Food For Thought

Facing reality.......

A coup d’état is usually brought about by people who are convinced that they cannot acquire power through democratic means and / or those whose vital interests are mightily threatened without power .

Saturday, October 6, 2012

President Nasheed and the Courts

Many of my friends and colleagues, especially my “twitter friends” have been inquiring me of late, about my view of President Nasheed’s decision to disregard a summons by “Hulhumale’ Court”. I myself have been pondering over it as my initial reaction was that President Nasheed should not have done it. However, when I looked at the issue dispassionately and in the context of many anamolies in the Criminal Justice System of the Maldives, the case does not appear to be so simple. In fact it is rather complex, and adds to the myriad of convoluted issues we are being forced to grapple with.

It is so complex that the 140 meagre characters that twitter gives us is barely enough to expound on this particular problem. At best, it is a unique and delightful academic issue to ponder on. What I write below is not meant to be a legal discourse, but more an academic and intellectual approach to analyze a social problem.

It is not helpful to consider President Nasheed’s decision to ignore the court summons just by itself to fully understand the phenomenon. One needs to consider a host of other issues to grasp the enormity of the situation.

On the face of it, anyone who is summoned by the courts should willingly do so, and anyone disobeying an order by the court should rightfully be held in contempt of court and punished for it. This is necessary for the upholding of the rule of law.

However, one needs to also consider the basic assumptions underlying these powers of the courts and the reasons for granting the courts such powers.

Among many, the following assumptions are made in relation to the courts:

·       The courts will not act outside the jurisdictions granted to them by law, and any ultra vires orders by courts do not constitute a valid order which falls within the concept of contempt of court
    The courts will apply same procedures to all, and are bound by law to do so, and will not be selective in the application of law and procedures
        The courts shall not display any bias in any way towards or against any person, and most importantly will not be seen or perceived to be biased in any way

There are many other such assumptions, but I limit this discussion to the above three assumptions.

Firstly, on the matter of jurisdictions
·       There is huge contention whether Hulhumale’ Court has been granted powers by the law to try ANY case whatsoever. The Constitution says very clearly that trial courts will be defined and created by Law. When Parliament created courts by the Judicature Act, there was no “Hulhumale’ Court” designated as a Magistrates Court. The Supreme Court itself is still sitting on the case of the validity of the Hulhumale’ Court. It was created by the Judicial Service Commission, without authority derived from Law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. THEREFORE, PRESIDENT NASHEED’S DECISION TO IGNORE THE SUMMONS HAS MORE THAN REASONABLE LEGAL GROUNDS.
·       The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court ONLY) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of THAT court. In this case, a panel of judges from other courts was appointed by the JSC to Hulhumale’ Court. JSC does not have that authority by Law. If Hulhumale’ Court is legitimate, and is a Magistrate’s court, it would be the only Magistrate Court in Male’, and per the Judicature Act, would not have any other court to tie up to in order to convene a panel of judges. If it is considered part of Kaafu Atoll, then the panel should be convened from among magistrates assigned to Magistrate Courts operating within Kaafu Atoll, and the Chief Magistrate for Kaafu Atoll should convene the panel. The panel of judges convened now was convened by the JSC, and the panel includes judges from other atolls.
·       The Hulhumale’ court issued a travel ban order to President Nasheed, without ever summoning him to court, and in his absence, before any charges had been presented before him. No court has the power to issue such an order under any law. The court could have issued such a bail condition after the first hearing, if there was reasonable justification to believe President Nasheed might flee the country or he might present a security risk for the community through further criminal activity.

