The High Court tonight rejected the prosecutor general’s (PG) appeal of former President Mohamed Nasheed’s conviction on terrorism charges.
Following a preliminary hearing held yesterday to decide whether to proceed with the appeal, the three-judge panel ruled unanimously that it could not accept the case because it was not filed by Nasheed.
The court said the PG’s appeal does not fit the circumstances specified in article 43 of the Judicature Act in which decisions of lower courts can be appealed.
Verdicts can be appealed based on procedural violations and if reasons exist to believe either that it was inconsistent with the law or if errors were made in interpreting or applying the law, the court noted.
The PG filed the appeal seeking a review of the proceedings at the lower court to ensure that Nasheed’s constitutional rights were not violated, including the right to adequate time and facilities for the preparation of his defence, to communicate with and instruct legal counsel of his own choosing, to examine the witnesses against him, and to obtain the attendance and examination of witnesses.
The High Court said none of the constitutional rights were violated during Nasheed’s trial in March.
Despite Nasheed’s lawyers maintaining they were unable to file the appeal within a shortened 10 day period due to the criminal court’s failure to provide a full transcript of proceedings, the High Court also said Nasheed could still appeal if he was unable to do so after the deadline for “valid reasons”.
Members of Nasheed’s legal team have reacted to the High Court’s decision on social media.
deciding to reject PG’s appeal,HC ruled tht there were no due process violations in PN’s crim crt trial,while HC didnt adhere to due process
— Hisaan (@hisaanhussain) September 10, 2015
In “rejecting” the appeal HC heard all the arguments of PG and gave the judgement PG wanted. https://t.co/k7nHTEi0U0
— Safa Sharyf (@safasharyf) September 10, 2015
…in conclusion,HC has clearly undermined due process & effectively circumvented any chance of seeking a judicial remedy for PN from HC!
— Ibrahim Riffath (@ibriffath) September 10, 2015
Rule of law
Nasheed was found guilty of terrorism in March over the military’s detention of criminal court chief judge Abdulla Mohamed in January 2012. The 19-day trial at the criminal court was widely criticised over its apparent lack of due process.
The PG office had meanwhile said in a statement yesterday that the appeal was filed to “show that the Maldives remains steadfast in upholding the rule of law,” address Nasheed’s complaints over the trial, and show that Nasheed has not been deprived of the right to appeal.
“The prosecutor general’s office appealing the case does not imply that [we] agree with all of the concerns raised by President Mohamed Nasheed,” the statement read.
The statement also noted that Nasheed had filed a petition at the UN working group on arbitrary detention, seeking a judgment declaring his imprisonment arbitrary and unlawful. A ruling is expected in October.
But the PG office “believes that if there are questionable matters in the criminal court trial, it could be resolved at the appeal process.”
The statement also insisted that Nasheed did not have any obstacle to filing an appeal at the High Court.
Speaking at a press conference today, Nasheed’s high-profile international lawyer Amal Clooney had said that Nasheed intends to pursue an appeal as yesterday’s hearing suggested that the High Court was “seemingly open to the idea of an appeal” despite the expiry of the 10-day appeal period in March,
Clooney explained that Nasheed’s lawyers were unable to file an appeal due to the criminal court’s refusal to provide the trial record.
“The door was slammed in their face because the court record that they needed in order to file that was not provided until after the deadline had expired. That’s why they could not appeal until now,” she said.
If Nasheed does appeal, Clooney said he must be “provided with a full record of what happened in the court so that he can mount a full and effective appeal of his conviction.”
“This hasn’t been provided to date. He has been provided with summaries that his local counsels have indicated are not complete. And he needs the full electronic copy or record of what happened in the court,” she said.
“In addition, international trial observers should be allowed into the court, there should be no re-arranging of the court room to limit it to sixteen people. And international counsel should be allowed to participate.”
Yesterday’s preliminary hearing was “an extremely peculiar situation,” she said, as the PG office did not acknowledge any flaws in the criminal court trial and was not seeking to overturn the 13-year jail sentence.
While the state prosecutor had said he was presenting arguments on behalf of the defence, Clooney said that it is “an elementary proposition in any criminal trial that the defence cannot rely on the prosecution to make any arguments on their behalf.”
“So President Nasheed does not accept that the prosecutor’s arguments and submissions constitute any form of appeal on his behalf,” she said.
Her colleague Jared Genser meanwhile told the press that the criminal court trial showed that the Maldivian judiciary is “neither independent nor impartial.”
“So while we are going to file this additional appeal, we are under no illusion that it is highly unlikely that the High Court will consider an application based on the Maldives constitution, Maldivian law and its obligations under international law,” he said.