Sunday, 15 March 2015

Q&A: The Sentencing and Conviction of Former President Nasheed - Update

Issued By 

What has happened?

On 13 March 2015, the Criminal Court of the Maldives sentenced former President Mohamed Nasheed to 13 years imprisonment. Mr Nasheed was charged with abducting the Chief Judge of the Criminal Court, Justice Abdullah Mohamed, under section 2(b) of the Anti-Terrorism Act 1990. Section (b) defines “kidnapping, holding as hostage or apprehending someone against their will or attempts to kidnap, hold hostage or apprehend someone without their will” as an offence.

What has former President Nasheed been sentenced for?

The sentence relates to events in January 2012, during former President Nasheed’s tenure as President and Commander-in-Chief. On the night of 16 January 2012, Chief Judge Abdullah was abducted from his home by personnel of the Maldivian National Defence Force (MNDF) and his whereabouts were unknown for 72 hours. Judge Abdullah was subsequently detained for over 21 days in a military training camp on the island of Girifushi, without access to his family or lawyers.

Following Judge Abdullah’s abduction, the Maldivian High Court and Supreme Court issued orders for the release of the Judge; and the entire legal and judicial profession of the country, the judicial oversight body the Judicial Services Commission (JSC), and the office of the United Nations High Commissioner for Human Rights publicly called for the immediate release of the Judge. Furthermore, the European Union and other multilateral and bilateral stakeholders issued public statements and communicated to the Government of Maldives to immediately release Judge Abdulla.

The Criminal Court of the Maldives has now determined that the abduction and subsequent detention of Chief Judge Abdullah was unlawful and unconstitutional, and has convicted former President Nasheed for issuing the orders for the abduction.

Why was former President Nasheed charged with terrorism?

Mr Nasheed was charged with terrorism under section 2(b) of the Anti-Terrorism Act 1990, which defines ‘kidnapping, holding as hostage or apprehending someone against their will or attempts to kidnap, hold hostage or apprehend someone without their will’ as a crime. The charges under the Anti-Terrorism Act 1990, relate solely to the abduction of Chief Judge Abdullah in January 2012.

The Anti-Terrorism Act 1990 in not equivalent to many modern day anti-terror legislations which special considerations and procedures in handling suspects and the accused. The prosecution of former President Nasheed was in line with normal criminal procedure in the Maldives.

Indeed, to quote Toby Cadman, an international criminal law specialist and Partner at Omnia Strategy LLP (a legal firm the Government of Maldives has appointed to advise on strengthening the Maldives’ legislative framework):

"Former President Mohamed Nasheed was sentenced for ordering the army to arrest the Chief Judge of the Male’ Criminal Court, Judge Abdullah Mohamed. If the offence had occurred in the United Kingdom the former President could have been charged with an offence of kidnapping/false imprisonment, an offence which carries a maximum penalty of life imprisonment."

The charges against former President Nasheed changed: How? Why? Was he found innocent of the previous charges?

The Prosecutor General first filed charges against former President Nasheed for his connection to the abduction of Judge Abdullah on 15 July 2012. He was initially charged under Section 81 of the Penal Code 1968 which states that “it shall be an offence for any public servant by reason of the authority of office he or she is in to detain to arrest or detain in a manner contrary to Law, innocent persons”. Following months without significant progress being made in the case at Hulhumale’ Magistrate Court, on 17 February 2015, the Prosecutor General withdrew these charges for review, under powers conferred under Article 223 of the Constitution.

Following the review, the Prosecutor General utilized the discretion afforded by the Prosecutor General’s Act 2008 to amend and re-file the charges against former President Nasheed to kidnapping and abduction charges under Section 2(b) the Anti-Terrorism Act 1990. Charges were re-filed at Male’ Criminal Court on 22 February 2015.

In explaining the reason for the change of charges, the office of the Prosecutor General has publicly stated it is the belief of the Prosecutor General that the new charges better fit the circumstances of the abduction and detention of Chief Judge Abdullah. In the Prosecutor General’s opinion Section 81 of the Penal Code 1968 relates to an abuse of office by officers legislated with the authority and responsibility to make arrests, while the issue at stake in this case was the abduction of a civilian by a body (the MNDF) which has no legal basis to detain civilians for any cause. It was on this basis that Prosecutor General amended and re-filed charges under Section 2(b) of the Anti-Terrorism Act 1990.

