Tag: supreme court

Challenges faced by judiciary would be resolved if JSC carried out its duties properly: Chief Justice

Chief Justice Ahmed Faiz Hussain has accused the Judicial Service Commission (JSC) of being inept, stating that challenges faced by the country’s judiciary would have been resolved had the judicial watchdog undertaken its duties “properly”.

The Chief Justice made the remark speaking to media after concluding a ceremony held on Monday to open a new building for the Drug Court.

Hussain acknowledged that he could not say that every piece of work carried out by JSC was not done properly since he was not a member of the JSC himself.

“The JSC is an institution formed under the constitution to serve the judiciary. They have a huge responsibility to deal with issues surrounding the judges, so if the JSC carries out its responsibilities, I would say the challenges faced by the judiciary would have been resolved through that institution,” the Chief Justice said.

Hussain also said that he had on several forums highlighted that changes need to be brought to the current mechanism of JSC,noting that the local judicial watchdog had “differences” compared to similar institutions in other countries.

“But still, I believe even under the current mechanism of JSC, and without needing to bring modifications to it, some changes can still be brought to the works it carries out,” he added.

During the media briefing, the Chief justice also spoke about the ongoing case of Hulhumale’ Magistrate Court, the legitimacy of which is being contested in the courts by the former President Mohamed Nasheed’s legal team.

He said that the case concerning the legitimacy of the Hulhumale Magistrate Court currently in Supreme Court had not been addressed, because the JSC had not filed the case.

“When a case was filed in Civil Court contesting the legitimacy of Hulhumale Magistrate Court, the  JSC sent a letter to [Supreme Court] arguing that the Civil Court did not have the jurisdiction to look into the case. We then asked the JSC to file a case as per the procedure and they only filed the case just a few days ago,” he explained.

Following the filing of the case, the Supreme Court took over the case from the Civil Court.

The Chief Justice added that the Supreme Court will be considering the case as a “high priority” case.

Spokesperson for the Department of Judicial Administration (DJA), Latheefa Gasim, was not responding to calls at time of press.

Court saga

Earlier in October, former President Mohamed Nasheed’s legal team’s challenged the legitimacy of the Hulhumale Magistrate Court, and its summoning of Nasheed in connection to the detention of Chief Judge of Criminal Court.

The High Court at the time stated that the case had previously been looked at by the Supreme Court, there the court could not proceed with the case.

However earlier this month the High Court granted an injunction temporarily suspending the trial of former President after his legal team appealed a ruling on procedural points by the Hulhumale’ Magistrate Court in the trial.

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

Following the proceedings of the case, Hulhumale’ Magistrate Court announced that it had suspended all ongoing cases following an injunction issued by the High Court on Sunday, including Nasheed’s trial.

The Hulhumale Magistrate Court said in its announcement that it had 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.

Two days later, the Supreme Court ordered High Court to halt its proceedings on the appeal by Nasheed’s legal team, and ordered the Hulhumale Magistrate Court to resume its proceedings.

Question of legitimacy

Writing in his personal blog on the issue, lawyer and Independent MP Mohamed ‘Kutti’ Nasheed explained that a magistrate court could not legally be established at Hulhumale’.

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’ – 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, he argued.

Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, has also published an article on his personal blog stating the reasons why the Hulhumale’ Magistrate Court cannot be considered a legal entity.

“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.

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Hulhumale’ Magistrate Court suspends all cases

The Hulhumale’ Magistrate Court has announced that it has suspended all ongoing cases following an injunction issued by the High Court on Sunday halting the trial of former President Mohamed Nasheed.

The High Court granted the temporary injunction or stay of the former President’s trial pending a ruling on procedural points raised by Nasheed’s legal team, which included the legitimacy of the Hulhumale’ Magistrate Court.

In its announcement on Monday, 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.

Meanwhile, at Sunday’s hearing of Nasheed’s appeal at the High Court, the Judicial Service Commission (JSC) revealed that it had filed a case at the Supreme Court to determine the legitimacy of the court.

Writing in his personal blog last month, Independent MP Mohamed ‘Kutti’ Nasheed explained that a magistrate court could not legally be established at Hulhumale’.

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’ – 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.

Meanwhile, local media reported yesterday (November 5) that the Supreme Court 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 had issued a writ of mandamus ordering the lower court to suspend its hearings and had taken over the case. The apex court had however not conducted any hearings on the case.

A court official told local media that a hearing on the case of the Hulhumale’ Magistrate Court’s legal status has not been scheduled.

