By N Sathiya Moorthy
Despite apprehensions in some quarters, the suburban Hulhumale’ Magistrate Court in Maldives let former President Mohammed Nasheed to go home after the day’s hearing on Wednesday evening, a day after he was picked up by the police a day earlier and detained overnight. The court has now adjourned the trial against him in the ‘Judge Abdulla abduction case’ by four weeks, rejecting the submissions of the defence for postponement until after the conclusion of the presidential polls, where the Maldivian Democratic Party (MDP) has nominated him.
For starters, there need have been no apprehension about Nasheed being detained for a longer period, to commencement. The perception that the arrest related directly to the ‘abduction case’ was also wrong. Instead, it owed to Nasheed’s non-submission to court summons on more than one occasion. The court order for his detention, this time as earlier, aimed at ensuring his production, and nothing else. The trial, and conviction, if any – followed by sentencing – would have to wait. So should Nasheed’s disqualification from contesting the presidential polls, if it came to that.
The trial court made it as much clear, in an abstruse way, though. The defence had argued that trial at this stage when Nasheed was a presidential candidate would deny the voter’s ‘right’ to have him as their democratic choice. The court did not buy this argument, observing that Nasheed would become a candidate only after the Election Commission notified as such. Implied in this part of the court’s observation may have been a concession that Nasheed case may not be taken up until after the polls if and when the Election Commission notified his name as among the approved candidates.
Another highlight of the day’s trial was the prosecution’s submission that they would have no objection if the court adjourned the trial until after the presidential polls. The prosecutors later clarified that they had not sought the time, as was being made out by the defence, which alone had sought time. They had no objection, and would abide by the court orders in the matter, they submitted.
Political, not legal
It was in this background that the court adjourned the case by four weeks, after the defence argued that they would need time to appeal to the higher courts on procedural issues. The Judges however observed that procedural issues had already been addressed and settled in the case. In one such instance, up to the Supreme Court of the country, the Nasheed defence lost out on the interlocutory petition, questioning the legality of the Hulhumale’ court’s creation, and the suitability of the Judicial Services Commission (JSC), with a sitting Judge of the Supreme Court and political adversaries of Nasheed, for selecting the three Judges.
A member of the JSC, Sheikh Shuaib Abdul Rahman, has since come out openly in support of Nasheed’s cause in the matter. However, it may add to the plethora of political issues that the MDP has flagged, possibly without providing any additional ground for the higher judiciary to revisit those issues, leave alone upturn its earlier verdict. On that score, the work of the MDP-dominated Parliament’s Government Oversights Committee, in summoning the trial Judges, revisiting the Report of the Commission of National Inquiry (CoNI) on February 7 power-transfer last year are all political nature. They have not contributed in any way to influencing or altering the course of the legal and judicial processes.
This opens up possibilities if the court were to take up the trial in the next hearing. Going by media reports, the Judges made that much clear on Wednesday. They ruled that the procedural issues having been dealt with already, if the defence did not join the trial, they would move on to the next stage – of recording the evidence of prosecution witnesses, starting with the then Police Commissioner. It remains to be seen if the Nasheed defence may have other aces up its sleeve in terms of procedural issues and interlocutory petitions, which in turn could travel up to the Supreme Court, either collectively, or one after the other. Among the democracies, experience in the Indian neighbor may have lessons for the defence – and precedents for the Maldivian judicial system – independent of bilateral policies and unilateral politics.
A lot will depend on how the Nasheed defence proceeds from here – if and when they move the higher judiciary on procedural matters. Any prolonged hearing on these issues and other interlocutory petitions that may emerge from time to time may have the potential to delay the trial as much. With a three-tier judicial system, from the trial court to the Supreme Court via the High Court, it could mean a lot for both sides. The defence could not complain later that it did not get a fair trial, the Government side (going beyond the Judiciary) could claim that it was a fair trial – and Nasheed too may have possibly got the time-reprieve he, his defence and his Maldivian Democratic Party (MDP) have been working on.
Co-accused on trial
Pending the court taking up the Nasheed case four weeks hence, it has already fixed the dates for moving forward with the trial in the case of two of the three co-accused, charged for ‘illegal abduction’ of Mohammed Abdulla, Chief Judge of the nation’s Criminal Court. As per Maldivian criminal procedure, on separate days, the Judges would record the evidence of prosecution witnesses against then Defence Minister Tholhath’ Ibrahim and then Male security forces commander, Brig-Gen Ibrahim Didi, who resigned to ‘uphold the dignity of the high office’ after being named in the abduction case.
It is unclear how the proceedings in these two cases – and also against the third co-accused, when taken up – will impact on the Nasheed trial one way or the other, or if it would influence the court’s decision on granting further adjournments, as sought. It is unclear if the defence in the case of the co-accused would similarly seek adjournment of the trials against them, and would present interlocutory petitions, to press their respective cases – and take it up to the Supreme Court.
At least one of the co-accused, Brig-Gen Didi has put forth arguments that he was only taking orders and /or was responding to the request of the civilian police force, which needed assistance in apprehending Judge Abdulla, has the potential to demand his ‘discharge’ at an early stage in the criminal trial against him. Under the present circumstances, the four-week adjournment seems more like a judicial procedure than a political reprieve.
Ex-Minister Tholhath’s arguments too have issues of the kind, all going by media reports. It will however depend on how their defence team presents their case from now on – and how the trial court hears them out, either by making those arguments part of the on-going trial, or dealing with them independently and providing for possible appeals flowing from their rulings. In the final analysis, a lot will also depend on how the Nasheed defence presents its case, on the ‘criminal culpability’ the Head of State in acting on such matters as ordering the (‘illegal’) arrest of a person (incumbent Judge or otherwise’ – whether he would be personally culpable, particularly if the defence, for the sake of argument, could prove that he acted on sound advice and without provable malice or other motives!
(The writer is a Senior Fellow at the Observer Research Foundation)
About the author: Observer Research Foundation
ORF was established on 5 September 1990 as a private, not for profit, ’think tank’ to influence public policy formulation. The Foundation brought together, for the first time, leading Indian economists and policymakers to present An Agenda for Economic Reforms in India. The idea was to help develop a consensus in favour of economic reforms.