Retrospective Effect of New Procedural Law on Pending Cases

RETROSPECTIVE EFFECT OF NEW PROCEDURAL LAW ON PENDING CASES RETROSPECTIVE EFFECT OF NEW PROCEDURAL LAW ON PENDING CASES By Muhammad Shafiq Civil Judge Ist Class, Rahimyarkhan. The general proposition of law containing the presumption against retrospective applicability of law has been clearly stated by careful writers and judges. Halsbury's Laws of England explains the meaning of the expression `retrospective statute` in Vol.36 at page 423 as follows: "the Courts regard as retrospective any statute which operates on case or facts coming into existence before its commencement" 2. There is no fundamental difference between retrospective and ex post facto law. The former expression is used in respect of civil matters and the latter in respect of criminal matters which by their nature are more serious. 3. The people do not mind changes in law, if only the procedure is altered without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not impossible if the essential difference is kept in mind. According to Salmonds Jurisprudence, 12th Edition of 1966 at page 128. "The law of procedure may be defined as that branch of the law which governs the process of litigation . All the reside is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter." "If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice." 4. What is a vested right? According to the Oxford English Dictionary, "vested" means "clothed, robed, dressed especially in ecclesiastical vestments. A close examination of these meanings and explanations reveals that vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. By `vested right` can be meant no more than those rights which under particular circumstances will be protected from legislative interference (unless it is clearly intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions. 5. Although the Legislature can legislate prospectively and retrospectively, such power is subject to certain constitutional and judicially recognized restrictions. According to the canons of construction, every statute including amendatory statutes is prima facie prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis (which means 'a new law ought to regulate what is to follow, not the past'). As per Osborn: Concise Law Dictionary, new law shall not apply retrospectively unless it is given retrospective effect either expressly or by necessary implication. In other words, a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred.(PLD 1963 SC 322) wherein a five member bench of the august Supreme court of Pakistan held as under:- "The Court must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute". Reliance is placed upon the Molasses Trading case PLD 1970 SC 514. "It is a well-settled principle of interpretation that there is a strong presumption against the retrospectively of a legislation which touches or destroys the vested rights of the parties. No doubt the Legislature is competent to give retrospective effect to an Act and can also take away the vested rights of the parties, but to provide for such consequences, the Legislature must use the words which are clear, unambiguous and are not capable of any other interpretation or such interpretation follows as a necessary implication from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein must be construed strictly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation". 6. The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 581, as follows:- "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislation intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions". 7. The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. 8. The time at which a presumption arises against retrospectivity is thus to be determined by the circumstances which call for protection against injustice. "It is a well-recognized principle in the construction of statutes that they operate only on cases and facts which come into existence after the statutes are passed, unless retrospective effect is clearly intended." 10. The reference to "facts" along with "cases" in the above quotations should be noted. Further it should be noted that not commencement of cases, but only their existence is mentioned, because no technicalities are involved in the idea. 11. The general principle with regard to the interpretation of statutes is that "if the mater in question is a matter of procedure only", the provisions will be retrospective. "On the other hand, if it is more than a matter of procedure, if it touches a right in existence at the time of passing of the Act", then the legislation will not operate retrospectively, unless the Legislature has either "by express enactment or by necessary intendment" given the legislation retroactive effect. 12. The same idea was expressed in the well known and famous case Colonial Sugar Refining Company Ltd. V. Irving (1905 AC 369) with reference to a pending case and even a retrospective change in the forum of appeal was held to be bad. The judicial Committee observed that "The reason for the above view, to my mind, is that while abolition of an appeal takes away a right entirely, a change in the forum of appeal equally creates distrust on the one hand and opens the door to uncertainty on the other. The judicial Committee has further explained that "if the matter in question" be "more than a matter of procedure", that is to say, "if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the Act would not operate so as to take away that right. The words "touches a right in existence" and the words" at the time of passing of the Act", should be noted. The relevant time is stated to be that of the passing of the Act, and protection is granted to a "right in existence".. 13. In the case of In re: Joseph Sache & Co. Ltd.,(1875) 1 Ch. D 48) similar protection was recognized against alteration of existing rights of the parties in "pending actions". The references in these two leading judgments to the pendency of cases were appropriate to the facts which were considered, but the general proposition of law which emerges after eliminating that peculiarity, is that rights of the parties arising from facts which come into existence before the passing of a statute, should be presumed to be unaffected by it, unless it is expressly or by necessary implication made retrospective. 