On the basis of the above, there is more than ample grounds to contend that the summons was issued by an Unlawful Panel of Judges, sitting in an Unlawful Court, which had already issued an Unconstitutional restraining order which was ultra vires

Secondly on the matter of selective application of procedure
·       Deputy Speaker of the Majlis Ahmed Nazim defied 11 summons and only appeared in court for the 12th summons. No action was taken against him.
·       An order for Abdulla Hameed (Gayyoom’s brother who now resides in Sri Lanka) to be brought to court was issued by the Criminal Court a long time ago. However the Court has not provided an English translation of the Court Order to be submitted to Interpol. Nor have the Police contacted Sri Lankan authorities to repatriate him under the bilateral agreement which allows that. It should be noted that Sandhaan Ahmed Didi was repatriated from Sri Lanka airport under the same agreement, without even a court order, or charges being laid against him.
·       There are numerous cases of prominent politicians and business tycoons disobeying court summons, and to date no one has been convicted for contempt of court for this offence. This leads to the argument that not appearing before the court on account of a summons is not an offence for which people are prosecuted even though it is a prosecutable offence. By past practice and hence precedent and customary practice, no one has to appear before the court every time a summons is issued.

Based on the above, there is more than ample grounds for President Nasheed to claim that there is no need for him to appear before the Court at the Court’s convenience and his inconvenience. Further, there is a rightful claim that the court has already exercised bias against him and that it is unlikely that he will receive a fair trial. More importantly, the fundamental principal of equal application of law and procedure has been seriously compromised.

Thirdly, on the matter of bias
·       Ample demonstration of bias has been made in the above paragraphs to start with
·       One of the three judges on the bench has wrongfully authorized detention of President Nasheed before, and can be considered as biased against him
·       One other judge already has cases of misconduct being investigated against him by the JSC
·       The third judge is reportedly a classmate of Abdulla Mohamed in the Mauhadh Dhiraasaathul Islamiyya
·       Thus there is a widely held perception that President Nasheed will not be accorded a fair trial. One of the Principles of Natural Justice is that not only should justice be done, but it must be seen to be done too. 
·       When over 2000 cases are waiting to be prosecuted (including murder, rape, child molestation, child abuse and other serious white collar crimes) at the Prosecutor General’s Office, one asks the question why has this case been expedited beyond normal protocol.

Thus there are grounds to argue that a panel of judges who issued ultra vires restraining orders on no demonstrated reasonable grounds cannot be expected to give a fair trial or judgment.

Thus, it would appear to be a reasonable decision on the part of President Nasheed that since he is not being summoned by a legitimate court, by legitimate judges through legitimate procedures, he is unlikely to get justice; and that his appearance before the court will simply whitewash a huge injustice to him, and therefore he will not appear before the court and face the consequences and fight it in his own way.

This is just a very summary description of what I think are some relevant issues surrounding the situation.

The legitimacy of courts and their orders and decisions lie in the courts and their actions being within the framework of the law, which is applied equally to all. An ultra vires decision of the court is no different from a decision by an individual to disobey the decision of the court itself.

Hence my tweet : Impunity can only be matched with impunity.

When legal systems breakdown to the level we are seeing, laws are not worth the paper they are written on. Anarchy rules, which comes from a very primitive instinct within human beings : survive any which way one can. We enact laws and try to uphold the rule of law to move away from this and live in a civilized fashion. For rule of law to be upheld, ALL PUBLIC INSTITUTIONS AND OFFICIALS have to abide by it. It is extremely fragile. If just ONE disregards the rule of law and the issue is not rectified quickly, it spreads rapidly like a cancer and destroys the whole system, paving way for anarchy. I think we are fast approaching that point. The final signs, that of treating human life with impunity on account of difference of opinion is already here. The rest is likely to follow soon.

The outlook is appears to be rather bleak. But from a systems theory perspective, this had to happen. All vestiges which held the faulty system had to break before reformation could take place. There will be chaos. There already is. It may worsen. And then, if we are lucky, out of chaos will emerge order. But what kind of order it will be depends on which paradigm wins. At this point in time, I would tentatively suggest it may be religious extremism.


  1. Anomalies*

    Get the words, and the concept right Ibra.

  2. Thanks Anon, for pointing out the typo. I'll just leave it as it is though :)

  3. You, know Ibra. The real anomaly i not the validity of the court or the inconstant treatment or any of that you mention. It is the behavior of the politicians. I say politicians is for a reason, because this anomaly is not just restricted to President Nasheed. It's common across different colors.

