In relation to the case against President Nasheed, charged under Article 81 of the Penal Code, which was sent to the Hulhumale’ Magistrate Court by the Prosecutor General:
1. Article 141 (a) of the Constitution of the Maldives states that the judicial power is vested in the Supreme Court, High Court and lower courts established by law. The two categories of lower tier courts (Superior Courts and Magistrate Courts) have been established via Article 53 (b) and Article 62 of the Judicature Act of the Maldives (Law Number 22/2010). In light of this it is clear that the Hulhumale’ Magistrate Court was created contrary to Article 141 (a) of the Constitution of the Maldives and Article 53 (b) and Article 62 of the Judicature Act of the Maldives (Law Number 22/2010). Therefore the Hulhumale’ Magistrate Court cannot be considered a legitimate court and there is procedural lacuna in terms of contesting its legitimacy. In addition, a case has been filed to the Supreme Court to determine its legality or jurisdiction, and the Supreme Court has not yet issued a ruling on this matter. Therefore to hold President Nasheed’s case in an unconstitutional court is a violation of Article 42 (a) of the Constitution which guarantees all citizens “the right to a fair trial.”
2. The procedures by which Magistrates are allocated to Magistrate Courts are outlined in Article 67 of the Judicature Act (Law Number 22/2010.) With regard to the case which the Prosecutor General filed against President Nasheed, a “Magistrates Panel” has been appointed to oversee the case. The Magistrates have been appointed contrary to the procedures stipulated in the aforementioned Act. The panel that was appointed by the Judicial Services Commission did not consist of any Magistrates that are currently serving in the Hulhumale’ Magistrate Court bench. It is common practice in other open democracies that if such a panel were to be appointed, it should consist of justices serving in the court which the case has been lodged at.
3. Article 48 of the Judges Act (Law Number 13/2010) clearly states the instances by which a Magistrate can temporarily oversee a case from a court other than the one he has been appointed to. Such instances are as follows; if the court to which the justice has been appointed is unable to appropriately conduct its work, or if the court has issues pertaining to providing its services, or if the justices working at the court have been barred from attending work, or if there are any other instances where the functioning of the court is delayed or impeded. It is important to highlight that the justices and the court itself has not been subject to any of these instances stipulated in the Judges Act 2010. Therefore it has to be noted that the appointment of justices from other courts to the Magistrate Panel has been done so extra-judicially and not in accordance with due procedures outlined under the Judges Act 2010.
4. With regard to the justices appointed to the Magistrate Panel, one of the three justices from the panel is currently being investigated by the Judicial Services Commission on allegations of sexual misconduct and corruption. Therefore it is unlikely that a panel consisting of a justice under investigation by the judicial watchdog can conduct an impartial and unbiased trial.
5. The charge cited by the Prosecutor General against President Nasheed can be found under Article 81 of the Penal Code. The case in question is not considered a serious criminal offense; furthermore, the maximum penalty prescribed for the offense does not exceed a three year jail sentence. The common practice in overseeing such cases thus far has been that when the case is lodged at a particular court a justice from the said court would preside over the case. Therefore the appointment of a three justice panel to oversee President Nasheed’s case is not in accordance with common practice, nor has it ever been done so.
6. Article 17 of the Constitution of the Maldives states that every citizen is entitled to their rights and freedoms without any discrimination regardless of their political belief. The Prosecutor General filed the case against President Nasheed invoking Article 81 of the Penal Code. There has been no previous instance of a Magistrates Panel being convened to prosecute any case charged under Article 81 of the Penal Code. Therefore, appointing a Magistrates Panel to prosecute this case, appointing Magistrates from different jurisdictions, including one of whom is currently under investigation by the Judicial Services Commission, is a direct violation of Article 17 of the Constitution of the Maldives and a discriminatory act against President Nasheed.
7. Hulhumale Magistrate Court has issued a “notice for the accused” which states that the case against President Nasheed has been received and filed by the court. It also stated that before the case comes to an end; President Nasheed would not be allowed to leave Male’ City for any reason without express permission from the said court. This notice has been issued extra-judicially, before the case has been scheduled or formally presented to the court by a State prosecutor.
8. Article 223(k) of the Constitution and Article 15(k) of the Prosecutor General Act (Law Number 9/2008) states that it is the Prosecutor General’s responsibility to uphold the constitutional order, the law and the rights and freedoms of all citizens. The Prosecutor General’s actions in filing the case to an unconstitutional and unlawful court established without following due process, unconventionally presided by a Magistrates Panel infringe upon the rights afforded to President Nasheed under the Constitution. Therefore in order for the Prosecutor General to fulfill his constitutional mandate, he must guarantee that all proceedings of the case against President Nasheed are conducted in accordance with relevant laws and regulations.
9. The Human Rights Commission and the Ministry of Gender, Family and Human Rights, which are constitutionally mandated to ensure that human rights of all citizens are upheld, have so far not expressed any concern in relation to President Nasheed’s case nor have they questioned the legality of the extra-judicial procedures by which it is being facilitated.
The right to free and fair trial guaranteed to all citizens by the Constitution. Such a trial must be conducted in an independent and non-partisan court of law. However, considering the aforementioned irregularities, the Office of President Nasheed expresses concern over the fact that President Nasheed may not be afforded the right to a free and fair trial.
26 September 2012