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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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Bill submitted to ban import of pork and alcohol

Maldivian Democratic Party (MDP) MP Nazim Rashad has submitted a bill to the Majlis calling for the prohibition of pork and alcohol imports to the country.

When presenting the bill, Nazim argued that the import of these products violates article 10(b) of the constitution which states that “no law contrary to any tenet of Islam shall be enacted in the Maldives.”

“We often hear rumours that people have alcohol at home in their fridge, available any time. We’ve heard that kids take alcohol to school to drink during their break. The issue is more serious than we think, it should not be ignored,” Nazim told the house.

Consumption of intoxicants or pork products are prohibited under Islamic law, although these products are available to foreign tourists in the country’s resorts.

When in charge, the MDP government announced it was considering banning pork and alcohol product in response to the December 23 coalition‘s campaign to protect Islam.

After being asked in January for a consultative opinion over whether the Maldives could import pork and alcohol without violating the nation’s Shariah-based constitution, the Supreme Court unanimously rejected the case on the grounds that the matter did not need to be addressed at the Supreme Court level.

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MVR 500,000 paid to Gayoom’s parliament appointees

The state has paid approximately MVR 500,000 (US$32,425) each as compensation to eight MPs appointed to parliament by former President Maumoon Abdul Gayoom, following a Supreme Court ruling in March that their removal was unconstitutional.

The Supreme Court ruled on March 13 that the removal of the eight presidential appointees in late 2008 by incoming President Mohamed Nasheed – who replaced the eight with his own appointees – was unconstitutional and ordered the state to compensate the MPs for salaries and allowances due for the remainder of the last parliamentary session of the 16th parliament.

The Supreme Court ruling had overruled judgments by the Civil Court and High Court.

Local daily Haveeru reported yesterday that one MP had been paid MVR 407,000 (US$26,394) so far. The former MP, who wished to remain anonymous, was quoted as saying that the “Finance [Ministry] told some of the MPs that the amounts cannot be paid now due to the financial constraints of the state.”

“As far as I know, the state will pay them over a period,” the anonymous MP added.

The case was filed by former President Gayoom’s appointees Rozaina Adam and Ahmed Mahloof. While both were elected to the 17th parliament on a Dhivehi Rayyithunge Party (DRP) ticket, MP Mahloof left the DRP to join former President Gayoom’s Progressive Party of Maldives (PPM).

The case reached the Supreme Court one and a half years ago after the Civil Court and High Court ruled that the Nasheed administration had the legal authority to dismiss Gayoom appointees.

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Supreme Court precedent in Nexbis case makes ACC meaningless: ACC President

The Supreme Court of the Maldives last Sunday invalidated the a High Court injunction blocking the implementation of a border control system (BCS) in Ibrahim Nasir International Airport by Malaysia-based security solutions firm Nexbis.

The seven member bench of the Supreme Court invalidated the injunction, stating that “the subject of the injunction was not a subject where an injunction can be issued and thereby the bench of the Supreme Court unanimously rule that High Court order is invalid”.

The decisive ruling ends a long-running legal battle involving Department of Immigration, the Anti-Corruption Commission (ACC) and Nexbis. The ACC had alleged there was corruption in the bidding process.

Following the decision, Controller of Immigration Dr Mohamed Ali stated to local media that the system would soon be fully installed.

“A team of Nexbis staff will be coming over by the end of this week. A large portion of the system has already been installed. I hope we would be able to begin using the system very soon,” the controller said.

He reiterated that the immigration department currently uses a very basic application which has many issues and would also expire by the end of the year.

The new system he said would alleviate the existing problem of long queues and other issues, as well as increase the efficiency of the process.

He further said that when they when the system is implemented and begins functioning, biometrics from all departures and arrivals will be recorded. Afterward, “no one will dare to enter the Maldives illegally.”

“No one can stop the project,” he concluded.

State of limbo

Meanwhile, ACC President Hassan Luthfee has expressed concern and frustration over the Supreme Court decision stating that it has put the commission in a state of limbo deprived it of purpose.

“If this institution is simply an investigative body, then there is no purpose for our presence,” he said. “Even the police investigate cases, don’t they? So it is more cost effective for this state to have only the police to investigate cases instead of the ACC,” Luthfee said.

Referring to the ruling, Luthfee said that the ruling meant that the ACC had no power to prevent corruption, even if it was carried out on a large scale.

“In other countries, Anti Corruption Commissions have the powers of investigation, prevention and creating awareness. If an institution responsible for fighting corruption does not have these powers then it is useless,” he said.

