Overview of the Maldivian Judiciary
The Maldives’ first, democratic Constitution was enacted in August 2008. The Constitution of 2008 enabled the country to make substantial progress in consolidating democracy and safeguarding the fundamental human rights of its citizens. The Maldives held its first free and fair, multi-party presidential election in November 2008.
After the 2008 election, the country made good progress in media freedoms, allowed space for a strong and vibrant civil society to grow, and established new social protection programmes, creating a social safety net for all Maldivians.
However, Maldives first democratically elected government was forced to step down on 7th February 2012. Since then, the Maldives political situation has been volatile. The legitimacy of the presidential elections held in 2013 is questionable as it was highly influenced and manipulated by the Supreme Court of the Maldives.
The highest authority of administering justice under the 1997 Constitution was the President. Ultimate judiciary authority was vested in the powers of the President. The President, through his Minister for Justice, appointed all judges, regulated all appeals, could remove judges at will and could grant pardons and commute sentences.
The new, 2008 Constitution aimed to create a clear separation of powers between the Judiciary, Executive and the Legislature and envisaged a modern, competent and independent judiciary in line with a modern democracy.
However, in practice very little has changed and the vast majority of the judges currently sitting on the bench today are the same people, with the same political loyalties, appointed by former President Gayoom before the enactment of the 2008 Constitution
Current Political Situation:
President Mohamed Nasheed is the Maldives’ first democratically elected president. He was elected into office in November 2008, bringing to an end the 30-year dictatorship of Maumoon Abdul Gayoom. He was forced to step down on 7th February 2012, before his term ended.
In the first round of presidential elections in 2013, President Nasheed received 45% of the vote to Yameen’s 25%. But the Supreme Court constantly meddled in the election – repeatedly annulling, cancelling and postponing the ballot in order to favour the candidacy of Yameen, Gayoom’s half-brother, who went on to assume the presidency.
On January 24 2015, Gasim Ibrahim, who polled third in the first round of the 2013 elections with 24% of the vote, and his party the JP, quit Yameen’s coalition government and sided with President Nasheed and his party, the MDP.
In quitting the governing coalition, Gasim cited President Yameen’s continued attempts to undermine the rule of law and institutions of democracy, including the sacking and harassment of members of the Elections Commission.
In recent weeks, President Yameen’s allies in parliament announced plans to put an upper age limit for those running for President, which would bar Gasim from competing in the 2018 presidential elections.
On February 10 2015, Yameen’s Defense Minister, Colonel (Ret.) Mohamed Nazim, was arrested following a power struggle within government. He has been taken to Dhoonidhoo Detention Centre and faces charges of treason.
Terrorism Charges Pressed by the State Against President Nasheed
- President Nasheed was charged with “unlawful arrest” of Judge Abdulla Mohamed in July 2012.
- The charges were politically motivated and targeted to disqualify him from the Presidential race in 2013.
- As result of political pressure and influence of the international community, the authorities postponed the trial until after the presidential election in 2013.
- Several procedural irregularities were identified by President Nasheed’s legal team and filed at the High Court over unconstitutional appointment of the judges panel at the Hulhumale’ Magistrate Court to preside over the criminal proceedings against President Nasheed.
- After 1 year and 9 months, the appeal filed by President Nasheed’s legal team contesting the legitimacy of the Hulhumale Magistrates’ Court judicial panel resumed on 3rd February 2015.
- A court summons was issued to President Nasheed to attend a “preliminary hearing” (A preliminary hearing can only be held prior to any hearings on the case) at the High Court on 28 January 2015. However, the legal team was later informed that it was an “administrative meeting.”
- In this administrative meeting, the judges at the High Court informed the legal team of a hearing scheduled for 3 February 2015, where President Nasheed’s lawyers would have to respond to the issues raised by the JSC and raise additional legal points with regard to the appeal.
- On 18 January 2015 the chair of the judicial watchdog, the Judicial Service Commission, resigned. Two days later Supreme Court Justice Ali Hameed is appointed chair of the judicial watchdog.
