A Chronological Brief of the Ruling on the Case against the Former President Mohamed Nasheed

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Introduction

Case No. 01/SC-A/2016 of the Supreme Court was adjudicated when the Prosecutor General with the responsibilities conferred onto him under Article 223 (k) of the Constitution to uphold the constitutional order and to establish justice and with reference to Articles 9 (f) and 22 (a) of Act No. 22/2010 (The Judicature Act of the Maldives) filed an appeal to determine whether Case No. Cr/132/2015/C of the Criminal Court and the High Court’s decision on appeal application No. 01/2015/HC-IH were taken in accordance with the laws of the Maldives and international standards.

Mohamed Nasheed of G. Kenereege, whose interest vested in the case was given opportunity for representation.

 

No. 01/2015/HC-IH the Decision of the High Court on the Appeal Application

No. 01/2015/HC-IH was a procedural decision by the High Court, a decision which determined whether the Prosecutor General’s request to appeal the case, No. 132/Cr-C/2015 of the Criminal Court, met the criteria for appeal. The defendant of the aforementioned appeal case No.01/2015/HC-IH was Mohamed Nasheed of G. Kenereege.

 

Supreme Court Receives the Case and Adjudicates

On 25 November 2015 the Supreme Court of the Maldives held a procedural hearing to decide on Case Number HC-IH/2015/01, the decision of the High Court on Appeal Application and after reviewing the legal points that the Prosecutor General had presented and in view of Articles 9(f) and 22(a) of Act Number 22/2010 (The Judicature Act of the Maldives), the Supreme Court decided to admit the case to court for adjudications.

 

Points Highlighted by the Supreme Court Vis-à-vis the Case

On reviewing the case with respect to the Constitution, the Laws, the decision of the High Court on Case No. HC-IH/2015/01, the summary report of Case Number 132/Cr-C/2015 of the Criminal Court, the affidavits and oral statements given by the litigant and the defendant Mohamed Nasheed at the trial proceedings of the Supreme Court and after examining the characteristics of similar cases both from a legal and judicial perspective, the bench of Justices of the Supreme Court  who  presided over the case highlighted the following 10 points.

 

1. The evidence and testimonies presented by the State to court proved that Mohamed Nasheed as Commander-in-Chief of the Armed Forces decided to arrest Chief Judge of the Criminal Court, Abdulla Mohamed of Bahaaruge of Raa. Hulhudhuffaaru and executed the decision using the Maldives National Defense Force on 17 January 2012 at around 00:00 hrs by forcibly taking Abdulla Mohamed to the military base in Girifushi island of Kaafu Atoll and holding him captive and based on the evidence and testimonies, the Criminal Court had found Mohamed Nasheed of G. Kenereege guilty of the crime of terrorism under Article 2 (b) of Act Number 10/90 (Terrorism Act of the Maldives) and sentenced him to 13 years in prison for the crime under Article 6 (b) of the Act in Case No .  132/Cr-C/2015 of the Criminal Court.

 

2. The Judges who deliberated over Case No. HC-IH/2015/01 of the High Court, in a unanimous decision concluded that the application to appeal Case No. 132/Cr-C/2015 of the Criminal Court may not accepted by the High Court as an appeal case as the appeal was filed by the Prosecutor General in an application which did not meet the criteria for appeal stipulated in Article 43 of the Judicature Act of the Maldives and because Mohamed Nasheed of G. Kenereege the one convicted and  sentenced in Case No. 132/Cr-C/2015 of the Criminal Court  had not challenged the sentence and appealed the case.