Officials investigated were invoking their right to remain silent, Luthfee said, and refusing to take any responsibility.

“When an official chooses to remain silent, what is the purpose of sending such a case to the Prosecutor General? Who will take the responsibility for the damages caused by such actions?” Luthfee questioned.

He added that even if a local island council or a school engages in a activity that involves in corruption, the Supreme Court precedent meant there was nothing that the ACC could do.

“This is just a simple example. To be frank this is the size of the ACC. The Supreme Court should be a court that should assist the independent institutions formed within the constitutional framework of this country,” he added.

Nexbis and ACC at loggerheads

The border control system at Ibrahim Nasir International Airport has been subjected to several allegations of corruption linked to former Controller of Immigration Ilyas Hussain – brother in law of current President Mohamed Waheed Hassan.

Following the presidential elections of 2008, then President Mohamed Nasheed gave Ilyas Hussain the position of Controller of Immigration as a part of coalition agreement with Waheed’s party, at the time Nasheed’s Vice President

However, when the Nexbis case came to light, former President Nasheed removed Ilyas Hussain from the position and put him as the head of the Disaster Management Centre, replacing him with Abdulla Shahid.

Shahid was a vocal opponent of the Nexbis system, alleging that the terms agreed with the company would deprive the Immigration department of significant revenue for comparatively little return.

The former controller at the time expressed concern over both the cost and necessity of the project, calculating that as tourist arrivals continued to grow Nexbis would earn US$200 million in revenue over the project’s 20-year lifespan.

Comparing Nexbis’ earnings to the government’s estimated revenue from the deal of US$10 million, Shahid suggested the government instead maximise its income by operating a system given by a donor country.

“Border control is not something we are unable to comprehend – it is a normal thing all over the world,” Shahid told Minivan News at the time. “There is no stated cost of the equipment Nexbis is installing – we don’t know how much it is costing to install, only how much we have to pay. We need to get everything out in the open.”

Following the controversial transfer of power on February 7, President Waheed returned Ilyas Ibrahim to his former position as the controller of Immigration.

However as the corruption investigation progressed, President Waheed removed Ilyas Hussain from Immigration and installed him as Minister of State for Defence and National Security, Chief of Staff of the President’s Office Dr Mohamed Ali replaced him as Controller of Immigration.

Nexbis and ACC came to loggerheads the day after signing ceremony between Immigration Controller Ilyas Hussein Ibrahim and Nexbis CEO Johan Yong. The ACC opposed and sought and injunction after stating it had received “a serious complaint” regarding the “technical details” of the bid.

In November 2010, nearly a month after the signing of the agreement, shares of Nexbis dropped 6.3 percent on the back of rumours that the project had been suspended.

The speculations lead to Nexbis announcing that it would seek legal redress against parties in the Maldives, claiming that speculation over corruption was “politically motivated” in nature and had “wrought irreparable damage to Nexbis’ reputation and brand name.”

In August 2011 the Malaysian based mobile security system vendor on the local media threatened to take legal action over the stalled border agreement with the government.

In a letter to then Immigration Controller Abdulla Shahid on August 19, Nexbis complained that it had not received a reply from the Immigration Department to its inquiries after the cabinet decided to proceed with the project.

Nexbis stated in its letter that the company had spent “millions of dollars” to purchase equipment and had even paid import duties to the government, noting that the continuing delays were resulting in financial losses.

ACC filed a court case against the Rf500 million (US$39 million) Nexbis system in November 2011, two days after cabinet decided to resume the project.

The ACC in December also forwarded corruption cases against former Immigraiton Controller Ilyas Hussain Ibrahim and Director General of Finance Ministry, Saamee Ageel to the Prosecutor General’s Office (PG), claiming the pair had abused their authority for undue financial gain in awarding the Nexbis project.

On January 2012, the Civil Court ruled that ACC did not have the legal authority to order the Department of Immigration and Emigration to terminate the border control system contracted to Nexbis in November 2010.

Judge Ali Rasheed ruled that the ACC Act clearly allowed the commission to investigate corruption cases, but did not give ACC legal authority to issue an order which can annul a formal agreement signed between one or more parties.

He asserted that it was “unfair” to the contractors if ACC could annul an agreement without the contractors’ say, adding that such a decision violated the protection granted to the contractors under the Maldives Law of Contract.

Nexbis on February 2012, a week after the controversial transfer of power, filed a lawsuit at the Civil Court seeking Rf 669 million (US$43 million) in damages from former Immigration Controller Abdulla Shahid.