- The reason for the spontaneous urgency of President Nasheed’s criminal proceedings is to ensure the case is concluded before that the new Penal Code comes into effect in April 2015. The new Penal Code does not have a Section, which relates to ‘unlawful arrest’ by abusing power. If charges continue according to the old Penal Code, President Nasheed could be charged for a maximum of three years resulting in him being unable to contest for the 2018 Presidential Elections.
- Initially the charge was filed at the Hulhumale Magistrate Court, which President Nasheed’s legal team contested its jurisdiction and legality of the court itself. On this issue, the then Prosecutor General appealed to the High Court and ruled that the HMC was as a legitimate court. It also ruled that the appropriate court to hear this case was HMC as the criminal court judges were witnesses to the case and alleged victim is the chief judge at the criminal court.
- The charge against President Nasheed was withdrawn by the Prosecutor General and re-prosecuted for terrorism and was filed at the criminal court. This contradicts the previous ruling by the High Court on conflict of interest with in the Criminal Court. If found guilty, he will be liable for 10-15 years imprisonment. Since the initial charge was withdrawn and prosecuted on the same case with same witnesses proves these charges are politically motivated.
- Witness statements taken by the State include those of the Prosecutor General and two judges on the bench for this case. The same two judges are also requested by the defence as witnesses, and therefore pose the issue of conflict of interest and a need to recuse from the bench. The two judges presiding over the case were also present inside the house when Judge Abdulla Mohamed was brought under military supervision. At the time of first charge in April 2013, the current Prosecutor General was a judge at the Criminal Court. This seriously questions the independence and fairness of the proceedings.
- Contravention of article 48 of the Constitution, the arrest order: The accused was informed of terrorism charges pressed against him by the State only when he was served an arrest warrant at 2 pm on 22nd February 2015. The Constitution requires that an arrest/detention warrant must include in it where the detainee is held, under which authority (whether it is the Home Ministry – usually or someone else), the duration for which a person must be held under that warrant and when, if required to attend a court hearing. None of this was included in the warrant.
- Only the Police makes a request for an arrest warrant. However in this case the Prosecutor General who personally appeared in court made the request for arrest. The Prosecutor General does not have the mandate to request for an arrest warrant.
- Article 48 of the Constitution requires that detainees be presented before a judge for a remand hearing within 24 hours of arrest. Nasheed was not presented for remand within the 24 hours. As a result President Nasheed’s Constitutionally guaranteed right to challenge the lawfulness of his arrest was denied.
- Contravention of the Article 51 of the Constitution: Preisdent Nasheed was denied legal representation at the Criminal Court hearing on 23rd February 2015. The hearing was scheduled suddenly, which caused his lawyers to be rejected from the court due to a procedure at the Criminal Court that required legal representation to register 2 days prior to a hearing. It was scheduled only hours before the hearing. President Nasheed’s legal team was not informed any details of the charge or the hearing.
- Contravention of article xx of the Constitution, Right to appeal: When Nasheed’s lawyers tried to submit an appeal at the High Court, they were informed that they should appeal to the same court – the Criminal Court that issued Nasheed’s arrest order. This was a judicial administrative change that was directly brought by the Supreme Court note on 27th January 2015. This note also repealed the appeal procedure as prescribed under the Judicature Act.
- Under the Act on Protection and Benefits to Former Presidents (Act No. 9/2009), President Nasheed must be provided with MNDF security at all times. However, since his police custody, his security has been denied.
- When President Nasheed was produced before court on 23rd February 2015, the police used disproportional force to prevent him from speaking to press when members of the press approached him. He was manhandled by some police officers. This was in contravention with Act No. 5/2008 (Police Act) which requires the police to use proportionate force in exercising their powers.
- President Mohamed Nasheed was prevented from exercising his right to a lawyer and to seek legal consultation, as stated in Article 53 of the Constitution. He was seated away from his lawyers and prevented from consulting with his legal team.
- President Nasheed’s legal team was abruptly informed on 28 January that his trial – which has been on hold since May 2013 – will resume on 3 February.
