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#Maldives: ex-President Nasheed's arrest vs Judge Abdulla's arrest: Tit-for-tat or due legal process?

#Maldives: The police arrest of ex-President Mohamed Nasheed yesterday sparked greater international coverage than the military arrest at the crux of the criminal case against Nasheed: Nasheed's arrest of Chief Judge of the Criminal Court Abdulla Mohamed. In contrast, in Maldivian social media, the military arrest of Judge Abdulla on Nasheed's order as Commander-in-Chief drew greater condemnation than yesterday's arrest of Nasheed. Although Nasheed's party, the Maldivian Democratic Party (MDP), repeatedly called for nation-wide protests yesterday, there was lacklustre response on th streets even in the MDP strongholds of Male' and Addu City. Despite concerted efforts by the MDP leadership and MPs from MDP on MDP aligned media station Raajje TV and on Twitter and Facebook, the support was lukewarm with most supporters making do with just a "LIKE" but stopping short of condemnation.

The sharp contrast in yesterday's MDP response and that on February 8th when MDP came out in support of Nasheed's claim of a coup d'etat raised the question of whether MDP supporters too accept that yesterday's arrest was one of due legal process and not a tit-for-tat exercise by the current government.

The conditions of arrest are sharply different. Nasheed's yesterday was carried out by police under a court warrant to arrest and produce Nasheed before court today at 4 pm to face criminal charges for the arrest and detention of Abdulla Mohamed in January and February this year. The country's independent Prosecutor General Ahmed Muizzu has pressed criminal charges against Nasheed and 4 other individuals as culpable for the judge's arrest. Nasheed had steadfastly refused to appear before th court, claiming the court illegal and the charges "politically motivated", his refusal leading to the arrest as the defendant's appearance is mandatory for the trial to proceed.

In contrast, there was no warrant for Judge Abdulla's arrest nor were there any criminal charges against the Judge. Under the Armed Forces Act (2008), the military has no civilian role except where a written request for assistance is made by the police. According to then President Nasheed’s Press Secretary Zuhair (Juha) who spoke to media that day, the arrest of Justice Abdullah has nothing to do with a police summons issued that day. Hence, the reason for the military's involvement (even if illegal) could not be shown by the Executive or the military.

Judge Abdulla was held in military detention at Girifushi Military Training Camp for 22 days. His release was only secured with the transfer of power to current President Mohamed Waheed Hassan when Nasheed resigned on February 7th. The military did not provide any information on the arrest, not even to the Parliament when questioned in Committee. The period of detention, the charges (if any) against the Judge were never communicated to his lawyers, family or the public.

The only information on the arrest were statements by MDP MPs and leaders at political rallies. MDP Deputy Leader and Member of Parliament for Seenu Feydhoo constituency Alhaan Fahmee declared at a party rally that he and other party members would not allow Justice Abdullah to attend the Criminal Court the following day. MDP Parliamentary group member (MP for Thaa Atoll Thimarafushi Constituency) Mohamed Mustafa declared at an MDP gathering on January 18th that the party would ensure that “Justice Abdullah Mohamed will never sit on the Bench again”.

Nasheed is held at the police detention centre on Dhoonidhoo Island, the abode decreed by Nasheed for Dr. Mohamed Jameel Ahmed, arrested by Nasheed first in the chain of events which led to Judge Abdulla's arrest. The MPS have told media that Nasheed would be released immediately after he is produced before the court hearing this afternoon. The conditions of his arrest and the warrant under which it was carried out have been clearly communicated by the police.

The contrast between the two arrests continues in terms of access to family and access to legal representation, the latter mandatory under the Constitution. In the first 36 hours of the Judge's arrest, he was held incommunicado and without access to legal representation or to family. The Human Rights Commission of Maldives was not given access to Nasheed until three days later. The Judge's whereabouts were unknown to anyone except the military and the Executive leadership. Justice Abdullah’s lawyer MP Ibrahim Riza (MP for Kaaf Atoll Guraidhoo constituency) told media that the authorities refused to disclose the whereabouts of his client.

In Nasheed's case, the police have kept Nasheed's family and public updated on Nasheed's location. Immediately after his transfer to Dhoonidhoo Detention Centre, Nasheed was given access to his family and his legal team. Tweets by Nasheed's brother Nazim Sattar during the visit to Dhoonidhoo indicate that Nasheed can move freely on the premises and that he was given the quality accommodation and meals. Nasheed's lawyer Hisaan Hussain told Raajje TV last night upon her return from meeting her client, "we were able to meet President Nasheed and to discuss legal issues with him". There were no negative statements either by the family or lawyers that expressed any dissatisfaction with the conditions of his arrest and detention.

The Human Rights Commission of Maldives, an independent institution, was immediately given access to Nasheed. Nasheed however refused to meet them even though HRCM members went to Dhoonidhoo last night. No reason was given for his refusal. 

The reason for arrest is also a sharp contrast between former President Nasheed and Chief Judge of the Criminal Court Abdulla Mohamed. Judge Abdulla was arrested on 16th January 2012 by military personnel who broke into his home at 11.23 pm. Immediately after the arrest, at 0042 hours on January 17th, Nasheed's spokesperson Zuhair told media that Judge Abdulla was arrested because the Judicial Service Commission (JSC) has taken far too long to take disciplinary action against Judge Abdullah despite finding him in breach of judicial ethics. Zuhair further stated that the delay in taking action against Justice Abdullah by the JSC was against the spirit of the Constitution. It should be noted however that at that time there was a Civil Court order restraining the JSC from taking any action against Judge Abdulla until the Court decides the matter.