According to the lawsuit, Nexbis alleged Shahid refused to proceed with the project despite court approval and spread false information regarding the agreement to the media, tarnishing Nexbis’ global reputation.

Meanwhile, the Immigration department decided to proceed with the stalled border control system.

On April 2012, the ACC appealed the Civil Court’s ruling in the High Court.

The High Court favoured the ACC and issued an injunction, temporarily halting the roll out of the border control system pending the outcome of the ACC’s appeal against a Civil Court ruling that the ACC did not have the authority to halt the project.

Nexbis then filed an appeal at the Supreme Court against the High Court injunction.

The firm had earlier in May stated that despite the legal complications surrounding the deal, the border control project had completed its first phase, with Rf 10 million’s (US$650,000) worth of installation work having been finished.

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Decentralisation Act not unconstitutional, Supreme Court rules

The Supreme Court ruled on Thursday that provisions of the Decentralisation Act were not in conflict with the constitution.

In March 2011, former State Minister for Home Affairs Mohamed ‘Monaza’ Naeem filed a case at the apex court arguing that some provisions of the Act contradicted the unitary nature of the Maldivian state as laid out in the constitution, and requested the conflicting articles to be struck down.

Naeem had argued that the Local Government Authority (LGA) created by the Decentralisation Act was not answerable to any government minister while article 140 of the constitution states that, “A member of the cabinet shall be given responsibility for each authority or institute established by the government or the People’s Majlis, except for independent institutions specified in this constitution or established pursuant law. Such member of the cabinet must take responsibility for the operation of such authority or institution and must be accountable for it.”

The Supreme Court bench that heard the case ruled unanimously that the LGA was not unconstitutional as it was not necessary for a minister to be the administrative head of such an authority or office.

The Justices further noted that article 140 did not envision a cabinet minister to be responsible for elected councils.

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Nexbis appeals High Court injunction halting border control project

Malaysia-based security solutions firm Nexbis has filed an appeal at the Supreme Court against a High Court injunction ordering a halt to the border control system, reports newspaper Haveeru.

The High Court issued an injunction after the Anti-Corruption Commission (ACC) appealed a Civil Court judgment that ruled that the commission did not have the legal authority to order the Department of Immigration and Emigration to halt the border control project.

The High Court ordered a halt to the project pending a verdict on the appeal by the ACC.

Nexbis lawyer Ismail Visham told the local daily today that the company decided to appeal the injunction as the High Court case remained stalled, causing delays to the project.

The Supreme Court has meanwhile scheduled a hearing for next Wednesday. The Supreme Court had earlier issued a writ of mandamus overturning the first High Court injunction on the grounds that the High Court bench that heard the case was unlawful.

A reconvened High Court bench subsequently issued the injunction for a second time on July 16.

Following the Supreme Court intervention, Controller of Immigration and Emigration Dr Mohamed Ali has told Minivan News on July 11 that there was “no legal barrier” preventing the implementation of the border control system.

The High Court meanwhile ordered police to investigate claims made to the ACC that Chief Judge of the High Court Ahmed Shareef met officials from the company in Bangkok.

The dispute concerns the deployment of a border control system, specifically the installation of an electronic border gate system in Male’s Ibrahim Nasir International Airport (INIA), bringing technological upgrades such as facial recognition, fingerprint identification and e-gates to the Maldives.

The MVR500 million (US$39 million) deal had stalled after the ACC alleged corruption in the bidding process, leading to a ongoing series of high-profile court battles and delays that led the Malaysian firm to threaten legal action against the Maldivian government should it incur losses for the work already done on the project.

In May 2012, the project was brought to a standstill by the first High Court injunction and a raid on immigration offices by ACC staff. At the time the MVR10 million (US$650,000) first phase of the border control project had been completed, according to local media reports.

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Supreme Court denies giving advice to PG regarding Nasheed’s case

The Supreme Court of the Maldives has denied local media reports suggesting that it issued advice to the Prosecutor General (PG), following his decision to submit former President Mohamed Nasheed’s Criminal case to Hulhumale’ Magistrate Court.

The Supreme Court in an official statement stated it was a responsibility of the Prosecutor General to file criminal charges, but insisted the court did not give any advice regarding Nasheed’s case.

Following investigation by the Human Rights Commission of the Maldives (HRCM), Prosecutor General Ahmed Muizz has filed charges against Nasheed, former Defense Minister Tholhath Ibrahim Kaleyfaanu, former Chief of Defence Force Major General Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad for their alleged role in detaining Criminal Court Chief Justice Abdulla Mohamed in January.

