Criminal Court Chief Judge Abdulla Mohamed ruled tonight that police arrested Gassan Maumoon in violation of the constitution and a Supreme Court precedent establishing criminal justice procedures after his lawyers filed an application for a writ of ‘habeas corpus’, or release from unlawful detention.
After the case was filed this afternoon, the court issued an order to the police to bring Gassan to the court before 4:00pm today.
Gassan’s legal team, including former Attorney General Azima Shukoor and former President Maumoon Abdul Gayoom’s lawyer Mohamed Waheed Ibrahim ‘Wadde’, argued that Gassan’s arrest after being summoned to police headquarters at 10:00am was in violation of article 46 of the constitution.
Article 46 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.”
Gassan’s legal team also claimed procedural violations in the arrest based on the precedent established by a Supreme Court ruling (page 11 point 11) in July 2010 overturning a High Court ruling extending the arrest of MPs Abdulla Yameen and Gasim Ibrahim.
Azima argued that the precedent established that the burden of proof falls on the state before arresting suspects.
Noting that police did not seek a court order for Gassan’s arrest, which was the “established norm,” Azima said the circumstances of his arrest did not fall under exceptions provided for in the constitution where police could arrest suspects without an arrest warrant.
Gassan’s lawyers noted that he was arrested four days after the incident took place.
In the absence of a Criminal Procedures Act, said Azima, the precedent should be followed in interpreting article 46 of the constitution.
Moreover, she added, Gassan was arrested through “deception” as “my client did not present himself to police to be arrested.”
Gassan was first summoned for questioning last Saturday concerning disturbances outside his residence Endherimaage on Thursday during a protest by the ruling Maldivian Democratic Party (MDP).
The protesters were calling for judicial reform, alleging that the judiciary and the Judicial Services Commission (JSC) were subject to political manipulation by the opposition and members of the former government.
During the protest a 17-year-old boy was struck on the head with a wooden plank allegedly thrown from Endherimaage while protesters led by MDP MPs, councillors and senior members were outside the former President’s residence.
Responding to Azima’s arguments at court today, Police Superintendent Mohamed Jinah insisted that the arrest was lawful as police had reasonable grounds to suspect Gassan had committed a crime and were prepared to submit early evidence.
If Gassan’s arrest was unlawful, said Jinah, “everyone police have arrested and brought before the court [for extension of detention] was arrested in violation of the constitution.”
Jinah suggested that Gassan’s legal team was “concerned that we might present evidence” and that the legal argument bore “no weight.”
The top police attorney submitted documents containing early evidence for the judge’s considering, including a medical report of the injuries sustained by the 17-year-old, photos, witness statements and “evidence we collected from the scene.”
The evidence was submitted despite the hearing being held on the case filed by Gassan’s lawyers contesting the legality of his arrest. Police were due to bring the former President’s son before court at 7:00pm to determine if his detention could be extended.
Jinah said police had reason to believe the investigation could be compromised if Gassan was released from custody.
Although the early evidence was not shared with the defence counsels, Azima argued that witness statements were invalid as they would have come from “people participating in an unlawful assembly.”
When Azima contended that the police claims conflicted with media reports on Thursday’s incidents, Jinah noted that “different media reported the same incident in very different ways.”
Gassan’s lawyers meanwhile submitted as counter-evidence photographs and video footage showing an MDP protester carrying a wooden plank. The footage was first aired on private broadcaster DhiTV challenging the MDP’s contention that the wooden plank was hurled from a second floor balcony of Maafanu Endherigas.
Azima argued that the nature of the evidence submitted was not enough “to establish a causal link between the suspect and the crime.”
When Gassan’s lawyer Maumoon Hameed criticised police for not examining “publicly available video footage,” Jinah said police had requested video footage from media outlets as well as footage caught on private security cameras.
Supporters of the former President’s newly-formed Progressive Party of Maldives (PPM) were camped outside the Justice building for the duration of the hearing carrying “Free Gassan” placards and celebrated with loud cheering when Gassan emerged from court.
Later in the day, activists of the ruling party gathered to protest outside the Supreme Court behind police lines. A heavy police presence kept the rival protesters at opposite ends of the court building.