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What will be the outcome for sidelining the court’s order?

Bisham, Anil Yameen, Azleen

The original Dhivehi article was published on Avas.mv website on 4th February 2018.

The following is a loose translation:

It has been more than 48 hours since the supreme court issued a court order. However, the state hasn’t implemented the order to release 9 political leaders who are in detainment. Every authority also ends their brief after saying that the order is being implemented. What we are witnessing is supreme court’s order being ignored.

With different excuses, what’s standing between implementing the order is attorney general and prosecutor general. The police have also said that the order will be followed based on the advice of them. However, to implement the order of the supreme court, are their advice necessary?

Former Chief Justice Ahmed Faiz said the attorney general and prosecutor general has no direct role in implementing the order. The due process of the order will be to follow according to what is stated in the order. Faiz said that it is mandatory for all the authorities that the order applies.

Therefore, what will be the penalty for the heads of those authorities that the order applies, when they disobey an order?

In 2012, following the arrest of Judge Abdulla Mohamed, prosecutor general filed a case in supreme court, the court then ordered the immediate release of the judge. However, the administration of that time didn’t follow the order. Eventually, the leader of the government of that time Mohamed Nasheed did fully take the brunt of it. For being convicted of arresting and keeping Judge Abdulla Mohamed unlawfully, he was sentenced to 13 years. The same sentence also came to Defense Minister of that administration Tholhath Ibrahim*. Malé Area Commander Brigadier General (Rtd.) Ibrahim Didi was also charged in relation to the case.

Even now the situation is the same. Supreme court has issued an order. The president himself has no authority to disobey and protest against it.

Police obstructing protestors

Police obstructing protestors

In the Article 77 of the Rules of Court, it is very clear. In that Article it states that, in a decision made by a court, as long as that court or an appellate court doesn’t exempt it, any court’s decision will be something mandatory to adhere for the leaders of the government, the parliament, judiciary, heads of independent institutions, government institutions, people in government posts, the military, the security forces over the police and the citizens of the country.

When it is very clearly stated in that Article, and since supreme court’s order is not something that can’t be appealed, implementing the order is compulsory. Lawyer Maumoon Hameed said, ‘to discuss the court order is not something that is permitted or recognized by the law.’

Attorney general and prosecutor general has been trying to engage in discussions claiming that the order has legal issues. President Abdulla Yameen has also called Chief Justice Abdulla Saeed. However, there is no law that says that such a discussion can be allowed with the Chief Justice. And there is no law or any article of the law which says that the state can remain without implementing the order, and then go on to raise doubts about it.

Maumoon Hameed said that withholding people without a court order is kidnapping. That when the supreme court has issued the order to release of the 9 political detainees, there won’t be any legality to hold them as hostages. Therefore, whoever is involved in keeping them hostage will face criminal charges.

Yameen at a rally

President Yameen at a rally

‘People directly involved in holding the people court has ordered to be released, including the PG and AG and discussing it is committing a criminal offence. Each of them has to individually hold responsibility,’ said Maumoon Hameed.

Holding hostage is an act of terrorism. Therefore, if they are holding a person hostage unlawfully, they can be charged with terrorism. Under the Counter-Terrorism Act, a 10 or 15-year jail term can be given. In the current situation, that responsibility should be taken by the heads of the implementing authorities. Moreover, can also be tried under the penal code. It is said under the penal code, it is a crime to keeping people as hostages in a way that restricts their freedom and threatening to do things by force. Under the Article 140 of that law, it is stipulated that withholding people illegally is a crime. And following an illegal order, although the law forbids to do so, the police officers and employees of the correctional service shall be held responsible and tried.

President Yameen said yesterday that the court order will be implemented, however, he needs time. And he also said that those instructed to be released are major criminals. Based on the current situation, those 9 detainees are not convicted. The sentences are now nullified by the court order. Conversely, when a court order is issued, the constitution instructs to implement it immediately. Therefore, when such is the case, questions are raised on how it can be constitutionally allowed, to say that it will take time.

For the president to say that the leader of the country is the highest implementation authority of the administration, is not an excuse to snub the apex court’s order. The law is shaped, to prevent abuses and disrespecting court orders, and the long arm of law will reach the abusers.

*Tholhath was sentenced to 11 years

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