In Tofazzal Hussain v. East Pakistan, [PLD (1961) Daccca 389] the High Court of East Pakistan summarised the position as follows :
- An enactment is presumed to be prospective unless the express provision in the enactment or the necessary implication of such provisions clearly indicate that it should have a retrospective effect.
- If the words are ambiguous and not clear and if their implication is also not clear, a retrospective effect will not be given.
- If by express provisions or by necessary implication an enactment is clearly retrospective in effect courts are bound to give it such effect.
- As a corollary to the above proposition, a new enactment is presumed to be in applicable to matters pending in a court of law when the law is altered during their pendency; but if the effect of the enactment is such that it has retrospective effect and applies to pending litigations, courts cannot refuse to give it such effect even though the consequences thereof appear to be unjust and hard.
- When from the language used in a statute it is clear that it should have retrospective effect and should apply to pending proceedings, it should require express provisions to save its operation upon pending cases. Mahmudul Islam, Interpretation of Statutes (1st Edition), p. 254
There is a common law presumption that legislative enactments do not operate retrospectively.
A retrospective law is a law that looks backward or on things that are past. A retrospective law in legal sense is one that takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty or attaches a new disability in respect of transactions o considerations already passed. [Corus Juris], Vol. 59, pp. 1158, 1159
Statutes apply only to cases and facts which came into existence after they are enacted unless there is a clear intention to give them retrospective effect. Nabi Ahamad v. Govt of West Pakistan, 22 DLR (1970) 86 It is a well settled rule of interpretation that ordinarily a statuary provision is prospective in its operation and retrospect effect cannot be given to it in the statute itself. Either expressly by or implication. Mrs Masuda Khatun v. Buramah Estern Ltd., 34 DLR (1982) AD 29
The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operate retrospectively. [Dickson J.] Gustavson Drilling (1964) Ltd. v. M.N.R., (1977) SCR 271
As retroactive legislation frequently interferes with vested rights, the court presumes that, if the Legislature intended to interfere, it would have said so clearly. A statute will not be given retroactive construction unless it is clear that the legislature intended such a construction. Hornby Island Trust, 1988 CanLII 3143 (BC C.A.)
The presumption against the retroactive operation of statutes, therefore, may only be rebutted by clear language in the statute. If the wording of an enactment is such that the Legislature must have intended to prescribe a new legal regime to a set of facts entirely concluded prior to the coming into force of the enactment, the enactment is retroactive and the presumption against retroactive operation is rebutted. CNG Producing Co. v. Alberta (Provincial Treasurer), (2002) ABCA 207
As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters. R. v. Bickford, (1989) OJ No. 835, para 9
One principle which is fundamental to our legal system is the general rule of statutory interpretation against retroactive interference with vested rights. A significant exception to this principle is that generally it does not apply to procedure or evidence. These principles are deeply rooted in our legal system. R. v. Engum, (2002) BC J No. 161
If an enactment is solely procedural, it may be applied retroactively. If a statute deals merely with the procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. It is only if it be more than a matter of procedure that is if it touches a right in existence at the passing of the new Act, that the aggrived party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act. State v. Muhammad Jamil, 20 DLR (1968) 315
If an enactment contains substantive elements, the fundamental principle against retroactivity applies. The following relevant principles emerge as established by the weight of authority unless the language used plainly manifests in express terms or by clear implication a contrary intention: (a) a statute divesting vested rights is to be construed as prospective, (b) a statute, merely procedural, is to be construed as retrospective, (c) a statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective. R. v. Firkins, (1977) 37 CCC (2d) 221
Statutes dealing with substantive rights:
Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Close attention must be paid to the language of the statutory provision for determining the scope of the retrospectively intended by the legislature. However, the language used is not always decisive and it cannot be said that the use of present tense or present perfect tense is decisive of the matter that the statute does not draw upon past events for its operation. Mahmudul Islam, Interpretation of Statutes (1st Edition), p. 257
All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectively if they effect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective effect is intended. Hence, the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the court has to decide whether in the light of the surrounding circumstance retrospective effect should be given to it or not. M/s Punjab Tin Supply v. Central Government, (1984) AIR SC 87
The Statutory Provisions are prospective unless there is clear indication in the Act itself. That they are retrospective. The plaintiffs cannot be disentitled from the suit land on the basis of sec 3 of the Act as they already acquired title before the Act came into operation. Badsha(MD) Miah & others v. Soleman Nessa Bibi, 43 DLR (1991) 646
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. The presumption against retrospection applies in general to legislate of a penal character, and to be presumed that a statute creating a new offence, or extending an existing one, is not intended to render criminal an Act which was innocent when it was committed and that a statute increasing the penalties for existing offences is not intended to apply to offences committed before its commencement. Md. Khalilur Rahman v. State, 31 DLR (1979)
Statutes dealing with procedure:
Presumption against retrospectively is available in case of substantive rights, but not against statutes or provision which only alter the form of procedure or the admissibility of evidence or the effect which the court gives to evidence. A law relating to forum and limitation is procedural in nature whereas laws relating to right of action and right of appeal even though remedial are substantive in nature. The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the court. He has only the right of prosecution of defence in the manner prescribed for the time being by or for the court in which the case is pending, and if by an Act of parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. Maxwell, Interpretation of Statutes (12th Edition), p.222
The rule that “a statute relating to procedure operates retrospectively unless otherwise provided in the statute’ is not applicable when the statute in question affects the jurisdiction of a Court. Provisions relating to jurisdiction are more than matters of procedure. They touch a right in existence at the passing of the statute. N. S. Bindra, Interpretation of Statutes, p. 782
