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#Maldives: Arrest of ex-President Nasheed: Legal and just? Or politically motivated and unjust?

#Maldives: The police arrest of former President Mohamed Nasheed this morning shocked the populace of this tiny nation, as it did those interested parties outside the country. The news spread through local and international media like wildfire. Nasheed was arrested this morning by Maldives Police Service while he was campaigning in the southern island of Fares-Maathoda. MPS say the arrest was in response to a court order, ordering MPS to produce Nasheed before court tomorrow to face criminal charges lodged by the country's independent Prosecutor General, for Nasheed's actions in the arrest and detention of the Chief Judge of the Criminal Court in January 2012. Nasheed's party, Maldivian Democratic Party, has called for nation-wide protests against the arrest. Nasheed and his supporters, local and international, allege that the case is "politically motivated" in an attempt to prevent him contesting the presidential elections in 2013.

The courts have three cases against Nasheed before them. Two cases before the civil court lodged by private individuals and one criminal case lodged by the Prosecutor General. Nasheed's arrest today was in relation to the criminal case.

The Prosecutor General has charged Nasheed and four others with crimes for the unlawful arrest and detention of Judge Abdulla Mohamed by the military under Nasheed's direct order as Commander-in-Chief. The Prosecutor General's case is built upon an investigation carried out by the Maldives Human Rights Commission, an independent commission appointed by the Parliament. The HRCM report, issued in August 2012, stated that Nasheed and the other four charged had, in varying degrees, been responsible for the arrest of the Judge. HRCM concluded that Nasheed was the "highest authority" culpable for the arrest of the Judge. At the time of arrest, the Prosecutor General, the HRCM, Judiciary, Judicial Services Commission, Lawyers' Association and even international legal unions condemned the arrest as illegal and unconstitutional. Leaked audios of various events at the time of arrest include Nasheed stating that he had indeed ordered the Judge's arrest and that he ordered thus because the Judge was corrupt.

There is no dispute, even from Nasheed or his legal team to the present day, that Judge Abdulla was arrested upon Nasheed's orders. The legal merits of the case, that is, whether Nasheed is guilty of a crime or not in the arrest of Judge Abdulla can only be decided by the court, something that the Prosecutor General is attempting to do. At the time of arrest, the Prosecutor General Ahmed Muizzu had told media that there can be no legal basis for the military arrest and indeterminate incarceration of any individual and that he would see the persons responsible brought to justice.

For Nasheed's arrest today, the MPS went armed with an arrest warrant from the court. Days before, the MPS had rejected a prior court order to produce Nasheed before the court, stating that MPS could not force an individual to appear before court unless it was accompanied by an arrest order in accordance with the law and implementing regulations. In response, the court yesterday issued a court order to MPS for the arrest of Nasheed and to produce Nasheed before court for the trial hearing scheduled for October 9th at 4pm Maldivian time.

The court order to MPS was issued yesterday, after Nasheed last week violated two court orders in relation to the trial. The first was an order to Nasheed to remain within the court's jurisdiction for the scheduled date of the trial. This is a standard practice against all, without discrimination, where there is risk that the defendant may not appear before the court. Legal experts report that under Islamic Shari'a, a criminal case cannot be carried out against an individual in absentia. Physical presence of the defendant is required at the hearing. A legal representative cannot act as an alternative to the defendant's presence. This is reportedly also enshrined in Maldivian criminal court regulations. Hence, according to legal experts, the trial cannot even begin in Nasheed's absence even if his legal team is present.

Ordering MPS to produce defendants before the court is standard practice and not discriminatory practice according to the court. This practice is followed when the defendant fails to attend trial hearings. The justification for the practice is that justice must be served for all parties, and that it is unjust for the proponent if a case were to be delayed indeterminately due to lack of attendance by the defendant.

Nasheed's second violation of a court order was his lack of appearance at the first hearing of the trial. Nasheed did not appear, neither did his legal team. Instead, Nasheed departed from the capital, Male', on a campaign trip organized to last two weeks. Nasheed's departure was telecast live on local media, which reported that Nasheed was departing in violation of a court order for him to remain on Male'.

In the days prior to the hearing Nasheed and his legal team had denounced the court as invalid and the case as politically motivated. His legal team told media that Nasheed would not attend the hearing for two reasons. The first reason was that Nasheed's party council had passed a motion that the party did not recognize the Judidicary as valid and hence would not oeby any orders by any court. It was argued that Nasheed, as Spiritual Leader of the party was the supreme head of the party and could not violate a decision by the party council. This position was later confirmed by Nasheed on local media.

The second reason given by Nasheed's legal team, and later confirmed on local media by Nasheed, was that the court at which the case had been lodged, Hulhumale' Court, was an invalid court created by the judicial administration in violation of the law. The Court had been created in Nasheed's term as President and had been functioning as a majistrate court up to today. All legal rulings by the court had been accepted by the Nasheed administration, the current administration, independent institutions such as the Prosecutor General and the public to date. In addition, the Supreme Court yesterday ruled that Hulhumale' Majistrate Court was a legally valid court, thus demolishing one legal pillar in the arguments raised by Nasheed's legal team.

On the charge of "political motivation", respected lawyer and MP for Kulhudhuffushi North Mohamed Nasheed has pointed out 10 legal points on the basis of which he concludes that there is littel room to conclude that the Prosecutor General's case against ex-President Nasheed is "politically motivated". These arguments were raised in Lawyer Nasheed's blog on October 2.

One of his key arguments is that, the criminal charges against Nasheed is not for an alleged political act, but for "illegal and unconstitutional acts" that Nasheed blatantly committed "in full view" and "on purpose".Secondly, Lawyer Nasheed points out, the prosecution is not by a current leader against a former leader on allegations raised by his administration.

Thirdly, in the criminal case against Nasheed, it is not a decision that can be taken by the current President whether to prosecute or not to prosecute, but rather a decision that can only be taken by the Prosecutor General under his mandate under the Constitution. Fourthly, the decision to prosecute has been taken by an independent body, the Prosecutor General, and that this decision is his alone under the Constitution.

Fifth, the PG can, under the Constitution, decide to prosecute even a President currently serving his/her term, and such decision can only be suspended until the end of term by the Parliament alone. A sixth reason given by Lawyer Nasheed is that the PG's decision to investigate the arrest of Judge Abdulla and to prosecute those responsible was taken and publicly announced within hours of the judge's arrest and that at the time Nasheed was the serving President.

Seventhly, Lawyer Nasheed notes that at the time that the PG took this decision the PG was not aware of which individuals were responsible for the crime, and hence his prosecution could not be seen as "politically motivated" against Nasheed as Nasheed nor any other responsible for the arrest were not even identified at the time.

The PG's request to the Human Rights Commission to investigate the arrest was issued within days of the arrest and that even then the ruling president was President Nasheed himself. Finally, the charges against Nasheed are based on the Human Rights Commission findings that Nasheed was culpable in the Judge's arrest.

As these legal arguments by a respected local lawyer and independent MP show, the case against former President Nasheed cannot be called "politically motivated" by any means. On the contrary, if the case is not pursued by the Prosecutor General, then the crime of illegally and unconstitutionally arresting Judge Abdulla Mohamed will go unpunished and justice will be denied to the judge. Further, should this criminal case against Nasheed be dropped by the PG just as he dropped a case of elections violations by Nasheed in 2008, then such act can be determined to be "politically motivated".

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