- On 3rd February, President Nasheed’s legal team was informed that President Nasheed will not be permitted to leave Male’ even on days when the hearings are not scheduled.
- At the hearing on 3rd February 2015, we had the extraordinary spectacle of the judge limiting the time President Nasheed’s defence team could speak to just 10 minutes. The judge said he was using his stop-watch to time how long the lawyers spoke for. The Judge’s need for speed was all too apparent.
At the hearing on 3 February, President Nasheed’s legal team made the following requests:
- The legal team requested for a stay order to halt the re-appointment of new judges to the vacant positions on the Hulhumalé Magistrate Court bench by the JSC (Two magistrates who were previously appointed to the bench have now been appointed as judges to superior courts) Lawyers were informed by the High Court on Thursday (5 February) that the request for the stay order was rejected.
- In accordance to the rules of procedures of the High Court, the legal team requested the court to allow them to include an additional claim to the brief contesting Hulhumale’ Magistrate Court’s jurisdiction to hear the case. The additional claim was submitted to the case on 3 February as per the request of the High Court and no decision has been made on the additional claim yet.
8th February 2015
- President Nasheed was informed at around 10 am to attend court at 2 pm to sign the statements. Due to the short notice, President Nasheed’s lawyers requested the court to postpone signing of the statement on 8th February 2015.
- A summons chit was served in the afternoon on 8th February for signing and hearing of the case on the additional claim made by President Nasheed’s lawyers for early morning 09:45 on 9th February 2015.
9th February 2015:
- President Nasheed informed the High Court he was unable to sign the statements as adequate time was not given to him to review the statements as well as to discuss the matter with his lawyers.
- The court decided to proceed without President Nasheed’s signature on the statements.
- At the hearing, the High Court dismissed the appeal filed by President Nasheed stating that the High Court does not have jurisdiction to hear President Nasheed’s claim and said that the actions and the administrative decisions of the JSC is not subject to review by an appellate court.
- In doing so, the High Court contravened a previous ruling it had issued on 11th April 2013, during the first hearing of President Nasheed’s appeal. In April 2013 the High Court ruled that it is authorized as an appellate court to hear the very claims filed by President Nasheed against the JSC. It is noted that two of the three judges who made the initial ruling formed the three-member bench that issued today’s verdict.
- Upon dismissal of the case at the High Court on Monday, President Nasheed filed a case at the Maldives Civil Court contesting the process of constituting the Magistrate Court bench by the JSC.
11th February 2015
- At the first hearing for the civil claim filed by President Nasheed against the JSC’s actions, the charges were presented in court.
- A stay order was requested by his legal team to stop any further changes to the Hulhumale Magistrates’ Court bench convened to hear criminal charges against President Nasheed.
- JSC responded, “no changes have been brought to the bench but the bench no longer exists,” claiming that two out of the three magistrates appointed to the bench have been transferred to other courts.
- President Nasheed’s legal team responded by claiming that even if the bench no longer exists, a court can decide on the legality of that action taken to convene the magistrates’ panel. Moreover, his legal team highlighted that the fact that the bench no longer exists suggests changes have been made.
- President Nasheed’s lawyers contended that although the JSC has powers to convene magistrates, it cannot “handpick” magistrates – who do not sit in the court in question – to adjudicate on specific cases.
14th February 2015
- JSC responded to the claim by the President Nasheed’s legal team by stating that the Commission had the jurisdiction to transfer and allocate judges and magistrates according to article 52 (a) and (e) of the Constitution. JSC further stated that the decision was made as per the advise of the Supreme Court, not the Judicial Council and asserted that as per under article 143 of the Constitution a lower court cannot review these decisions.
- President Nasheed’s legal team requested to clarify whether the Civil Court cannot hear the appeal due to lack of jurisdiction or if the appeal cannot be heard because the Supreme Court has made a ruling on the case previously. JSC responded saying the procedural issue raised by JSC is due to the Supreme Court ruling.
- The Civil Court denied the request to issue a stay order to halt the process of appointing magistrates to the Hulhumale’ Court bench.
