retrospective legislation

The retrospective effect: When the Legislature faults and the public copies

Back in Law School, we were taught that ‘the law does not act retrospectively’. We religiously applied this maxim and got away with a lot of stuff, need I say.

To act retrospectively means to act in favour of the past.

In law, we assume that a person cannot be accused of committing a crime which at the time of commission was not classified as a crime. It is like correcting the wrongs of the past which actually weren’t wrongs because no law qualified them as wrongs or gave a punishment for those wrongs.

These positions apply in criminal law and rarely in civil law but some lawmakers opt to interpret this maxim in both civil and criminal jurisdictions.

This week, the following excerpt took place.

Him:            ‘Madams, we intend to charge your client for theft of company property.’

We:              ‘Mr. A, taking back his vehicle he had loaned to the company is not theft.’

Him:            ‘But he had given it to us. Taking it back without informing us is a crime. It is theft!’

We:              [Breathing and trying not to irk this furious employer because our client needs his benefits]

Him:           ‘You see, he has to return it.’

We:              ‘We understand. But your arrangement was that every party retrieves his or her property upon termination of contract. He simply followed up on this when you did.’

Him:            [Looks at me, puzzled.] ‘As per the new company policy and addendum, all assets used for company business belong to the company.’

We:              ‘Have you paid for those assets to become company property?’

Him:            ‘We have paid him a lot of money. It can compensate for the vehicle.’

We:              ‘For his services, not for his property.’

Him:            ‘It is the new norm.’

We:              ‘We understand that as well. No need to repeat it. But our client informs us and you have similarly confirmed that he did not sign the addendum and neither was his contract renewed to fit the new company policy.’

Him:            ‘You lawyers are…… (I cannot repeat that)…’

We:              [In my mind] ‘Until you need us……’

The concept:

Black’s Law dictionary explains this term under a similar wording, ‘retroactive law’.  It defines it as;

‘A legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.’

 It further says that a retroactive law,

‘…is not unconstitutional unless it (1) is in the nature of an ex post facto [law done after the act] law or a bill of attainder, (2) impairs the obligation of contract, (3) divests vested rights, or (4) is constitutionally forbidden…’

The Legislature

Also known as the lawmaking body, the Legislature ordinarily enacts prospective laws. Prospective laws are laws intended to be operational in futuristic sense. In instances where these honourable members enact a law to act retrospectively, we definitely will question their intentions.

Say, if Parliament enacts a law to extend an authority’s tenure of office, it is rightly assumed that that law becomes operational in favour of the next office tenant. Meaning, the incumbent office tenant continues to operate under the law/provision that put him/her in office but the new office tenant will assume that office under the revised/amended law.

When the current office tenant imagines he/she can extend his/her term of office under the new law, the act itself is a violation of the lawmaking process; which law we assume ought to be prospective.

Reader, you are at liberty to argue that extending office tenure under the guise of a constitutional amendment is not a criminal but civil act despite the above scenario. However, we reiterate that ‘the law does not [and should not] act retrospectively [unless it intends to correct a grave wrong against humanity]. [Emphasis ours.]

Our client will receive his benefits next week and yes, retain his vehicle. We await rationality from the lawmakers.


The law permits sharing.

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