale’ Magistrate Court re-accepts ex-President Nasheed’s prosecution case

Hulhumale’ Magistrate Court has decided to re-accept the prosecution case of former President Mohamed Nasheed, who has himself called for any trial against him to be expedited.

Nasheed along with former Defence Minister Tholath Ibrahim kaleyfaan and three Maldives National Defence Force (MNDF) officers are being charged for their alleged role in detaining Criminal Court Chief Judge Abdulla Mohamed.

Abdulla Mohamed, who was a central figure in the downfall of former President Nasheed, was brought under military detention after Nasheed’s government accused him of political bias, obstructing police, stalling cases, having links with organized 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.

The three MNDF officers facing charges are former Chief of Defense Forces Moosa Ali Jaleel, Brigadier-Retired General Ibrahim Mohamed Didi and Colonel Mohamed Ziyad.

General Didi, who was serving as the Male’ area commander at the time of Judge Abdulla’s arrest, penned his“premature” resignation” after 32 years of service in the military upon the PG’s decision to prosecute him.

Ex-Chief of Defence Force Jaleel had also retired following the controversial transfer of power on February 7, while Colonel Ziyad has maintained he would be present in his uniform to defend himself in the court.

Initially the magistrate court refused to proceed with the trial stating that it did not have the jurisdiction to deal with such cases under the Judicature Act.

Magistrate of the court, Moosa Naseem at the time told Minivan News that they had “studied” the case and had identified that the court “did not have the jurisdiction to deal with the case” referring to article 66 of Judicature Act.

According to article 66(b) of the act, Naseem contended that the Hulhumale’-based court could only accept the case after the Chief Justice issued a decree in agreement with the Judicial Service Commission (JSC) and the Judicial Council.

Article 66(b) of the Judicature Act states that: “in accordance with section (a) of this article, if additions or omission to the jurisdictions stipulated in schedule 5 of this Act has to be carried out, the modification has to be done in agreement with the Judicial Service Commission and the Judicial Council and by a decree issued by the Chief Justice.”

The Magistrate court’s decision to overturn its initial refusal follows the High Court’s invalidation of its decision, following appeals from the authorities.

In invalidating the magistrate court ruling, the High Court stated the case was based on the “unlawful detention” of a person, adding that magistrate courts in the country had the jurisdiction to proceed with such cases.

The ruling also said that as the incident occurred in Male’ area, the Hulhumale’ Magistrate Court again had the jurisdiction to proceed with the case.

An official from the Prosecutor General’s Office told Minivan News today that the case was submitted yesterday afternoon along with that of the other MNDF officers.

The Judicial Administration department today announced that the hearings of the case will be conducted in the Justice Building, located in Male’.

An official from the department told local media that the decision was made after considering the fact that holding the trials in the Justice Building would ease the administrative process and that the facilities available would also be an advantage.

“The trials will proceed at the hall in the ground floor of the building,” he added.

The letter

Following High Court’s decision, ex-President Nasheed stated in a press conference held last Friday that he had sent a letter requesting the Hulhumale’ Magistrate Court to expedite the case.

Initially, the magistrate court denied the receipt of Nasheed’s letter but later in a press statement acknowledged the reception of the letter and stated that steps were being taken to commence the trial as soon as possible.

Nasheed maintained that he is willing to be present at court to defend his decision to arrest the Judge, reiterating that if he should return to power again, he would still do the same, alleging that Judge Abdulla was central to the flawed criminal justice system of the country.

In April, Nasheed told the UK’s Guardian that he did not like arresting a judge, but he “just couldn’t let him [Abdulla Mohamed] sit on the bench.”

“There is a huge lack of confidence in the judiciary, and I had to do something and the constitution calls upon me to do that. It’s not a nice thing to do. And it’s not a thing that I would want to do. And it’s not a thing that I liked doing. But it had to be done,” he added.

Nasheed, who is also now the presidential candidate of the opposition Maldivian Democratic Party (MDP), stands charged with violating Article 81 of the Penal Code, which states that the detention of a government employee who has not been found guilty of a crime is illegal.

If found guilty, Nasheed and Tholhath will face a jail sentence or banishment for three years or a Rf 3000 fine (US$193.5), a sentence that would bar him from contesting the elections.

The opposition MDP has claimed that the case is politically motivated by Nasheed’s opponents in an attempt to bar him from running for future elections.

Home Minister Mohamed Jameel in a post on social media service Twitter has said the “historic criminal trial” is the “first step towards the national healing process.”

Meanwhile, the MDP claimed it expects the trial – whether in Hulhumale’ or another court – to go ahead regardless of legality.  The party has alleged the case serves solely as a mean to convict the former president and potentially prevent him from contesting in the next presidential election.

MDP Spokesperson MP Imthiyaz Fahmy did not respond to calls at time of press.

The Arrest

The chief judge was detained by the military, after he had opened the court to order the immediate release of the current Home Minister and deputy leader of the Dhivehi Quamee Party Mohamed Jameel Ahmed.

Jameel was arrested after President’s Office requested an investigation into “slanderous” allegations he made that the government was working under the influence of “Jews and Christian priests” to weaken Islam in the Maldives.

The judge’s whereabouts were not revealed until January 18.

As Judge Abdulla continued to be held, Prosecutor General (PG) Ahmed Muizz later joined the High Court and Supreme Court in condemning the MNDF’s role in the arrest, requesting that the judge be released.

The police are required to go through the Prosecutor General’s (PG) Office to obtain an arrest warrant from the High Court, Muizz said, claiming the MNDF and Nasheed’s administration “haven’t followed the procedures, and the authorities are in breach of law.They could be charged with contempt of the courts.”

He then ordered the Human Rights Commission of the Maldives (HRCM) to investigate the matter.

Judge Abdulla’s arrest sparked three weeks of anti-government protests, beginning in January, while the government appealed for assistance from the Commonwealth and UN to reform the judiciary.

As protests escalated, elements of the police and military mutinied on February 7, alleging Nasheed’s orders to arrest the judge were unlawful. A Commonwealth legal delegation had landed in the capital only days earlier.

Nasheed publicly resigned the same day, but later said he was forced to do so “under duress” in a coup d’état. Nasheed’s Maldivian Democratic Party (MDP) has taken to the streets in recent months calling for an early election.

Judge Abdulla was released on the evening of February 7, and the Criminal Court swiftly issued a warrant for Nasheed’s arrest. Police did not act on the warrant, after international concern quickly mounted.