RETROSPECTIVITY OF LAWS.

 

LEGAL PROVISIONS AND DECIDED CASES ON RETROSPECTIVITY OF LAWS

Duncan Abeynayaka – LLB, Attorney At Law

 

THE CONSTITUTION

ARTICLE 13 (6)

No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

 

INTERPRETATION ORDINANCE - PRESUMPTION OF NON RETROSPECTIVITY

6(3)     

Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected-

(a) the past operation of or anything duly done or suffered under the repealed written law ;

(b) any offence committed, any right, liberty, or penalty acquired or incurred under the repealed written law ;

(c) any action, proceeding, or thing pending or incompleted when the repealing written law comes into operation, but every such action, proceeding, or thing may be carried on and completed as if there had been no such repeal.

 

DECIDED JUDGEMENTS

01. THE COLOMBO APOTHECARIES COMPANY LTD VS E. A. W IJESOORIYA 73 NLR 05

A statute may be brought into operation after the date of its enactment and it can also, provided the language is clear and unambiguous, be made to operate before enactment.

 

02. BANDARANAIKE V. WEERARATNE AND TWO OTHERS (1978-79) 2 SRI L R. 412

COURT OF APPEAL

November 9, 1978

WIMALARATNE J.

Held: The Special Presidential Commission Law does not contain provisions expressly stated or implying by necessary inference that it is to operate retrospectively. Nor are the surrounding circumstances sufficiently strong to rebut the presumption against retrospectively. The law is prospective only and meant to apply to future events. The Warrant empowering the Commission to inquire into and report (with recommendations) on the conduct of persons during a period prior to the date of the enactment of the Law is ultra vires the Law and a Writ of Prohibition will lie against the Commissioners.

Discussed:

There is in English jurisprudence a definite leaning against, though there is no constitutional limitation upon, legislation which is made expost facto or is retrospective in its effect. This is based on the well known maxim of law "Omnis nova constitutio futuris formam imponere debet, et non praeteritis" (Coke 2 Inst. 95 — 292) meaning — "that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights." Or as Maxwell has stated: “It is a fundamental rule of English Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. The statement of the law contained in the preceding paragraph has been 'so frequently quoted with approval that it now enjoys almost judicial authority.' “Interpretation of Statutes (12th Ed. 215 -216.)

But it is clear that new law cannot always be solely prospective in its operation; it is almost certain to affect existing rights, and still more existing expectations. Although it may be intended to operate in the future it may infringe upon rights and duties which existed long before it came into being. This is particularly true of immovable property, which at some time or other must come within the ambit of every change in the law relevant to it. The rule of construction is, therefore, limited to this "a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless the effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be interpreted as prospective only." — Per Wright J., in re Athlumney 1898] 2 QB 547, 551.

Numerous judicial expressions from distinguished judges can be cited to the same effect. We reproduce below just a few of them:—

Willes J in Phillips v, Eyre (1870) L. R. 6 Q.B. 1.

"Retrospective laws are prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law. Accordingly the court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.”

Cockburn C.J., in Q. v. Ipswich Union L. R. Q.B.D. Vol. 11 (1876 — 77) 269

" I t is a general rule that where a statute is passed altering the law, unless the language is expressly to the contrary it is to be intended to apply to a state of facts coming into existence after the Act."

Sir Sailiol Brett M. R„ in Turnbull v. Foreman (1885) 15 Q.B.D. 234, 236.

"There is an old and well known rule with regard to the construction of enactments affecting rights . . . . it is that unless the language is clear to the contrary, an enactment affecting rights must be construed prospectively only, and not retrospectively so as to affect rights acquired before the Act passed."

Bowen L.J., in Reid v. Reid (1886) L. R. Ch. D. 402, 408.

“It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section (S.5 of the Married Women's Property Act, 1882) which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim (of Lord Coke) as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section even in an Act which is to some extent tended to be retrospective, than you can plainly see the Legislature meant."