Brigadier Ibrahim Mohamed Didi, key figure who defended the Maldives in the coup of 1988, has resigned from the Maldives National Defence Force (MNDF) over the matter.

“I’ve always respected the military uniform during my entire 32 years of service in the military. It’s my belief that I must be present in court after removing the uniform. I do not wish to face the court while wearing this uniform,” Didi was quoted as saying.

An official from the Prosecutor General’s office told local newspaper Haveeru that the decision to submit the case to Hulhumale’ Magistrate Court was because the case involved a Criminal Court Judge, and that there was a conflict of interest were the case were to be held in Criminal Court.

In normal practice, all criminal cases are referred to the Criminal Court of the Maldives, one of five superior courts of the country with High Court and Supreme Court above them in hierarchy.

In an earlier case prior to the arrest of Judge Abdulla in January 2012, concerning harassment the judge, the Prosecutor General stated that the Supreme Court had advised him to submit a criminal case to Hulhumale’ Magistrate Court.

Regarding the charges against Nasheed, neither the Prosecutor General nor the Supreme Court have stated that any advice was given by the Supreme Court – contrary to claims in local media.

A Supreme Court official said he did not wish to speak about the issue, and referred Minivan News to the Department Judicial Administrations (DJA).

However, officials from the DJA told Minvan News that their Spokesperson Latheefa Gasim had not reported to work and therefore could not provide any information.

The Case

Sources linked to the case earlier suggested that the charges levied against Nasheed related to violation of article 46 of the Constitution, particularly violation of Article 12 clause (a) of Judges Act (Act no 13/2010).

Article 44 of the Maldives Constitution states: “No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the authority of an arrest warrant issued by the court.”

Article 12 clause (a) of the Judges Act states that a judge can be arrested without a court warrant, but only if he is found indulging in a criminal act. The same article also states that if a judge comes under suspicion of committing a criminal act or being about to commit a criminal act, they can only be taken into custody with a court warrant obtained from a higher court than that of which the judge presently sits on.  This warrant has to be approved by the prosecutor general.

However the Prosecutor General is now levying charges of breach of article 81 of the Penal Code: “Arresting an innocent person intentionally and unlawfully by a state employee with the legal authority or power vested to him by his position is an offence. Punishment for a person guilty of this offence is imprisonment or banishment for 3 years or a fine of MVR 2000 (US$129.70).”

If Nasheed is found guilty of the charges, his candidacy for a presidential election could be invalidated, depending on the sentence he may receive as per the article 109(f) of the Constitution, which dictates the qualifications of a president.

Article 109(f) of the Constitution states: “[Candidate should] not have been convicted of a criminal offence and sentenced to a term of more than twelve months, unless a period of three years has elapsed since his release, or pardon for the offence for which he was sentenced;”

Detention of Judge Abdulla

The Chief Judge was detained by the military, after he had opened the court outside normal hours to order the immediate release of former Justice Minister and current Home Minister, Deputy leader of the Dhivehi Quamee Party (DQP) Dr Mohamed Jameel.

Jameel had been arrested on successive occasions for allegedly inciting religious hatred, after he published a pamphlet claiming that the government was working under the influence of “Jews and Christian priests” to weaken Islam in the Maldives. The President’s Office called for an investigation into the allegations, and requested Jameel provide evidence to back his claims.

In late 2011 Judge Abdulla was himself under investigation by the judicial watchdog for politically bias comments made to private broadcaster DhiTV.

The Judicial Services Commission (JSC) was due to release a report into Judge Abdulla’s ethical misconduct; however the judge approached the Civil Court and successfully filed an injunction against his further investigation by the judicial watchdog.

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

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 PG’s Office to obtain an arrest warrant from the High Court, the PG said at the time, claiming the MNDF and Nasheed’s administration “haven’t followed the procedures, and the authorities are in breach of the law. They could be charged with contempt of court.”

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

As protests escalated, elements of the police and military mutinied on February 7, alleging that Nasheed had given them “unlawful orders”.

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

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

Spokesperson of the Department of Judicial Administration, Latheefa Gasim, yesterday told local media that Hulhumale’ Magistrate Court has accepted the case and the hearings will be held after the first 10 days of Ramadan.

She also said that the Magistrate Court had space limitations and therefore they have been talking to the Housing Development Corporation (HDC) located in Hulhimale about holding the hearings in the reception hall of the HDC office.

“We have been negotiating with HDC to see if they could give us their reception hall to hold the hearings. After the HDC response, we will decide on a date to hold the hearings,” she said at the time.

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