Haveeru Daily reported that the President Nasheed’s cabinet secretary Hisaan Hussein (now a member of his legal team on the criminal case) had sent a letter the then Commissioner of Police Ahmed Faseeh sometime in the evening of 16th January 2012. In the letter the President’s Office alleged that Justice Abdullah was under certain influence of politicians and requested the police to take action. Immediately after that, the Minister of Home Affairs Hassan Afeef under whom the MPS operates, sent a letter to the military requesting Judge Abdulla's detention alleging that the Judge was "a threat to national security". Minister Afeef's letter did not give any details of the justification for his claim that Judge Abdulla was a "threat to national security".

In former President Nasheed's case, the courts issued a summons to Nasheed to appear before court for the start of a criminal case lodged against him by the Prosecutor General. It further issued an order requiring him to stay within the court's jurisdiction for the trial. Nasheed violated both orders and departed for the South on a campaign trip. Further his legal team declared at a press conference that Nasheed would not appear before the court on any matter alleging that the court (Hulhumale' Majistrate Court) was illegal. Further, they declared that Nasheed would not obey any judicial orders alleging that the Judiciary was corrupt. At his departure in violation of court orders, Nasheed repeated the same two reasons in a media interview telecast on public TV.

A further summons was served upon Nasheed while he was on campaign. Again, the response was the same. The court next issued an order to the Police to produce Nasheed to court. The police refused on legal grounds that they could not forcibly bring any individual unless an arrest warrant was also issued. The court reissued the order together with an arrest warrant. Each step was publicised on media, giving Nasheed ample time to appear before the court or to notifiy it of his acceptance of the court order and intention to appear before it. None of this was done by his legal team or by Nasheed. Instead, both Nasheed and MDP leaders continued to declare in party rallies and to local and international that Nasheed would not attend the trial. Nasheed's yesterday's arrest ensured, with the trial's first hearing re-scheduled for 4 pm today.

The events leading to Judge Abdulla Mohamed's arrest were fundamentally different to Nasheed's arrest. Judge Abdulla was arrested amidst a political fight between Nasheed and his growing political opposition. The specific events began on January 15th 2012 when the Deputy Leader of the opposition Dhivehi Qaumee Party Dr. Mohmed Jameel Ahmed was arrested at 8.30 pm without a judicial warrant as required under Article 46 of the Constitution. Lawyers immediately challenged the arrest on the ground that it contravened the Constitution. In the court hearing, the police admitted that they did not have a case and they were simply following orders to carry out the arrest. Chief Judge of the Criminal Court Judge Abdulla Mohamed presided at the hearing and declared Dr. Jameel's arrest unconstitutional.

The following day the police issued summons to Dr. Jameel and Judge Abdulla. Dr. Jameel went to police station where he was re-arrested on the same grounds, grounds declared legally invalid by Judge Abdulla the previous night. Judge Abdulla applied to the High Court seeking a ruling that under the constitution and applicable laws that the police did not have the power to issue police summon to a judge. The High Court upheld his appeal. The Chief Justice of the Supreme Court also sent a letter to the Commissioner of the Police expressing concern over unlawful summons to a sitting judge. Civic protests followed, unending till the judge's release.

Nasheed did dot cease in his efforts to arrest Judge Abdulla. Towards midnight of 16th January 2012 members of Nasheed's party MDP began gathering outside Judge Abdulla’s private residence. Shortly after that military arrived and broke into the Judge's residence and forcefully took the judge into custody. For over three days MNDF refused to disclose where Justice Abdullah was being held. Lawyers and family members were denied access.

The Government steadfastly refused to release Justice Abdullah despite orders from the Criminal Court, the High Court and the Supreme Court. It also ignored calls for the immediate release of Judge Abdulla by the Prosecutor General, Human Rights Commission, Law Society, Judicial Service Commission and opposition parties.

On January 17th, the Prosecutor General announced that as per the Criminal Court order demanding prosecution against those involved in the unlawful arrest of Justice Abdullah Mohamed, he would charge those who arrested Justice Abdullah unlawfully. He further announced that had requested the Human Rights Commission of the Maldives to investigate the case. The MDP leadership responded by harshly criticising the PG at a party rally that night and began a petition for the removal of the PG from office.

In an interview to Haveeru on January 18th, the Prosecutor General said that he would take action against those responsible for the unlawful arrest of Justice Abdulla Mohamed even if he (the PG) is removed from office by the Parliament. The Prosecutor General was responding to the threats issued by the ruling MDP officials of his removal.

In the light of the above, there is little room to allege that Nasheed's arrest was a retaliatory measure or even that it was politically motivated (see RN blog on whether Nasheed's arrest was politically motivated or not). The lacklustre response by MDP supporters and on social media to MDP's repeated calls for nation-wide protest may be an indicator that the general populace accepts the arrest as due legal process and legally justified. It remains to be seen whether this could spell the turning point for MDP grass roots to look for another leader.

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