Tag: Nasheed trial

High Court brings forward Nasheed’s appeal case

The High Court has brought forward former President Mohamed Nasheed’s appeal case, now scheduled for Sunday.

Nasheed is being tried in the Hulhumale’ Magistrate Court for the controversial detention of Chief Judge of Criminal Court Judge Abdulla Mohamed in January 2012.

The former President’s legal team lodged the appeal challenging the Hulhumale’ Magistrate Court’s ruling on three procedural issues raised during the court’s first hearing held October 9.

Speaking to Minivan News, MP Mariya Ahmed Didi confirmed the legal team had been informed of the decision to move the hearing.

“I understand from President Nasheed’s lawyers that they have received summons for February 3, as Nasheed had requested to depart the country the afternoon after the hearing. As far as I understand no particular reason was cited,” she said.

Didi however expressed concern over the High Court taking decisions on such short notice, stating that as Nasheed received legal council from abroad, such sudden changes in scheduling were inconvenient.

“These are Queens Counciler’s and their schedules are set in advance.  It is not possible to reschedule at such short notice. We have requested the High Court to bear with us on that,” she said.

Didi contended it was imperative that Nasheed be given “all opportunities to defend himself as a defendant in a criminal trial”. Nasheed “should not be an exception to that,” she said.

Spokesperson for the Department of Judicial Administration (DJA) Latheefa Gasim was not responding.

Meanwhile, Nasheed’s legal team has also sought an opportunity to highlight in court the Supreme Court’s ruling concerning the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court has declared that Hulhumale’ Magistrate Court is legitimate and can operate as a court of law, following the Judicial Service Commission (JSC)’s request that it clarify the court’s legality.

MP Mariya said Nasheed’s legal team was of the opinion that the issue decided in the Supreme Court was different from the issue put before the High Court by the legal team.

“We hope the High Court will give our lawyers the opportunity to explain the distinction and consider all issues before they give a judgment on the matter,” she said.

Following the Prosecutor General (PG)’s decision to press charges against Nasheed in the Hulhumale’ Magistrate Court instead of Criminal Court, Nasheed’s legal team initially challenged the legitimacy of the Hulhumale’ court arguing that it was created in violation of the Judicature Act.

The team raised the issue during the first hearings of the trial, along with other procedural inconsistencies, but all were rejected. They later appealed the case in the High Court along with other procedural issues.

Despite its initial rejection of the procedural points, the High Court later accepted all points made by Nasheed’s legal team except that concerning the legitimacy of the Hulhumale’ Magistrate Court. It later issued an injunction ordering the magistrate court to suspend Nasheed’s trial until a decision on the procedural points raised by Nasheed’s legal team was reached.

Controversies

The case has been subject to controversy after Nasheed’s party  claimed the trial was a politically motivated attempt to bar Nasheed from contesting in the next presidential elections.

The UK Bar Human Rights Committee (BHRC) in a recent report concluded that the charges against Nasheed appeared to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential elections.

“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,” the report stated.

The report 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.

Arrest of the judge

Chief Judge of the Criminal Court Abdulla Mohamed was taken into military detention of January 16, 2012 at the request of then Home Minister Hassan Afeef on the grounds that the judge posed a threat to national security.

The judge had successfully blocked investigation of his misconduct by the judicial watchdog and quashed his own police summons.

Abdulla Mohamed had “taken the entire criminal justice system in his fist,” Afeef said, accusing him 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.

The arrest triggered series of anti-governmental protests that eventually led to the sudden resignation of then President Nasheed on February 7, 2012.

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MDP accuses Home Minister of influencing former President’s trial

The Maldivian Democratic Party (MDP) have accused Minister of Home Affairs Dr Mohamed Jameel of attempting to influence an ongoing court case against former President Mohamed Nasheed.

The party has previously alleged the charges against Nasheed – of illegally detaining Chief Judge of the Criminal Court Abdulla Mohamed in the final days of his presidency – are a politically-motivated attempt to prevent him competing in the upcoming election.

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.”

Jameel, who served as Justice Minister under the tenure of former President Maumoon Abdul Gayoom, said that delaying the trial against Nasheed for “the abduction of a judge” risked “compromising national interest”.

He alleged the delay was 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.”

Jameel stated that the case has a direct relation to the interest of the upcoming elections since the arrest of Abdulla Mohamed was a criminal case which involved citizens’ rights, trust of the judiciary, as well as the the running of the state.

Stating that the conclusion of the case was imperative for the sake of maintaining peace in the country in the upcoming days, Jameel added that it was constitutionally mandated for all involved to find methods to expedite such cases.