16th February 2015
- Prosecutor General withdrew charges levied against President Nasheed President Nasheed stating that the case was to be further reviews.
18th February 2015
- President Nasheed’s legal team called on the Prosecutor General not to re-prosecute President Nasheed.
22nd February 2015
- President Nasheed arrested by Maldives Police on terrorism charges at approximately 2.30 pm at his private residence.
- The arrest warrant stated, “reason for arrest: above mentioned person (Mohamed Nasheed) may not attend court hearings regarding terrorism charges filed by the State and that he may flee”
- The warrant also stated “evidence to support arrest: What transpired during court proceedings at Hulhumale Magistrate court and police intelligence report.”
- President Nasheed’s arrest warrant, issued by the Criminal Court on Sunday 22 February, did not contain key information as prescribed by law. For instance, the warrant did not stipulate the place where President Nasheed should be detained, or the period of his detention.
- The warrant was issued by the Criminal Court at the request of the Prosecutor General, Muhthaz Muhsin, who personally attended the court to seek the order. However, under Maldivian law the Prosecutor General does not have the powers to request for the detention of any one individual.
- The issuing of the arrest warrant was based on a classified police intelligence report, which is highly irregular as such reports are submitted only during the investigative stage.
23rd February 2015
- Criminal Court schedules hearing of the case against President Nasheed for 4 pm at the Criminal Court.
- President Nasheed’s legal team informed by the Criminal Court they will not be allowed to represent President Nasheed at the Court. New regulations set by the court require lawyers to register two days prior to the scheduled hearing. The case against President Nasheed was scheduled hours before the hearing, therefore his lawyers were barred from representing him at the hearing held at 4 pm.
- President Nasheed’s right to appeal the arrest warrant, as provided under the Constitution, was impeded. The Criminal Court refused on Monday to provide President Nasheed’s lawyers with the forms needed to lodge an appeal.
- President Nasheed was manhandled and hurt by members of the Maldives Police Force today, as they forcibly dragged him into the Criminal Court.
- Photos and videos, along with eyewitness testimony show police officers pushing President Nasheed to the ground as he paused to talk to reporters on the way into the Criminal Court compound.
- President Nasheed repeatedly asked the police to allow him to walk into the court unhindered, but police officers dragged him across the ground, ripping his clothes in the process.
- Nasheed repeatedly requested Judge Abdulla Didi to allow him access to medical treatment. The judge refused.
- The court ordered President Nasheed to remain in prison until the end of his trial. He has now been returned to Dhoonidhoo Island Detention Centre.
- President Nasheed was seen by a doctor in Dhoonidhoo and recommended to do an x-ray. But an x-ray was not done.
24th February 2015
- President Nasheed’s legal team in a letter to the Home Minister requests his transfer to house arrest citing fears over his safety and security while under police custody.
- Police brought President Nasheed to a healthcare clinic in Male’ for examination. Neither his family nor his lawyers were informed of this.
- President Nasheed’s legal team requested two judges, Uz Abdulla Didi and Uz Abdul Bari Yoosuf to recuse themselves from presiding over the criminal proceedings against President Nasheed as he would be submitting Uz Abdulla Didi and Justtice Abdul Bari Yoosuf as witnesses on his behalf, regarding the said criminal proceedings. Judge Uz Abdulla Didi and Uz Yoosuf are considered witnesses because both judges were present at Chief Judge Uz Abdullah Mohamed’s residence when he was taken under military’s supervision.
25th February 2015
- Legal team reveals Prosecutor General Muhthaz Muhsin and Judge Abdulla Didi and Judge Abdul Bari Yusuf of the three member panel of the Criminal Court assigned to the state’s terrorism case against President Mohamed Nasheed are found to have given witness statements to the case.
- The court documents submitted by the state reveal that the above-mentioned parties have been quoted as being state’s witnesses to the case.
26th February 2015
- The Criminal Court schedules second hearing of President Nasheed’s trial for 8 pm on 26th February 2015
26th February 2015
- President Mohamed Nasheed was prevented from exercising his right to a lawyer and to seek legal consultation, as stated in Article 53 of the Constitution.
