Can Law Be Applied Retrospectively?

In April, the Transport Minister came under fire from netizens for not applying the amendment of the Road Transport Act 1987 retrospectively to address cases like Sam Ke Ting’s involving the “basikal lajak” or modified bicycles phenomenon. However, the Minister emphasised that though the law has been revised, the amendments cannot be applied retrospectively. So, what is retrospective law and what is the Malaysian position regarding retrospective law?

Retrospective law is generally defined as law which attaches new consequences to an event that occurred prior to its enactment. It removes or impairs any vested right acquired under existing laws or creates a new obligation in respect of past transactions or considerations. In short, it alters future legal consequences of past actions and events. This is not desirable because as per the words of Wilis J in the English case of Philips v Eyre, ‘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.’

With this in mind, it should be noted that the Malaysian position on retrospective law can be seen in the words of Chua J in Public Prosecutor v Peter Tham Wing Fai whereby no statute, penal or civil, shall be construed to have a retrospective operation unless such a construction clearly appears in the terms of the Act or arises by necessary and distinct implication.  As such, as a general rule, laws are not retrospective unless expressly stated otherwise. This thus begs the question, “which law operates retrospectively and which does not?”

Let’s start with law that does not operate retrospectively. Article 7(1) of the Federal Constitution provides protection from retrospective criminal law and protection from greater punishment for an offence than what was prescribed by law at the time it was committed. These safeguards are illustrated in PP v Mohamed Ismail where the defendant was charged with drug trafficking which was punishable with life imprisonment or death sentence under the relevant law. While his trial was pending, the law was amended to provide for a mandatory death penalty. The court held that the enhanced penalty could not apply to the defendant’s case as it was enacted after the commission of the offence.

Moving on to law that operates retrospectively, although protection from retrospective criminal law is provided under Art 7 as previously mentioned, it should be noted that Parliament has plenary power to make retrospective criminal and civil law vide Loh Kooi Choon v Government of Malaysia. However, it must steer clear of Art 7 when making such retrospective criminal law. Besides, due to the wording of Art 7(1), the protection against retrospective law does not extend to procedure for trial. As such, the making of retrospective criminal law in procedural matters is permissible in Malaysia. This is supported by authorities like Teo Cheng Leong v Public Prosecutor which show that apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. Moreover, by virtue of s20 of the Interpretation Acts 1948 and 1967, it is clear that subsidiary legislation may operate retrospectively to any date which is not earlier than the commencement of the parent Act.

In conclusion, criminal law may not be applied retrospectively by virtue of Art 7(1) of the Federal Constitution. However, as long as Parliament steers clear of Art 7, it may amend civil or criminal laws as it sees fit. On the other hand, procedural laws and subsidiary legislation may operate retrospectively.