Minister attempting to influence courts: MDP

Following Jameel’s remarks, former President Nasheed released a statement condemning “attempts by the sitting Minister of Home Affairs, Dr Mohamed Jameel, to exert undue influence on the courts over the trial against President Mohamed Nasheed.”

The statement further expressed concern that a representative of the government had made such remarks while it had failed to date to act upon the recommendations of international organisations, including the UN Human Rights Commission (UNHRC), the International Commission of Jurists (ICJ) and the Commonwealth Ministerial Action Group (CMAG), to reform the judicial system.

“Just days after Commonwealth envoy Sir Don McKinnon left the Maldives, Dr Jameel calls on the judiciary to sentence the MDP’s presidential candidate,” said former Chairperson of the Maldivian Democratic Party (MDP), MP Mariya Ahmed Didi.

“MDP members believe Sir Don’s silence on the issue of Nasheed’s prosecution emboldened the Home Minister to make his comments,” she said.

“Jameel’s call on the courts to sentence President Nasheed prior to the presidential elections adds to the impression that the charges are politically motivated. We urge the Home Minister to refrain from intimidating and exerting undue influence on the the judiciary,” she added.

Nasheed  has previously alleged that the objective of the trial was to obstruct him from contesting the upcoming presidential elections.

“The Prosecutor General’s only objective is to ensure that I cannot contest in the next presidential elections. To do so, he has identified an article which would provide just the required period of detention to cancel my candidacy,” Nasheed told an MDP rally in October 2012.

Nasheed is being tried under Article 81 of the Penal for the arrest of Criminal Court Chief Judge Abdulla Mohamed.

Article 81 of the Penal Code states that it is a criminal offence for any employee of the state to use the constitutional powers to arrest vested on him to deliberately arrest a person who has not committed a crime. The article further details that the maximum penalty for this offence is either a jail sentence or banishment for a period of up to three years, or a fine of up to MVR 2000 (US$130).

Home Minister Mohamed Jameel Ahmed was not responding to calls at the time of press.

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Supreme Court overrules Parliament’s decision to invalidate Hulhumale Magistrate Court

The Supreme Court has issued an order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.

Former President Mohamed Nasheed is currently facing charges in the Hulhumale Court for the detention of Chief Judge Abdulla Mohamed during the final days of his administration.

The oversight committee this week declared the court illegitimate, claiming it lacked “constitutional and legal grounds” to support its legitimacy.

In an order, (No. 2012/SC-SJ/05) issued on November 28, 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.

Though the order did not specifically mention the decision by the parliamentary oversight committee, it was issued shortly after the committee’s decision regarding the Hulhumale’ court.

Last Tuesday, the Independent Institutions Oversight Committee,following an issue presented by three sitting MPs, declared there were no “legal grounds” to accept the setting up and functioning of Hulhumale’ Magistrate Court based on the powers vested to the Judicial Service Commission (JSC) under article 159 of the constitution and article 21 of the Judicial Service Commission Act, and based on the articles 53 and 63 of Judicature Act.

The members of the committee claimed there was a lack of any legal reasoning to recommence the works of the concerned court after its work had been suspended for five months after the Judicature Act came to force.

Article 63 of the Judicature Act states: “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where 4 divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”

However, the Independent Institutions Oversight Committee in its explanation of the decision stated that the exception of Male’ in the stated article included Hulhumale’, which for administrative purposes is considered a ward of the capital.  The committee argued Hulhumale’ could not be deemed as a separate island to establish a magistrate court.

No one should meddle with the courts: Supreme Court

In quashing the parliamentary committee’s decision, the Supreme Court stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

Not meddling with business of courts – Deputy Chair of Independent Institutions Oversight Committee

Speaking to Minivan News, Deputy Chair of Independent Institutions Oversight Committee MP Ahmed Sameer said the committee was not meddling with the business of the courts, but addressing a constitutional violation carried out by the JSC in establishing an illegitimate court.

Sameer – who is also the deputy leader of Maldivian Democratic Party (MDP) parliamentary group – stated that it was a responsibility of the parliament to hold independent institutions and other bodies of the state accountable, and that his committee was mandated with the scrutiny of actions of independent institutions.

“Initially, when we summoned the JSC to the committee, they refused to talk to us or provide any information to the committee. However, from the documents that the committee received later, we found out that the Hulhumale’ Magistrate Court was formed by the JSC which is a violation of the constitution and the laws,” he said.

Sameer argued that the constitution explicitly states that courts can only be formed by legislation and not “through a vote in the JSC”.

“The committee’s decision was made based on the findings of the inquiry. We have all the documents including the agendas of the meeting and the meeting minutes. It is clear that the JSC had formed and an act that is beyond the powers vested to the commission in the constitution and the JSC Act,” he added.

