by Fathuhulla Ismail, Counsel
Supreme Court of the Maldives on 20 March 2017 has decided ADK Trade and Shipping Pvt Ltd v State (Maldives Customs Services), its case number 2015/SC-A/10.
The case decided the effect and application of legislations passed prior to the current constitution. It discussed the Article 61, 66, 91 and 274 of the Constitution and law number 6/2008. The piece of legislation (a mere announcement – however which was regarded as a valid form of regulation under the previous constitution) involved in the issue was validated as law before the commencement of the Constitution.
The appellant claimed that the surcharges charged by Maldives Customs Services violated Article 97(b) of the Constitution, arguing that the Customs was levying a tax. The Customs Services argued that the charge was not a tax, is merely a fee charged for a service rendered.
The Court’s Decision.
In simple terms, the Court decided the following:
1. The laws (including all types of legislation as defined 1998 Constitution) enacted prior to current constitution is not automatically repealed as per Article 66 of the current constitution unless such law violates any fundamental right stated in the current constitution.
2. The requirement in Article 61 of the Constitution does not require a specific type of publication of the law, regulations, policies, and orders requiring citizens to compliance. Hence, general notice, given before or after the current constitution fulfills this requirement.
3. Although there is no act of the parliament, the government can charge a fee for the services rendered, provided such fees or charges are levied under a regulation or a policy.On the definition of Surcharge: the definition of “tax” is stated in Article 274 of the Constitution.
4. On the definition of Surcharge: the definition of the “tax” stated in the Article 274 of the Constitution does not indicate surcharges are included in that definition. Further reasoning was given on this issue stating that the references which have defined the surcharge do not limit it not to be a fee charged for a service. Hence, a surcharge can be levied for a service provided, with the consent of the applicant of the service.
You can view the judgment here.