 

3. The main points submitted by the Prosecutor General to determine whether the decision for Case No. 132/Cr-C/2015 of the Criminal Court and Case No. HC-IH/2015/01 of the High Court were in accordance with the laws of the Maldives and international standards.

a) Whether Mohamed Nasheed was given adequate time and facilities to prepare his defense as guaranteed under Article 51(e) of the Constitution, during the trial on the unlawful arrest and detention of the Chief Judge of the Criminal Court Abdulla Mohamed by the Maldives National Defense Force.

b) Whether Mohamed Nasheed was given the right to defend himself through legal counsel of his own choosing as guaranteed under Article 51 (e) and (f) of the Constitution, during the trial on the unlawful arrest and detention of the Chief Judge of the Criminal Court Abdulla Mohamed by the Maldives National Defense Force.

c) Whether the independence of the courts and impartiality of Judges specified in Articles 141 and 142 of the Constitution were maintained during the trial and whether the defendant Mohamed Nasheed was provided the right to a fair and transparent trial as provided for in Article 42 of the Constitution.

d) Whether Mohamed Nasheed, during the trail held at the Criminal Court, was given the right to examine witnesses presented against him and to obtain the attendance and examination of witnesses of his own as per Article 51(g) of the Constitution.

 

4. The conditions for appealing a case at the High Court of the Maldives are broadly stipulated under Article 43 of Act No. 22/2010 (The Judicature Act of the Maldives) which include the existence of a valid reason to support the claim that a ruling or decision is unlawful and/or an error in interpreting laws, and/or a procedure which influenced the ruling or decision has since been invalidated due to a flaw.

 

5. As delays in the execution of sentences in criminal case rulings conflict with the interest of the Criminal Justice System, it is imperative that the rulings become conclusive within a reasonable period of time and hence the appeal period for the rulings of first instance courts are time bound under some jurisdictions. In this respect should there be any grievance against a ruling given by a lower court of the Maldives be it a criminal case or any other, the litigant must within 10 days, appeal the case to the court which gave the ruling and the court shall within 07 days of receiving the appeal application, forward the case file and documents to the relevant court of appeal as specified in Circular Number 2015/06/SC of the Supreme Court of the Maldives. In the event of an unforeseen circumstance or any other valid reason which prevents a person from appealing the case within the duration and should the person who wish to appeal the ruling submits the matter in writing to the appeal court citing reason or reasons for delay, the court has the discretion to admit the case.

 

6. While it is clear with reference to the rules for appeal, that Mohamed Nasheed of G. Kenereege who was convicted of the crime of terrorism under Case Number  132/Cr-C/2015 of the Criminal Court, has not appealed the ruling under the established procedures, and although the High Court has not accepted Case Number 132/Cr-C/2015 of the Criminal Court submitted by the Prosecutor General, as an appeal case on the grounds that the case did not contest the ruling of the Criminal Court, and that the points for appeal made by the Prosecutor General do not meet the conditions for appeal prescribed under Article 43 of the Judicature Act of Maldives, the High Court in its closing statement to the decision on the application for appeal Number HC-IH/2015/01, has responded to  the points raised by the Prosecutor General with the powers vested in him under Article 223 (k) of the Constitution, to ascertain whether the ruling on Case Number 132/Cr-C/2015 of the Criminal Court was in accordance with the laws of Maldives and within the established legal and judicial standards.

 

7. The case filed by the Prosecutor General to the Supreme Court of the Maldives is not an appeal case filed under Article 12 of Act No. 22/2010 (The Judicature Act of the Maldives) to contest the High Court’s decision on Case Number HC-IH/2015/01 as unlawful, but rather is a case submitted under Article 9(f) and Article 22(a) of the Judicature Act of the Maldives and with reference to the powers and jurisdiction of the Supreme Court as the ultimate authority of justice in the Maldives, to ascertain whether the ruling on case the number 132/Cr-C/2015 of the Criminal Court and the High Court’s decision on case number HC-IH/2015/01 complied  with the laws of the Maldives and international standards and practices. On review of the points put forth by the Prosecutor General, the Supreme Court noted the following:

 

a. Adequate time and facilities were provided for the preparation of defense

It is evident from the litigation form number 602/2012/HMC/1 of the Prosecutor General’s Office that the Prosecutor General initially filed the case on 15 July 2012 at the Hulhumale’ Magistrate Court and the charge brought against Mohamed Nasheed by the Prosecutor General in relation to the aforementioned incident was the “unlawful arrest and detention of an innocent person” and that it was a crime under Article 81 of the Penal Code which was in effect at the time and while the Case No. 397/HMC/2013 was being processed at the Hulhumale’ Magistrate Court for close to three years, with the powers vested in the Prosecutor General under Article 223 (g) and (h) of the Constitution, the case was reviewed and submitted to the Criminal Court on 22 February 2015 as Case Number  132/Cr-C/2015 and the charge brought against Mohamed Nasheed by the Prosecutor General in relation to the above mentioned incident and under Article 2 (b) of Act Number 10/90 (Anti-Terrorism Act of the Maldives) was on suspicion of having committed an act of terrorism and although the charge brought against Mohamed Nasheed in the case filed at the Hulhmale’ Magistrate Court for the criminal act he allegedly committed, was reviewed and  filed at the Criminal Court with a legal definition, all the facts, evidence and testimonies and other documents submitted at the Criminal Court under Case Number 132/Cr-C/2015 were the same facts, evidences, testimonies and documents submitted to the Hulhumale’ Magistrate Court under Case Number 397/HCM/2012 and that the materials were made available to Mohamed Nasheed. In addition it is clear that the same attorneys who represented Mohamed Nasheed  at the Hulhumale’ Magistrate Court represented him at the Criminal Court  and that although the charge pressed against Mohamed Nasheed in the case submitted on 15 July 2012 was reviewed and the criminal incident described in the case was given a legal definition, the criminal incident described in the case remained unchanged and the state had not presented new evidences or testimonies, thus making it evident that in Case Number 132/Cr-C/2015 of the Criminal Court, Mohamed Nasheed was provided with adequate time and facilities to prepare his defense as stipulated under Article 51 (e) of the Constitution.

b. The right to prepare defense with assistance of a legal counsel of his own has not been restricted

Article 51(e) and (f) of the Constitution entitles every person has the right to communicate with and instruct legal counsel of his own choosing for the preparation of his defense and Article 53 (a) of the Constitution states that “everyone has the right to retain and instruct legal counsel at any instance where legal assistance is required ” and while section (b) of the Article states that “In serious criminal cases, the State shall provide a lawyer for an accused person who cannot afford to engage one” it is evident that the right is enshrined in the constitutions of various democracies, and in international instruments such as the Universal Declaration of Human Rights (1948)  and the International Covenant on Civil and Political rights (1966). While the right to seek assistance of a legal counsel is conferred in the interest of the defendant, unless otherwise decided by a court of law in the interest of justice, it is at the discretion of the defendant to relinquish the right and defend himself in court and while it is clear if the defendant does not request the state to appoint a lawyer for him on grounds of financial constraints when the court provides him with the opportunity to seek assistance of legal counsel, the court has the power to assume that the defendant has relinquished the right and conduct the trial without a defense attorney. When Mohamed Nasheed requested the assistance of legal counsel during the first hearing of the case filed at the Criminal Court by the Prosecutor General ( Case Number 132/Cr-C/2015) the opportunity was provided to him, and subsequent trials held on the case were conducted with the lawyers appointed by Mohamed Nasheed, although on 8 March 2015 well past the time the hearing was scheduled to begin, his lawyers informed the court the defendant has withdrawn himself from the case, and there is documented proof that Mohamed Nasheed was again provided with the opportunity to appoint lawyers and he declined  and thus there is no reason to believe that in the trial proceedings of Case Number 132/Cr-C/2015 of the Criminal Court, the court had restricted the accused the right to seek assistance of a legal counsel of his own choosing to prepare his defense as provided for under Article 51 (e) and (f) of the Constitution.

c. Independence of the courts and Judges pursuant to the Constitution was not undermined by any incident whatsoever

It is evident that the Chief Judge of the Criminal Court Abdulla Mohamed, as the victim in the case filed against Mohamed Nasheed at the Criminal Court, (Case Number 132/Cr-C/2015) was ineligible to rule over the case, and that in a criminal case it is improbable that the injured party has the capacity to be independent and impartial when adjudicating the case and it is an established principle  in criminal procedures that the victim does not have the authority to preside over such a case, and hence Abdulla Mohamed was not involved in any aspect of the case. It is also clear that to ensure a fair and impartial trial, criminal procedures dictate circumstances in which a judge is disallowed to preside over a criminal case. In this respect when it is clear that in criminal cases, anyone who investigated the case, an attorney who has represented the accused in court, anyone who testified regularly in the case and anyone who worked as an expert in the case and such persons are disallowed from adjudicating the case as a Judge. The fact that two of the Judges who adjudicated Case Number 132/Cr-C/2015 of the Criminal Court were sitting Judges in the court when the alleged incident against Mohamed Nasheed took place does not by nature disqualify them from presiding over the case or substantiate a reason to question their independence and hence it is clear that in the trial of Case Number 132/Cr-C/2015 of the Criminal Court no incident occurred which could potentially undermine the independence of the courts and the integrity of judges stipulated in Article 141 and 142 of the Constitution.