14. This principle has also been fully adopted by the august Supreme Court of Pakistan court in the cases of The State v. Muhammad Jamil (PLD 1965 SC 681) and Muhammad Alam v. The State (PLD 1967 SC 259). 15. Even if there is not a statutory protection, yet the principle has by virtue of all presumption of fair-play effectively checked encroachments on existing rights by the all powerful British Parliament, unless they were found to have been clearly and unambiguously so intended. What is the nature and strength of this presumption? I conceive that its origin is to be found in the conscientious abhorrence that all just men have for the injustice that is inherent in changing the legal implications of a situation to the disadvantage of those who would otherwise benefit by a right which existed at the time of the change. In Midland Railway Company V. Peye (142 ER 419) Elre, C.J. said: "Those whose duty it is to administer the law very properly guard against giving to an act of Parliament a retrospective operation, unless the intention of the Legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment." 16. As a manifestation of more or less, a natural or instinctive sense of justice, or perhaps an instinctive repugnance to what one feel to be injustice, the Courts have held that laws do not " impose new liabilities in respect of events taking place before their commencement'. In Bowling V. Camp(128 L T 342) and in Henshall V. Porter (1923) 2 K B 192), a bar created by the Gaming Act, 1922 against the institution of suits, was held not to prohibit the continuance or even commencement of actions where liability was created before the Act came into force. 17. Since the above way of thinking is the consequence of a sense of aversion for injustice, it is immaterial "whether the law is changed before the hearing of the case at first instance or whilst an appeal is pending".. In support of the above view, see Re: A Debtor, exparte Debtor(1936 Ch. 237). 18. In England, the basic sentiment of revulsion against injustice is strengthened by the jealously of Courts to preserve their jurisdiction uncontaminated by extra-judicial consideration. They regard all considerations, whether political, administrative or even legislative, if they are not embodied in the law itself, as subordinate, if not entirely extraneous, to the judicial outlook. 19. In the United States of America, emphasis on the constitutional separation of power is added. In the words of the American Jurisprudence, 16th Volume, page 771, Ar.429. "The position has been taken, however, in some jurisdictions that when an action is once commenced, jurisdiction of purely a judicial question, and it is unconstitutional, under the doctrine of the separation of the powers of Government, for the Legislature to attempt to usurp the judicial function by interfering legislation to oust the jurisdiction of the Court" 20. One more consideration which appeals to me is that law abiding members of society regulate their lives according to the law as it exists at the time of their actions, and they expect the law to be steadfast and reliable See Hughes and others v. Lumley and others(1854) 4 E & B 358). They assess and weigh the consequences according to the demands of existing law, including the requirements implicit in the existing system of law, and are entitled to feel, cheated if the law later lets them down by taking away or reducing their rights, or increasing their burdens. As pointed out by Willes, J. in Philips v. Eyre(22 L T 869) at 0. 876. "Retrospective laws pre no doubt 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." 21. In America in Calder v. Bull (1798) 2 Pall 386) Justice Holmes of America has emphasized that law should be reliably ascertainable. This is important for law abiding persons, so that they may arrange their lives accordingly, but it is equally, if not more, important for wrong-doers in order to know their chances in law. The learned judge has said in his address delivered in 1897 that "if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms of deductions, but that he does want to know what the Massachusetts or English Courts are likely to do in fact. I am much of his mind. The prophecies of what the Courts will do in fact, and nothing more pretentious, are what I mean by the law." 22. The question of applicability of any law with retrospective effect has been dealt with by the august Court in the case of Gul Hussan and Co. v. Allied Bank of Pakistan (1996 SCMR 237) wherein after examining plethora of case law, Mr. Justice Saleem Akhtar, as he then was, observed that Statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or its effects the existing rights or causes injustice or prejudice. The relevant para from the said judgment is reproduced herein below:- ".. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless" by express enactment or necessary indictment" retrospective operation has been given.(Muhammad Ishaq v. State PLD 1956 SC(Pak) 256) and (State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice the substantive right. In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). 23. The same view was expressed in Ch. Safdar Ali v. Malik Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali(1972 SCMR 173), which was followed in Bashir v. Wazir Ali(1987 SCMR 978), Mst. Nighat Yasmin v. N.B of Pak.(PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi(1994 SCMR 1007). From the principle enunciated in these judgments it emerges that statue providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice." 24. According to Halsbury's Laws of England: Volume 44 (4th Edition) a declaratory statute is a statute which either resolves doubts on a particular point or restates the law on a particular subject. This definition of a declaratory statute leads to the irresistible conclusion that a declaratory provision does not purport to change the law. Notwithstanding their placement the amendments in question cannot be termed as declaratory for the simple reason that they have created new obligations and changed the existing law considerably. It is true that the statutory increase in the wages was not incorporated in the Ordinance but the existing law did not suffer from any legal defect, therefore, the amendments are not purely remedial. Be that as it may, the amendments cannot be held to be retroactive in operation even if the same are presumed to be remedial because they tend to affect vested rights. In any even giving retrospective effect to the amendments would tantamount to nullifying the binding effect of the dictum laid down in PLD 1988 SC 1, which squarely applies to the facts and circumstances of the cases. 25. In this context, reference may also be made to Federation of Pakistan v. Muhammad Siddiq(PLD 1981 SC 249), Chairman, PIAC V. Nasim Malik PLD 1990 SC 951), Gul Hussan v. Allied Bank of Pakistan(1996 SCMR 237) and Muhammad Afzal v. Karachi Electric Supply Corporation(1999 SCMR 92). 26. It is well-settled where the main object and intention of statute are clear, it must not be reduced to a nullity by the draftsman's unskillfullness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. (Maxwell, 11th Edition, page 221). 27. It is pertinent to mention here that "the initial presumption is that an absurdity is not intended by the law-maker. (PLD 1964 Dacca 756, PLD 1962 Lah. 878). In case of doubt as to the intention of Legislature, an interpretation which leads to manifest absurdity should, if possible, be avoided. (PLD1964 Lah 101 & PLD 1966 Azad J & K 38). If proposition accepted, leads to absurd result, there is always a presumption against such absurdity. (PLD 1959 Quetta.1). It is well-settled by now that "the Courts are not only competent to modify the language of the Act to give effect to the manifest and undoubted intention of the Legislature, but the Courts are under statutory obligation to supply the omission with a view to prevent the defeating of the very object of the Act". (PLD 1965 Pesh.65). They can fill, in the gaps in a piece of legislation, where a plain construction would lead to absurd results. (PLD 1964 Dacca. 773 and PLD 1961 SC 119). However, initially the Court is to presume that an absurdity was not intended by the law-maker". (PLD 1966 Azad J&K 38). See also The interpretation of Statutes' by M. Mahmood. 28. Law cannot be said to be retrospective unless it takes away or impairs a vested right acquired under existing law or creates some obligation or disability with regard to closed and past transactions.(PLD 1966 Karachi 480). However, retrospective operation of statute- cannot diver rights already vested in the absence of clear provision to that effect". (PLD 1973 Lah.114). 29. Even otherwise it has been observed by the Supreme Court quoting Maxwell in PLD 1965 SC 681 that where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment with regard to procedural laws, says Maxwell at p.217 of his Book the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view. 30. It is settled principle of law that if during the pendency of proceedings the existing law has repealed or amended, the matter will be decided under the provision of repealed law as if law has not repealed. 31. A provision creating or establishing a forum for getting redress is a procedural matter; therefore, its change is retrospective. But it is not retrospective if such an amendment touches the existing right or deals simultaneously with procedure. The general principle is that every right has a remedy. It is also a general principle that where two proceedings or two remedies are available under the law, one of them must not be taken as operating in derogation of the order. An in fragment of an existing legal right is always actionable in a civil Court unless its cognizance is expressly or impliedly barred. A suit is said to be expressly barred when it is barred by an enactment for the time being in force. Where a right of action exists, a suit is maintainable to enforce that right independently of the special remedy provided by law. There is, however, one qualification for this rule. Where a right is created by statute and a method of enforcing the right or of redressing grievance caused in the exercise of enforcement of the right, is pointed out by the statute creating such right, then the general remedy of suit will be impliedly barred. In AIR 1955 Mad 378 and AIR 1952 Cal 879, similar view was adopted by indian courts. 32. Bindra's book page 587 is also referred to wherein under the heading Right of a suitor in Court' it is written that:- "The right of a suitor to have his pending application disposed of by a competent Court is a matter of right and not a matter of procedure. The Civil Procedure Code is not confined to procedure. The provisions of the Code are regulations dealing with the jurisdiction and governing the procedure of the Courts in India. But jurisdiction and procedure are distinct: jurisdiction does not come under the description of procedural matter. The right of a party to institute a suit or to file an appeal in a particular Court must, in view of the decision of the Privy Council in 1905 A C 369 (Colonial Sugar Refining Co. v. Irving) be regarded as a substantive right and not merely a matter of procedure or procedural law." 33. Page 588 of Bindra's book is also referred to wherein under heading jurisdiction it is written that:- "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 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". 34. It was held in Narayanaroju v. Parimi Venkatanarayana( A I R 1941 Mad. 506) that "An amendment is generally prospective, unless the Legislature has expressly made it otherwise. One of the exceptions to it is that an amendment is generally retrospective if it is procedural. An exception to the latter proposition is that it is prospective if it deals with or affects not only procedure but also vested rights. For example, the law of limitation is ordinary procedural; therefore, its amendment is ordinarily retrospective; but if it were to interfere with or impair or imperil a vested right, it would be prospective. The right to sue is not a procedural matter; therefore, it cannot ordinarily be taken away after it has accrued to a plaintiff." 