Legal Literacy - Learn what it is retroactive principle, how the retroactive principle applies, and how the regulations regarding the retroactive principle are extensively arranged in Indonesian national law and international law. Read the following article to understand all of the above questions.
Definition of the Retroactive Principle
Literally, the retroactive principle is defined as a legal principle that changes the legal consequences of actions taken or the legal status of facts and relationships that existed before a law was enacted or promulgated.
In Latin, the retroactive principle is called ex post facto, which means "from something done afterwards." Black's Law Dictionary defines retroactive as extending in scope or effect to matters that have occurred in the past. Furthermore, Black's Law Dictionary adds law “that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.” While Congress often considers legislation that would apply retroactively, the Constitution imposes some limited constraints on such laws. Meanwhile, Merriam-webster Dictionary defines retroactive as extending in scope or effect to a prior time or to conditions that existed or originated in the past.
The same understanding regarding the retroactive principle can also be seen in the Cambridge Dictionary that retroactive (of a law or other agreement) having effect from the time before the law or agreement was approved. Based on the several definitions above, a simple understanding of the retroactive principle can be drawn, namely a legal principle that allows a legal rule to apply retroactively or backwards before the law applies.
Retroactive Principle V. Legality Principle
The retroactive principle is often considered the opposite of the legality principle, which is generally a fundamental principle in a country based on law. The provisions regarding the prohibition of retroactivity are explicitly regulated in Article 1 paragraph (1) of the Criminal Code Criminal Law (KUHP) which states that (1) An act cannot be punished, except based on the force of existing criminal law provisions.
In Latin terms, the principle of legality is called Nullum delictum, nulla poena, sine praevia, legi pounali which means no crime, no criminal punishment without prior criminal law. As for the principle of legality in the perspective of the rule of law, it is a fundamental principle in a democratic rule of law. In fact, Article 28I paragraph (1) of the 1945 Constitution explicitly stipulates that the retroactive principle is one of the human rights that cannot be reduced in any form, as is the right to life (non-derogable rights).
History of the Prohibition of the Application of the Retroactive Principle
Historically, the prohibition of retroactive law enforcement in Indonesia was initially regulated in Article 6 of Algemene Bepalingen van Wetgeving voor Nederlands Indie (AB) S.1947-23, which reads “De wet verbindt aleen voor het toekomende en heeft geen terug werkende kracht” (the law only binds for the future and does not apply retroactively) and then Article 1 paragraph (1) of the Wetboek van Strafrecht (KUHP). Furthermore, the prohibition of retroactive law enforcement is also regulated in Article 14 paragraph (2) of the 1950 UUDS, which reads “no one shall be prosecuted to be sued for punishment or sentenced, except for a legal rule that already exists and applies to him”. The same provision is also regulated in Article 28I paragraph (1) of the 1945 Constitution as amended.
The regulation regarding the prohibition of retroactive law is also regulated in various international provisions. The Rome Statute of the International Criminal Court 1998, for example, in Article 22 (Noellum Crimen Sine Lege) of the International Criminal Court, explicitly rejects the regulation regarding the principle of retroactivity, where “A person shall not be criminally responsible under this statute unless the conduct in question constitute, at the time it takes place, a crime within the jurisdiction of the court”.
Another provision is regulated in Article 23; “A person convicted by the court may be punished only in accordance with this Statute”
Article 24 (Non Retroactivity ratione personae); “No person shall be criminally responsible under this statute for conduct prior to the entry into force of the statute”.
Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocols also regulates matters relating to the prohibition of retroactivity, stating No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
Article 15 of the International Covenant on Civil and Political Rights also explains that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
Article 11 paragraph (2) of the United Nations Universal Declaration of Human Rights also regulates the prohibition of retroactivity, where No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. In fact, Article 9 (Freedom from Ex Post Facto Laws) of the American Convention on Human Rights also regulates the same thing, namely:
No one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offence was committed. If subsequent to the commission of the offence the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.
If traced further back in history, the enactment of the Principle of Legality as opposed to the retroactive principle is actually an influence from the Bill of Rights of Virginia in 1776 in the United States. In the Bill of Rights, it is only stipulated that no one may be prosecuted or arrested except by and by events contained in the law.Thus, this principle is considered to provide protection against arbitrary prosecution and arrests by the authorities against a person.
According to Moeljanto, the spirit of the Bill of Rights was brought by General Lafayette to France through Article 8 of the Declaration Des Droits De L'Homme Et Du Citoyen in 1789 which reads: "No one can be convicted except by the force of a pre-existing law" and included in Article 4 of the French Penal Code under the Napoleonic Government and subsequently adopted by the Netherlands through the Wetboek van Straftrecht and then entered by concordance through Article 1 paragraph 1 of the Indonesian Criminal Code.
This writing is an excerpt from the book:
If Literasi Hukum Indonesia Friends want to read it in full, you can buy the book through the following link:
- Bryan A. Garner, Black’s Law Dictionary,Ninth Edition,
(St. Paul : Thomson West, 2009) - https://www.merriam-webster.com/dictionary/retroactive
- https://dictionary.cambridge.org/dictionary/english/retroactive
- Moeljatno, Principles of
Criminal Law, Fourth Printing, (Jakarta: Bina Aksara, 1987)
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