Therefore, Mr Nasheed was not found innocent or exonerated of the initial charges. The Constitution and the Prosecutor General’s Act 2008 afford the Prosecutor General the ability to withdraw, review, amend and re-file the charges made against an individual in connection to an alleged crime.

Was president Nasheed the only person charged for their involvement in the abduction and detention of Chief Judge Abdullah?

No.

Throughout the legal proceedings four other individuals, including Mr Nasheed’s former Defence Minister, Chief of Defence Force and the Commander of the Male’ Area, have faced charges in connection with the abduction and detention of Chief Judge Abdullah. Throughout the proceedings, the cases against each individual have been processed identically. The Prosecutor General amended and re-filed the charges against all the accused indiscriminately, charging these four individuals under the under section 2(b) of the Anti-Terrorism Act 1990 in exactly the same manner as former President Nasheed.

Did the Government file and pursue the case against former President Nasheed?

No.

The Government of Maldives cannot file criminal charges against an individual. As per Article 220(a) of the Constitution of Maldives, charges were brought against former President Nasheed by the Prosecutor General. The post of Prosecutor General is nominated by the President and approved by Parliament. Indeed, the Prosecutor General who first filed charges against former President Nasheed was nominated by former President Nasheed.

The Prosecutor General’s decision to file charges was based on an investigation report by the Human Rights Commission of Maldives into the kidnaping of Chief Judge Abdullah. Following the unlawful abduction and detention of Chief Judge Abdullah, the Prosecutor General instructed the Human Rights Commission to open an investigation into the case in January 2012. It is important to note that this investigation was opened while Mr Nasheed was President, and legal proceedings would have continued against him even if he had remained in office.

Is the sentencing of former President Nasheed the result of a politically motivated campaign of the Government of Maldives?

No.

There is no conspiracy by the Government to unwarrantedly convict Mr Nasheed and prevent him from participating in the political arena in the future. Indeed, the charges that former President Nasheed faced in connection to the abduction of Chief Judge Abdullah did not prevent him from contesting the 2013 Presidential Election.

The Prosecutor General is entirely independent, and the Constitution of Maldives (2008) guarantees the full independence of the Judiciary from the Executive. The Government can neither interfere nor influence any decision of the Prosecutor General or the Judiciary. By virtue of the Constitution, former President Nasheed, like any other citizen of the country, has been entitled to a transparent and impartial trial in accordance with the rule of law.

The Constitution of the Maldives clearly establishes the structure of governance and the independence of the branches of state within the Maldives. All of the branches of state—without exception—function independently and without political interference, in full adherence to the separation of powers. Similarly, all legal cases—irrespective of the individuals involved—proceed fairly and transparently, in full accordance with the Constitution and the rule of law. The independence of the Judiciary and the fairness of due legal process have been as sacrosanct in the case against former President Nasheed as they would have been for any other Maldivian citizen. The Government of Maldives will continue to ensure the inviolability of a citizen’s right to a fair trial, insulated from political interference.

Did two of the presiding Judges in the case act as witnesses against former President Nasheed?

No.

During the fourth hearing former President Nasheed called the Prosecutor General and two of the presiding Judges in his case as witnesses for the defence. President Nasheed’s request was denied by the Bench on the basis that these officials could not be called as witnesses on evidentiary rules of relevancy and probative value.

Was former President Nasheed denied legal representation?

No.

Throughout the legal proceedings against former President Nasheed, his Constitutional right to legal counsel has been guaranteed. On 23 February 2015, when former President Nasheed was presented before the Judge of Criminal Court for a procedural remand hearing in relation to the amended and re-filed charges, he was given the opportunity to appoint legal counsel. His legal team were not present at this hearing because they had failed to register themselves as per regulations. As a result, the Criminal Court granted former President Nasheed three days, as per regulations, to appoint legal counsel. At the following four hearings in the case, former President Nasheed had legal representation.

Following the sixth hearing, however, Mr Nasheed’s legal counsel recused themselves, claiming that the proceedings were progressing in an uncharacteristically speedy manner and that they were not being provided with a sufficient opportunity with which to prepare their defence. The Court determined that all the documents relevant for the defence had been issued back in July 2012, and that no new evidence was being tendered since the change in charges. Additionally, the Prosecution recorded their ‘no-objection’ to allowing former President Nasheed further time to engage new legal representation. However, Mr Nasheed’s counsel failed to appear at any subsequent hearings.