    President Nasheed first said he will cooperate with the case and will face the courts and defend him self. And when the case was schedule he takes a trip avoiding the court and saying some bla bla bla. Making the intellectuals like you and many other believing he have position on this. And to support him pundits like you come up with all possibilities and write it on paper and blog, tweet it and say it on live TV.

    ONLY to realize that President Nasheed had change his position again and accepted to cooperate with courts and ongoing case. Gosh.. You really got to think about this non legal but intellectual anomaly of President Nasheed.

    1. President Nasheed may, and will, do what he chooses to do. What he does or doesn't do, will not change the facts of the case that I have outlined. As I said in my blogpost, what I have written are the results of my pondering. But I guess you too must have a position on this.

    2. My position is simple. Don't change position.

      If president Nasheed is not willing to go to Hulhumale' court don't go to that court. Don't ask to delay the court, inform that he do not accept the existence of Hulhumale' court. That's taking a moral stand. If he also want to take legal stand, file a case in supreme court to cease all cases in Hulhumale' court until supreme court comes to a conclusion on its validity.

      Juggling between statements, create a social culture that says Law is just a game and politicians are actors. President Nasheed can't do what ever he chose to do. Al least we ought not let him do. We need to make politicians responsible. That is democracy other wise we just elect dictators.

    3. I guess you are referring to President Nasheed changing his mind about turning up at Hulhumale' Court. I neither defend nor condemn either of his positions. As I said before, that is his choice, and the system ought to have ways of dealing with it. From that perspective, it is trivial. However, it does have other implications, of course.

      Just a matter of note, you referred to taking the matter of the validity of Hulhumale' Court to the Supreme Court. I believe that case has been sitting in the Supreme Court for quite sometime now.As usual, the Venerable Justices are playing politics with the case just by sitting on it.

      I understood today, that President Nasheed is being prevented from seeking an injunction from the High Court on the matter due to "administrative procedures" of the High Court.

      These are addenda to what I was outlining in my Post. The case of Abdulla Mohamed sailed through the High Court and the Supreme Court in the middle of the night. President Nasheed can't even file his case in the High Court.

      Such is Justice in the Maldives. The string of injustices being handed out by the courts to so many people are largely to do with procedural inconsistency. What is one supposed to do?

  4. Let me say I agree with you on all those points.

    1) a) Did President Nasheed speak about Hulhumale' Court being unlawful WHILE he was the sitting president?
    b) If yes, when & where? Also could you provide me any links to any source where I can read/listen?
    c) If no, why not? & Does it not raise questions about his sincerity, if he is speaking about it ONLY when he has been summoned?

    2) a) If President Nasheed genuinely believes that Hulhumale' Court is unlawful, then why in the first place has he accepted the summon chit?
    b) Also why has he now asked for a change in date? Does a later date change the status of the Court or the bench selected?

    1. My answer to your questions:

      1a) I don't know. You should ask him.
      1b) Ditto
      1c) Ditto
      2a) Ditto
      2b) Ditto

      In case you haven't noticed, I am not speaking on behalf of President Nasheed. That appears to be your assumption.

      I simply wrote a blogpost about my ponderings on the issue of this summons. What I have written here are not President Nasheed's thoughts or his positions. These are MY thoughts about his initial decision not to attend.

      You may be barking up the wrong tree here. If you really want answers to those questions, which are exclusively about President Nasheed's thoughts and actual reasons for his actions, you should contact him or his staff. I'm afraid I can't answer on his behalf. :)

    2. Yes, I understand you are not speaking on behalf of president Nasheed. You definitely know I'm asking about what you think. From your blog post it seems to me, President Nasheed's evading from the court is justified to you. I get what you have said, & they are all true. But what do u think of my concerns? Don't they have a fair basis?

      I definitely believe President Nasheed has been the best president we've had in any recent history. But I can't understand certain things he did & is still doing. :)

  5. In order to understanding various things he did while in office, and what he is doing since he was ousted from office and their, legal, moral, social and political reasons, one would have to follow many inter-related events which has led up to the Hulhumale' Court fiasco. They are too numerous to list here, and a selective sampling may distort the whole issue.