Giving retrospective effect to the right of appeal can potentially cast a shadow of prejudice over past and closed transactions.
These observations were made by Supreme Court’s Justice Hassan Azhar Rizvi in a 13-page additional note on the Practice and Procedure Act 2023 case. His disagreement primarily pertains to the retrospective right of appeal as stipulated in section 5(2) of the new law.
"We must be acutely aware that such a provision, while intended to ensure justice and fairness, can potentially cast a shadow of prejudice over past and closed transactions, as well as the rights and interests that have been secured under the judgments of this court," observed Justice Rizvi.
"To my understanding, the law must concerned with today's rights and not yesterday's. A legislature cannot legislate today concerning a situation that occurred 30 years ago and ignore the march of events and the constitutional rights accrued in the course of that period. That would be most arbitrary, unreasonable, and a negation of history," he observed.
"Today's equals cannot be made unequal by saying that they were unequal 30 years ago, and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations, and constitutional consequences cannot be tampered with that way."
The notion of granting a right of appeal against previously decided cases is not to be taken lightly, as it carries profound implications that extend far beyond the immediate legal proceedings, observed Justice Rizvi.
The legal system, he argued, is built on a foundational principle of 'finality', observed Justice Rizvi, adding that when a court renders a decision, it offers the parties involved a sense of closure and certainty, allowing them to plan their future actions and make informed decisions based on the judgment's legal precedent.
"This foundation of predictability is vital not only for the parties but also for the broader stability of our legal framework. It is, therefore, imperative that we proceed cautiously when considering appeals against earlier decisions."
"We must recognise the delicate balance that exists between the pursuit of justice and the preservation of past transactions and previously accrued rights. Granting the right of appeals retrospectively must be done judiciously and only when compelling circumstances require it, as it threatens to disrupt the settled expectations of those who have acted in good faith based on the court's prior rulings."
He added that there is no denying the fact that every sovereign legislature possesses the right to make retrospective legislation. "The power to make laws includes the power to give it retrospective effect."
"However, normally, the legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights of the parties. On a plain reading of the language of the afore-quoted provision, particularly, sub-section (2) of section 5 of the impugned Act, it becomes abundantly clear that the legislature’s intent is to provide the remedy of appeal against orders passed by this court, even predating the enactment or commencement of the impugned Act."
"It is a settled principle of law that the right of appeal is a substantive right; hence, the retrospective expansion thereof raises significant apprehensions, as it threatens to disrupt the finality and certainty that has historically been attributed to judicial pronouncements."
Justice Rizvi believed that such disruptions may have deleterious ramifications, not only in terms of the orderly administration of justice but also with respect to the stability and predictability of legal decisions.
"For these reasons, my disagreement with the majority and reservation to the extent of the provision of the right of appeal retrospectively present a palpable concern, as it would offend the fundamental rights of the parties because it has the potential to open a veritable floodgate of claims and appeals pertaining to past transactions and concluded legal matters," observed Justice Rizvi
He further believed that the legislature in the Practice and Procedure Act 2023 has merely declared that the right of appeal shall be available to an aggrieved person against whom an order has been made under Article 184(3) prior to the commencement of this Act.
"No express provision was made in the impugned Act to the effect that the new dispensation providing a right of appeal will also affect and reopen cases adjudicated by this court under the existing law prior to the date of the passing of the impugned Act. To resolve this uncertainty, the matter inherently falls within the purview of judicial interpretation, necessitating a determination by this court as to whether the impugned Act is also applicable to the cases that have long been concluded and regarded as past and definitively closed transactions."
He expressed his considered view that there is a potential for adverse consequences to the parties affected by this retrospective provision, which must be carefully weighed.
"It is worth mentioning here that it is incumbent upon the legislature to balance the scales of justice in its pursuit of providing the right of appeal while simultaneously safeguarding the fundamental right i.e. right to property, office, etc., and the principles of legal finality."
"I have no doubt in my mind that balancing these competing rights/interests is an inherent duty of this Court as well, as it strives to maintain the delicate equilibrium between justice and the safeguarding of long-established rights."