by Fathuhulla Ismail, Counsel
The Elections Commission of the Maldives filed a case with the Supreme Court against Fareedha Umar, a candidate of Jumhooree Party for the Local Council Elections, seeking to annul her candidacy.
The subject matter of the case concerns the retrospective application of the law, specifically, the application of Section 10 of Law Number 4/2013, (Third Amendment to Political Parties’ Act). That section prohibits a person from contesting in an election in any capacity other than capacity in which they initially competed in their party primary. The Amendment was ratified and published in the Gazette on 6 December 2016.
Fareedha contested the primary held for local council elections on 4 November 2016 under the Maldivian Development Alliance (MDA) ticket. However, she later, on 22 January 2017, submitted her application to the Elections Commission to run in the Local Council Elections as a candidate of Jumhooree Party.
The Court’s Decision
In simple terms, the Supreme Court decided as follows:
1. No law shall be applied retrospectively. The principle of “lex prospicit non respicit” (non-retrospective law) is a general principle of law which applies to all areas of law, criminal or otherwise.
2. In criminal law retrospective application of the law is entertained only when such application benefits the accused. This principle is envisaged in Article 59 (a) of the Constitution.
3. Unless clearly specified to the contrary, a non-penal law should not be applied retrospectively, in any way.
4. Although, Fareedha contested in the primary of MDA prior to the enactment of the Third Amendment and since the election for which she sought the concerned ticket was scheduled for a date after the enactment of the Third Amendment and since she had applied for the candidacy to run as a candidate of Jumhooree Party after the enactment, the application of the rules specified in Third Amendment does not violate the principle of non-retrospective law.
You can view the judgment here.