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Saturday, 12 February 2011

Retrospective legislation

A colleuage from Malaysia, Noor, has asked me to start this thread. Noor says:

I checked the Malaysian Constitution and confirmed that the Art 66(5) provided as follows:

"A Bill shall become law on being assented by Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect".

In our jurisdiction, as far as I know - apart from transitional provision, to give a Bill a retrospective effect, we just put a date earlier than the publish date. For example, a bill is passed and published on 1.1.2011 but the coming into force the the Bill is on 1.12.2010. That is retrospective to us (as simple as that!).

I just wonder, Art 66 provides only for retrospective - and not retroactive. Does it mean that we cannot make laws to operate retroactively - or is it okay as retrospective would cover retroactive.

Do you have any opinion on that? Or is it similar to your countries? I have been searching for malaysian cases for this issue, but unfortunately, i couldn't find any.

4 comments:

  1. Ronnie MB, Falkland Islands AG's Chambers10 March 2011 at 20:07

    In the Falkland Islands, our Interpretation and General Clauses Ordinance contains the following provision:

    21 Publication and commencement of laws
    (1) Nothing in section 20 shall be construed as permitting any written law of the Falkland Islands to come into operation until such time as it has been published in the Gazette.
    (2) If so expressed therein, a written law of the Falkland Islands may have effect retrospective from the date of its publication in the Gazette, but-
    (a) no act or omission which did not constitute an offence at the time it was done or made shall retrospectively become an offence; and
    (b) no written law of the Falkland Islands shall render any offence committed before that law came into operation punishable more severely than it would have been if that law had not been made.

    I have not looked into the history of the provision but the similarity of the first part of that to the Malysian provision suggests that they have come from the same source at some stage.

    I must admit to having never considered the possibility that retroactivity might be different from retrospectivity. However, I think I am content to rely on the provision for retrospective legislation as being sufficient without a specific reference to retroactivity.

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  2. The difference between retroaction and retrospection is tricky, particularly because the terms are used by different people to mean different things.
    The only conceptual distinction - which is not sufficiently clearly matched by the linguistic distinction to make it helpful - is between laws which look back at past events and give them new consequences for the future, and laws which look back at past events and give them new consequences for the past; the former is not (as a rule) retrospection / retroaction at all, in the sense of attracting the presumptions of law that apply to retrospective law.
    I do hope others will tell us all what they think about this - retrospection is an issue of enormous importance that affects the whole legislative drafting community around the world; and although every jurisdiction that I know about has a presumption against retrospection at least to some extent, the presumptions are often honoured more in the breach than the observance - I am advising at present on a proposed new law which seems bewilderingly retrospective and yet it still seems likely that it will be passed.

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