One problem is, what are the rights and obligaitons to which the presumption applies? Attempts have been made to limit the doctrine to purely penal statutes which are concerned with crime and punishment. See A. L Goodhart in (1950) 66 L.Q.R., 314. But this appears to be to place too narrow a construction on the principle. Even in the United States eminent Judges have enunciated the same rule of construction as is accepted in Englsih Courts. A reading of the law reports would show that the true rule of both English and American'law is as stated by Maxwell:

"The rule has been applied chiefly in cases in which the statute in question, if it operated retrospectively, would prejudicially affect vested rights or the legality of past transactions or would impair contracts or would impose new duties or attach new disabilities in respect of past transactions." p. 218.

Williams v. William [1971] 2 All ER 764. 772

"I hope that it will not be thought presumptous, if I suggest that it is desirable that whenever possible a statute should indicate in express and unmistakable terms whether (and, if so, how far) or not it is intended to be retrospective. The expenditure of much time and money would be thereby avoided."

 

03. HANDUWALA DEVAGE SISIRA MUNASHINGHE VS CHAIRMAN AND MEMBERS OF DEBT CONCILIATION BOARD SC APPEAL NO.134/14

14.07.2020

E. A. G. R. Amarasekara J,

Discusssed:

It was held in Grocock Vs Grocock (1920) 1 KB 1 DC at page 9 that “In the absence of an expressed intention that a statute shall have a retrospective operation, the rule is nova constutio futuris formam imponere debet non praeteritis.”( Every new rule ought to prescribe a form for future, not for past acts; a new law ought to impose form on what is to follow, not on the past.)

Even on behalf of the Original Creditor, while referring to Grocock Vs Grocock (1920) 1 KB 1 DC, R Vs Chandra Dharma (1905) 2 KB 335 and Director Public Prosecution Vs Lamb (1941) 2 All ER 499 , it was submitted that “a statute ought not be held retrospective in its operation, unless the words are clear, precise and quite free from ambiguity”. It was further submitted that statutes have retrospective effect when the declared intention of the legislature is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions.

In this regard following decisions and texts have also been brought to the attention of this court.
“The rule against retrospective operation is a presumption only. It may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it.” -- Vide page 225 of the 12th Edition of Maxwell on Interpretation of Statutes by P. St. J. Langan referring to Sunshine Porcelain Potteries Pty. Ltd. V Nash [1961] A C 927.

Held:

The aforementioned decisions and authorities indicate that there is no strict prohibition for retrospective legislation but there is a general presumption in favour of the rule against retrospective legislation. Generally, Statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. However, a statute can be construed to give retrospective effect when the intention of the legislature to give retrospective effect is conspicuous by the clear, precise and unambiguous language used or by the strong attending circumstances. Thus, as law stands today it is correct to state that no statute shall be construed to have a retrospective operation to affect substantive rights of a subject unless such a construction appears very clearly in the terms of the statute, or arises by necessary and distinct implication.

As per the references quoted above from Maxwell on Interpretation of Statutes and Bindara’s Interpretation of Statutes:

• A court shall not give a retrospective operation to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without’ doing violence to the language of the enactment.

• If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed prospectively

• The intention to take away a vested right without compensation or any saving is not to be imputed to the Legislature unless it be expressed in unequivocal terms.

• Furthermore, when a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed.

• Statutes which have the effect of impairing contracts and affect vesting rights must be strictly construed and in interpreting such laws the Courts must lean against giving retrospective effect to their provision.

• Unless there is something in the language of an Act showing a contrary intention the duty and the practice of the Court of Justice is to presume that the Act is prospective and not retrospective.

 

04. NIMAL SENARATNA, VS THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA CA 126/2001

26.08.2014

A W A SALAM, J (P/CA)

HELD: Significantly, the amendment to the Penal Code effected by Act No 29 of 1998 came into operation with prospective effect from 4 June The offence is said to have been committed, on 18 April 1998. This means that he had been charged, found guilty, convicted and sentenced to an offence committed in terms of the Law which had come into operation nearly after one and a half months after the commission of the offence.

 

SEE: N. Ekanayake Vs Hon. Attorney General, CA Writ Application No. 58/2012

25.04.2016

A.H.M.D. NAWAZ, J,