- The former President was kept in the witness stand, rather than being allowed to sit alongside his lawyers, despite repeated requests to do so. As a result, President Nasheed was effectively prevented from properly consulting with his legal team.
- President Nasheed’s legal team raised concerns that they had not been given adequate time to prepare a reasonable defense against a charge as serious as terrorism. The bench allowed the legal team a mere three days to prepare their case. Normally, the court grants a period of 10 days to prepare a defence.
2nd March 2015
- President Nasheed’s lawyers raised two procedural issues. (i) Two presiding judges who had provided witness statements to decline from the bench, (ii) The Prosecutor General having withdrawn the previous charge, cannot re-prosecute him based on the same realities.
- The Court overruled on both procedural issues raised by President Nasheed’s lawyers and stated the judges refused to step down from the bench and said the court did not find the issue of re-prosecution unlawful.
4th March 2015
- The state presented 2 serving police officers as witnesses. President Nasheed’s lawyers were not permitted to cross examine the witnesses to the point of establishing their credibility.
- The Judges, on several occasions were found to be leading the witnesses, which President Nasheed and his lawyers objected to.
- President Nasheed’s legal team again requested bail, but were denied. A similar appeal lodged at the High Court was also denied.
- President Nasheed’s lawyers requested the Judges grant more time to prepare their case. The judge ruled that sufficient time had been given, and announced that the next hearing would be held on 5th March 2015 at 9pm.
5th March 2015
- The state presented 3 serving Maldives National Defence Force (MNDF) officers, including the current Chief of Defence as witnesses.
- President Nasheed requested that the current Chief of Defence Forces not be questioned, as it undermines the dignity of his post. The Judges denied this request.
7th March 2015
- The state presented 3 witnesses, Judge Abdulla Mohamed’s wife, a female relative of Abdulla Mohamed and a Chief Superintendent of Police. President Nasheed’s lawyers requested that testimonies of the witnesses should not be allowed if the witnesses have any animosity towards the accused. They further argued that a victim’s spouse may not testify due to conflict of interest. The lawyers were again denied the opportunity to cross examine witnesses in order to establish bias.
- Two of the three witnesses gave testimony via audio link. Despite repeated requests, the Judge would not disclose the reason why the witnesses had been permitted to do this, citing that that it was common practice in the court.
- President Nasheed requested he be given privacy to carry out the evening pray prior to his hearing. Court officials insisted he prayed in the waiting room in front of all officials and Police officers. He was only given privacy after much contention by him and his lawyers.
- President Nasheed’s lawyers repeatedly request Court to grant adequate time for the preparation of their defence. They also requested for a schedule of the hearings. This was denied.
8 March 2o015
- The hearing was initially scheduled for 4pm, but later postponed to 8pm. President Nasheed’s lawyers were informed that the state would present documentary evidence in the form of audio and video CDs. There were errors in the CDs given to the defence. This was relayed to the Criminal Court at 3pm. At 5pm the Criminal Court responded that they were looking into the matter.
- As President Nasheed’s lawyers were unaware of the contents of evidence to be presented, they were unable to discuss with him, and prepare a defence on his behalf. The lawyers informed the Court in writing that they would be not be able to attend the hearing because it would be in contravention with Article 51 (e) of the Constitution which required President Nasheed be given adequate time and facilities for the preparation of his defence.
- President Nasheed was without legal representation at the hearing. He requested for an additional 15 days. The Judges denied this request, stating that adequate time had been provided, and scheduled the next hearing for the next day.
- The Judges informed President Nasheed that the hearing would continue regardless of whether he had legal representation. President Nasheed was denied an opportunity to ask the Judges how he was to appoint legal representation while he was under arrest in Dhoonidhoo detention centre.
9th March 2015
- President Nasheed’s hearing is scheduled for 8pm.
- President Nasheed’s lawyers withdraw from the case due to lack of time to prepare defence for revised terror charges. They stated that continued representation would violate rules of professional responsibility.