d. The right to examine witnesses presented in court from the prosecution was granted as per the rules established in the Criminal Procedures

It is clear that the court had given Mohamed Nasheed the opportunity to examine all witnesses presented by the Prosecutor General and to defend himself against all the evidence and testimonies presented in court against him in accordance with the rules established in the Criminal Procedures. Furthermore it is clear that the defendant Mohamed Nasheed was allowed to present witnesses and evidence from his side although witness statements presented by the defense was not taken by the court, as the evidence presented by the state gave a strong chronological depiction of the incident it was stated in the summary report of the aforementioned case of the Criminal Court. That Mohamed Nasheed was granted the right to examine witnesses against him and to obtain the attendance and examine his own witnesses as stipulated in Article 51(g) of the Constitution and as per the rules established in the Criminal Procedures is clear.

 

8. With reference to the facts elaborated in the aforementioned points presented by the Prosecutor General to determine whether Case Number 132/Cr-C/2015 of the Criminal Court was ruled in accordance with the laws of Maldives and in line with international standards, it is clear that in  Case Number 132/Cr-C/2015 ruled by the  Criminal Court, the defendant Mohamed Nasheed of G. Kenereege was granted all the rights guaranteed in the Constitution, the laws, relevant international covenants, the principles established in the Criminal Procedures, and all the basic rights associated with a fair trial guaranteed in the criminal procedures of democratic countries.

 

9. It is clear that the decision of the High Court (Case Number HC-IH/2015/01) which ruled to reject the appeal application submitted by the Prosecutor General to appeal Case Number 132/Cr-C/2015 of the Criminal Court, on the grounds that the conditions for appeal did not meet the criteria set forth   under Article 43 of Act number 22/2010 (The Judicature Act of the Maldives) and that Mohamed Nasheed of G. Kenereege who was sentenced in Case Number  132/Cr-C/2015 of the Criminal Court had not appealed the case to contest its ruling, was in accordance with the legal and judicial standards.

 

10. Should Mohamed Nasheed believe that with respect to the events stated in Case Number 132/Cr-C/2015 of the Criminal Court the law was not applied objectively or in accordance with procedures, the matter should be referred by him to the relevant court of appeal and in this respect even though Mohamed Nasheed was entitled to appeal the case at the High Court according to the rules of the Criminal Procedures, it is clear that Mohamed Nasheed did not exercise the right within the procedural timeframe  and because he had not, even well after the appeal duration since the case was concluded by the Criminal Court on 15 March 2015, cited a valid reason and attempted to appeal the case, it is clear that Mohamed Nasheed has forfeited  the right to appeal the case and that the verdict for  Case Number  132/Cr-C/2015 of the Criminal Court is therefore conclusive.

 

 

For the aforementioned reasons being thus, the Justices of the Supreme Court of the Maldives were unanimous in their decision that the ruling of the High Court Number HC- IH/2015/01 which decided renounce the application filed by the Prosecutor General as an appeal case on the grounds the appeal did not meet the criteria set forth in Article 43 of Act number 22/2010 (The Judicature Act of the Maldives) was in accordance with the legal and judicial standards.

However, it is duly noted that when covering court cases, some news media, online news and journals report selected parts of the case alluding to the prejudiced views and bias of the journalists, whereby distorting the facts surrounding a case.

Furthermore, when reporting on the rulings and decisions of Judges in a case, instead of objective and factual presentation of the court’s decision, some media report the news to portray the decisions of the Judges as being subjective and individual.