The Court repeatedly reminded former President Nasheed of his right to appoint alternative legal representation. Indeed, the Bench advised Mr Nasheed that should he not appoint counsel, he would be considered as having waived his right to counsel. Nonetheless, the Bench advised Mr Nasheed that he  could engage new counsel at any time.

Has President Nasheed been mistreated, or subject to sub-standard conditions in Prison?

No.

Throughout the process, the Maldives Police service has followed standard procedure and due process. On 23 February 2015, a statement was issued by the Maldives Police Service confirming that Mr Nasheed was "granted all rights of an accused who is kept under detention and obligatory access was given to his family, party activists and legal counsel as well as officials of the Maldives Human Rights Commission."

In reference to Mr Nasheed’s conditions of detention in Maafushi Prison, Toby Cadman, an international criminal law specialist, said:

"Former President Nasheed is not in solitary confinement and is detained in a facility that would not only meet international best practices, but arguably far exceed any acceptable level".

Indeed, the Government of Maldives has facilitated visits to Mr Nasheed in prison by the ICRC, the Commonwealth Representative as well as the delegation from the OHCHR.

Additionally, on 21 June 2015, former President Mr Mohamed Nasheed was temporarily transferred to house arrest at his wife’s residence in Male’, on the advice of his physicians, in order that he may undergo routine medical tests in the Male’. Following routine tests at ADK Hospital, and the advice of Mr Nasheed’s physician, this period of house arrest was extended to a period of eight weeks, during which time he shall receive all necessary medical treatment.

Next steps: can former President Nasheed appeal?

Yes.

The Republic of Maldives has a three-tier court system, and the right to appeal is a fundamental right guaranteed by Article 56 of the Constitution of Maldives (2008). Former President Nasheed has been sentenced by the Criminal Court—the lowest tier of the Maldives’ court system—so in the event that former President Nasheed feels that justice has not been served, he has the right to appeal in the High Court and Supreme Court.

Could former President Nasheed receive a Presidential pardon? Or have his sentence reduced or lightened by a Presidential Act of Clemency?

Presidential clemency cannot be considered until the appeals process has been exhausted, however the Constitutional and laws of the Maldives do allow for clemency. In respect to the case of former President Nasheed, he cannot be pardoned owing to the nature of his conviction, but he could have his sentence reduced or lightened by a Presidential act of clemency.

The Pardon and Clemency Act 2010 determines the laws regulating the State’s ability to pardon a conviction or grant Executive clemency. Recalling that Mr Nasheed was convicted for terrorism offences under the Anti-Terrorism Act 1990, Section 5(a) item 3 of the Pardon and Clemency Act 2010 decrees that any persons convicted on terrorism charges (among selected other charges) cannot be pardoned. However, section 5(a) goes on to allow for persons convicted on terrorism charges to receive clemency in the form of either a shortened sentence (under section 4(c)), or a lightened sentence involving an alternative punishment (under section 4(d)).

Section 7 of the Pardon and Clemency Act 2010 mandates that clemency can only be granted once the convicted person has served at least a quarter of their sentence and made an official request for clemency. Hence, although former President Nasheed has written to President Yameen to request ‘leeway’ on his sentence, clemency could not be considered (or granted) until he has exhausted the appeals process and/or served one quarter of the duration of his 13 year sentence.

What is the Government of Maldives doing to address international concerns regarding the case?

The conviction and sentencing of former President Mohamed Nasheed has been the subject of significant media coverage and international concern. Throughout the process, the Government of Maldives has been committed to transparency in respect to the case and condition of Mr Nasheed, and committed to engagement with its international partners to address any concerns.

As such, the Government has facilitated delegations from the International Committee of the Red Cross (ICRC), the Commonwealth, and the Office of the UN High Commissioner for Human Rights to visit Mr Nasheed in prison.

Furthermore, as part of the Government’s Commitment to international engagement, President Yameen held a constructive telephone call with UN Secretary General Ban Ki Moon on 23 June 2015, in which he informed Mr Ban of recent developments in the Maldives. President Yameen also reiterated his pledge to ensure that a process of structured political dialogue with the opposition parties is realised.

The Government remains committed to keeping the international community informed of developments relating to Mr Nasheed, and is will continue to engage constructively with its international partners, in particular, the Office of the UN Secretary General, European Union and the Commonwealth.

This site uses some unobtrusive cookies to store information on your computer.

By clicking 'I understand' you are accepting the terms of our Privacy Policy. Learn more

I understand