The Human Rights Commission of the Maldives (HRCM) has concluded former President Mohamed 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 for the decision to detain Judge Abdulla on January 16.
The commission stated that the judge was not physically harmed during the 22-day detention at the military training island of Girifushi. However, the HRCM did claim that the government had “violated his human dignity” and made attempts to manipulate the judge through a psychologist who visited him at the facility where he was detained.
These alleged attempts at manipulation were said to include efforts to remove the judge from his senior position, as well as forcing him to leave the country, the commission’s findings stated.
“The investigation reveals the highest authority liable for the arrest and detention of Judge Abdulla at Girifushi, as well as depriving him of fundamental constitutional rights, is former President Mohamed Nasheed. Under him was the former Minister of Defence and National Security Tholhath Ibrahim Kaleyfaanu who gave orders to the Maldives National Defence Force (MNDF),” the HRCM added.
“Furthermore, as this operation was carried out by the MNDF, the [commission] believes that the Chief of Defence Force, Moosa Ali Jaleel should take responsibility. Those who issued unconstitutional orders and those who obeyed the orders must also share responsibility on various levels,” the commission added.
The commission’s findings released on Tuesday (August 21), concluded that Judge Abdulla’s arrest was a clear violation of both the country’s laws and its constitution. The report also stated that judge’s human rights and fundamental freedoms, guaranteed under international law, were also denied.
HRCM explained that its investigation had found that the pair were both behind the “unlawful orders” to approve the judge’s arrest, which was a violation of article 46 of the Constitution, particularly violation of Article 12 clause (a) of the Judges Act.
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 committing 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 sought by the prosecutor general.
However, the commission observed that the warrant was not obtained. Additionally, orders to release the judge by the Supreme Court, High Court, the country’s lower courts and the prosecutor general were ignored.
Both Nasheed and Tholhath, alongside former Chief of Defence Force Major General Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad are already facing charges for their alleged role in detaining Judge Abdulla in January.
The charges include a 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).”
These charges were filed by the Prosecutor General’s Office in July, based on the findings of HRCM investigation, which were not publicly released at the time.
The judge was arrested by the military on request of police after he blocked a summons to present himself to the police headquarters for questioning and later opened the court outside normal hours to order the immediate release of current Home Minister and Deputy Leader of the Dhivehi Quamee Party Dr Mohamed Jameel Ahmed. Jameel was arrested after the President’s Office requested an investigation into so-called “slanderous” allegations he made that the government was working under the influence of “Jews and Christian priests” to weaken Islam in the Maldives.
The government contended that the judge was a “threat to national security” after he lodged an appeal at High Court to cancel police summons, which granted an injunction until it reached a verdict on the appeal.
The Nasheed administration accused the judge of political bias, obstructing police, stalling cases, having links with organised 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.
In August 2010, the judge was publicly accused by the police of “obstructing high-profile corruption cases.”
However, the commission’s report concluded that its investigation proved that Judge Abdulla was not a threat to national security, on the grounds that no meeting of the National Security Council was held at the time.
The Commission also observed that its requests and attempts to visit Judge Abdullah were unfulfilled by the MNDF and government. Conversely, it deemed the arrest as an attempt to “influence” his role as Criminal Court chief judge.
The HRCM report also identified what it called breaches of multiple rights and freedoms of Judge Abdullah during the detention process. These were said to include; the right to be treated equal before law and right to the equal protection and benefit [article 20]; right to life, liberty and security [article 21]; freedom to travel or move within and outside the country [article 41]; Procedurally Fair and and lawful administrative action [article 43]; the right to be to be informed immediately of the reasons for detention and to be brought within24 hours before a Judge [article 48(a) and (d) ]; right to the assistance of legal counsel [article 53] and no subjection to cruel, inhumane or degrading treatment or punishment, or to torture under [article 54].
Furthermore, it noted that the arrest of the Judge contravened section 8 of the Universal Declaration of Human Rights which states: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
Furthermore, violations were said to include, the right he “not be subjected to arbitrary arrest, detention or exile” [section 9] and similarly not being subjected to arbitrary interference with his privacy, family, home or correspondence, nor to suffer attacks upon a person’s honour and reputation. Everyone has the right to the protection of the law against such interference or attacks [section 12].
HRCM has also observed that “anyone who is deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” under section 9(d) of the International Covenant on Civil and Political Rights and the same declaration, section 10(a) states that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
It also states that the “Declaration on the Protection of all Persons from Enforced Disappearance” prohibits the arrest, detention or abduction of a person against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.
“Therefore, the [arrest of Judge Abdullah] was carried out in contravention of the aforementioned rights and freedoms guaranteed under the international declarations.” the HRCM concluded.