- The Court carried on with the hearing despite repeated requests by President Nasheed for legal counsel. At every opportunity President Nasheed was given to address the court he asked the Court to permit him to appoint legal counsel of his choosing.
- The Judge denied President Nasheed’s lawyers’ claims that they were not granted adequate time, claiming that they had been in possession of the case documents since 2012.
- President Nasheed objected to this by reminding the Court that although the case documents are the same, the charges levied are grossly different. The Judge dismissed these claims.
- The Judges ruled that witnesses proposed by defence would not be allowed, as they didn’t believe these witnesses would negate the testimony given by those presented by the State.
- The Judge also ruled that the Chief Judge of the Criminal Court, Abdullah Mohamed would be brought in as a witness in the next hearing. This was decreed despite the State stating that they had no more witnesses to present
10 March 2015
- President Nasheed repeatedly requested for legal counsel, additional time to seek lawyers and stated that he is unable to appoint lawyers while he is under arrest. Judges denied.
- Abdulla Mohamed was brought into give testimony, and the questioning was led by the Judges. President Nasheed requested for access to legal counsel which was denied.
- The next hearing was announced for March 13 2015, where the Court said it would hear concluding statements and discussion over witnesses.
13 March 2015
- The Criminal Court held a 20 minute hearing where the state was allowed to present its concluding statement.
- President Nasheed, again requested for a lawyer.
- At the end of the hearing, the Court declared for all hearings of this trial to be over and said that it would pronounce a verdict later on that evening.
- Journalists and members of the public were physically prevented from leaving the courthouse by court and security officials.
- The Judges went through a 20 point summary before pronouncing a sentence of 13 years in jail against President Nasheed. Within this summary, they recounted testimony given by State’s witnesses and reiterated that they did not see any conflict of interest in the Prosecutor General and two of the three presiding Judges having submitted witness statements for the case. The Judge also recounted the testimony of Chief of Defence Force, General Shiyam wrongly.
“Henceforth, after examining the case on charges of terrorism brought against Mohammed Nasheed, G. Kenereege / K. Male’ by the State, Mohammed Nasheed in his capacity as the Commander in Chief of the national defence forces, having decided to have the Chief Justice of the Criminal Court Abdullah Mohamed, Bahaaruge / R. Hulhuduffaaru arrested by the Maldives National Defence Force; and on the 17 January 2012 at approximately 00:00 hours, by forcefully taking and keeping Abdullah Mohamed in abduction at K. Girifushi, a headquarters under the authority of the defence forces, this having been proved by the evidence and circumstantial evidence produced by the State, and based on the said evidence and circumstantial evidence, this bench has come to the unanimous decision, that under Section 2 (2) of the Law Number 10/90 (Law on Prohibition of Terrorism in Maldives), Mohammed Nasheed, G. Kenereege / K. Male’ is guilty of the offence of terrorism, and under Section 6 (2) of that law hereby sentence Mohammed Nasheed, G. Kenereege / K. Male’ to 13 (thirteen) years of imprisonment in jail and hereby pass judgment as such”
15 March 2015
- President Nasheed’s lawyers requested the Criminal Court for the record of court proceedings from the trial concluded against him on Friday, March 13. This report is required to file for appeal at the High Court.
- The Criminal Court stated that it will only be able to provide these documents within 7-14 days.
- The Supreme Court issued a circular on 27 January 2015 stating all appeals on verdicts issued by Magistrate courts, Superior courts and Tribunals had to be filed within 10 days. This circular reduced the appeal process from 90 to 10 days.
- High Court appeal hearing of the initial arrest warrant was held at 2 pm. But, President Nasheed requested the Judges to make it a public hearing. The Judges refused to make it a public hearing and later dismissed the appeal. This decision contravenes Article 42 of the Constitution and Article 71 of the Judicature Act.
19 March 2015
- The Criminal Court released a judgement summary. A full case report is required to build a solid appeal. The full case report includes information, such as: statements of witness testimonies given in court; the closing statement submitted by the prosecution; and detailed findings of the judges with reference to the evidence.