Sameer claimed that the decision by the committee was binding and no authority can overrule the decision.

“With the committee’s decision, we do not plan to give the budget to the court and works are underway to in drafting an amendment that would specifically state the courts that would be formed under the law,” he said.

Sameer added that the parliament will not tolerate any decision that undermines its constitutional powers and responsibilities.

Arrest of Judge Abdulla

The issue concerning Hulhumale Magistrate Court’s legitimacy came to limelight following the Prosecutor General (PG) filing criminal charges against former President Mohamed Nasheed for the detention of Chief Judge of Criminal Court Abdulla Mohamed in January  2012.

Criminal Court Chief Judge Abdulla Mohamed was arrested by the Maldives National Defence Force (MNDF) on the evening of Monday, January 16, in compliance with a police request.

The judge’s whereabouts were not revealed until January 18, and the MNDF acknowledged receipt but did not reply to Supreme Court orders to release the judge.

Then Home Minister Hassan Afeef subsequently accused the judge of “taking the entire criminal justice system in his fist”, listing 14 cases of obstruction of police duty including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

Nasheed’s government subsequently requested assistance from the international community to reform the judiciary. Observing that judicial reform “really should come from the JSC”, Foreign Minister at the time, Ahmed Naseemm said that the JSC’s shortcomings “are now an issue of national security.”

The judicial crisis triggered 22 days of continuous protests led by senior opposition figures and those loyal to former President Maumoon Abdul Gayyoom, which eventually led to the controversial toppling of Nasheed’s administration on February 7.

The PG’s Office filed charges based on the investigations by Human Rights Commission of Maldives (HRCM) on the arrest, which concluded that Nasheed was the “highest authority liable” for the military-led detention of Criminal Court Chief Judge Abdulla Mohamed.

Along with Nasheed, the report concluded that the former president’s Defence Minister, Tholhath Ibrahim Kaleyfaanu, was a second key figure responsible with others including Chief of Defence Force Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad.

Charges were also filed against all of those which the HRCM investigation report identified as responsible for the arrest in Hulhumale’ Magistrate Court.

Hulhumale Magistrate Court and legitimacy

During the first hearing of the trial, ex-president Nasheed’s lawyers took procedural points challenging the legitimacy of the court, but were rejected without justification. Nasheed’s legal team’s appeal challenging the legitimacy was initially rejected by the High Court claiming that it cannot look into a matter that was already being heard in Supreme Court.

However, the High Court later granted Nasheed an injunction temporarily suspending the trial of the former president at the contested Hulhumale’ Magistrate Court.  The injunction is pending a ruling on procedural points raised by the former President’s legal team.

Following the injunction, Hulhumale’ Magistrate Court has announced that it had suspended all ongoing cases.

In its announcement, the Hulhumale’ Magistrate Court said it has suspended proceedings on cases involving marriage, divorce, guardianship, family matters, property lawsuits, civil cases, criminal cases involving extension of detention periods as well as other matters that could be affected by the questions raised over its legal status.

Following the High Court’s injunction granted to Nasheed, the JSC filed a case in Supreme Court asking it to look into the legitimacy of the court. The Supreme Court then instructed the High Court to halt its hearings on the appeal.

Supreme Court had previously ordered the Civil Court to send over all files and documents on a case submitted by a lawyer, Ismail Visham, over a year ago challenging the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court on November 19, held the first hearing of the case concerning the legitimacy of Hulhumale’ Magistrate Court and Ismail Visham was decided as the respondent of the case.

Nasheed’s legal team also intervened in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is heard by Hulhumale’ Magistrate Court.

Meanwhile, several prominent figures have raised doubts over the legitimacy of Hulhumale Magistrate Court.

Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, in an article in his personal blog stated – “The [Hulhumale’ court] was created by the Judicial Services Commission (JSC) without authority derived from law. Therefore the validity of any order or judgement issued by this court is questionable, and the constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds.”

Ismail further writes that no court has the power, under any law, to issue a travel ban on a person without ever summoning them to court.

He also stated that there was ample to room to believe that the courts were acting with a bias against Nasheed, owing to a number of other politicians and business tycoons who were repeatedly defying court orders and summons.

Prominent lawyer and Independent MP Mohamed ‘Kutti’ Nasheed – who is also the chair of Parliament’s Independent Oversight Committee – in his personal blog also echoed similar remarks explaining that a magistrate court could not legally be established at Hulhumale’.

However following the Supreme Court’s order, Nasheed told Minivan News said that he “wished to give a considered view soon” but refused to reveal a specific date by which he would respond.

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