35. Even Article 264 of the CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 protects the pending lis if through repeal or amended law, any vested right of the citizen is infringed. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the Constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect. 36. Section 4 of the West Pakistan General Clauses Act, 1956 is reproduced as under for further explanation: - "(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless different intention appears, the repeal shall not:- revive anything not in force or existing at the time at which the repeal takes effect; affect the previous operation of any enactment so repealed or incurred under suffered there under; or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. 37. What the Courts will do tomorrow depends a great deal on the answer to the question: This is why, to my mind, the Privy Council held in Colonial Sugar Co.(supra) that there is no difference between changing the forum of a remedy and altogether abolishing it. A past and closed transaction must be taken to have been concluded according to the law in force at that time, and the ultimate legal consequences of a legal duty or a legal right arising there from must according to justice Holmes, means to the parties to it, "a prophecy". Civilization is in justice bound to respect that `prophecy`, because the need for such prophecy is a creation of a civilized society. The above discussion is intended to explain the meaning and purpose of the principles that support the presumption against retrospective or ex post facto legislation. They show that pendency of proceedings is not an indispensable condition of the presumption that exists against retrospectively, but the case of the Sugar Refining Co. (supra) has attracted the most attention in India and Pakistan, because it, was decided by the Privy Council. In almost every important case of India and Pakistan that case has been cited as the basic authority with the result that pendency of proceedings has been treated as sine qua non of the presumption. 38. I am also fortified by the case law PLD 2016 Supreme Court 398, PLD 1969 Supreme Court 187, 2011 SCMR 1254, 2002 SCMR 39, 2003 SCMR 271, PLD 2001 Supreme Court 38, 2001 SCMR 103, PLD 1965 SC 681, PLD 1991 SC 197 1996 P.Cr.L.J 586, 2003 CLC 1001, PLD 1994 Lahore 170, PLD 1982 Peshawar 172, 2011 CLC 609, PLD 1970 Azad J & K 35 wherein our superior courts also acknowledge the principle that "if the mater in question is a matter of procedure only", the provisions will be retrospective. "On the other hand, if it is more than a matter of procedure, if it touches a right in existence at the time of passing of the Act", then the legislation will not operate retrospectively, unless the Legislature has either "by express enactment or by necessary intendment" given the legislation retroactive effect. Even inconvenience, distrust, uncertainty and injustice are also the considerable points" 39. For example in view of latest amendment in Section 67 vide The Canal & Drainage (Amendment) Act, 2016, following legal issue may arised: Whether jurisdiction of Civil Court pertaining to the matters given in new subsection (2) of 67 vide The Canal & Drainage (Amendment) Act), 2016 is barred or not? 40. The Provincial Assembly of the Punjab passed THE CANAL AND DRAINAGE (AMENDEMENT) ACT, 2016 on 17.02.16 which was assented on 22.02.2016 and published on 23.02.16. Before discussing in detail about the effect of the stated amendment in the pending suits, it will be appropriate to reproduce old as well as new provision of Section 67 for ready reference. Section 67 (Old Provision) "Jurisdiction under this Act of Civil Courts--- Except where herein otherwise provided, all claims against the Provincial Government in respect of any thing done under this Act may be tried by the civil courts but no such courts shall in cases pass an order as to supply of canal-water to any crop sown or growing the time of such order" Section 67 (New Provision) "Jurisdiction-(1) Subject to subsection (2), all claims against the Provincial Government in respect of anything done under this Act may be tried by the civil court of competent jurisdiction. (2) A court shall not assume jurisdiction in any matter in respect of anything done, being done or purported to be done under section 20, 20-A, 20-B, 20-C, 31, 32, 32-A, 33, 34, 35, 36 and 45 of the Act and shall not pass any order interrupting any proceedings under the Act." 41. Newly enacted section 67 although has ousted jurisdiction of civil court in certain matters provided therein but it applies only on the actions done after present enactment not on pending actions or suits because there is no specific provision provided in The Canal & Drainage (Amendment) Act, 2016 pertaining to its retrospective effect. Section 1 of the Act ibid says about " at once" enforcement which means that it will operate from the date of its assent. Even the provision itself and Preamble do not indicate its retrospective effect. So old section 67 has already given vested rights to irrigators in way of suit to challenge orders of canal authorities which cannot be affected by new provision. 42. Concluding the above discussion, it can be said if the mater in question is a matter of procedure only", the provisions will be retrospective. "On the other hand, if it is more than a matter of procedure, if it touches a right in existence at the time of passing of the Act", then the legislation will not operate retrospectively, unless the Legislature has either "by express enactment or by necessary intendment" given the legislation retroactive effect. Even inconvenience, distrust, uncertainty and injustice are also the considerable points because the pending cases in civil courts may be at different stages such as summoning, evidence and arguments etc new procedural amendment in law may cause inconvenience, distrust, uncertainty, injustice and costs amongst the parties to the pending cases.