The right not to be sued based on retroactive law is a human right which cannot be reduced in any circumstances as stipulated under Article 28 letter I paragraph 1 of the Indonesian Constitution Year 1945 (“1945 Constitution”):
“Right to live, right not to be tortured, right not to be enslaved, right to be recognized as a person before the law, and right not to be sued based on retroactive law is a human right that cannot be reduced in any circumstances.”
This principle is known as the Non-Retroactive Principle, which is a principle that prohibits a law to be effective retroactively.
The rationale for the prohibition is:
- To guarantee individual freedom from the tyranny of the authorities; and
- Criminal law shall be used as a psychological force (psychologische dwang theory from Anselm von Feuerbach). With the existence of criminal punishment against people who commit a criminal act, the authorities try to ‘influence’ the potential perpetrators not to commit a criminal act.
Though the basic principles of the law rely on the principles of legality, in several provisions of regulations, this legality principle does not fully apply. This means that the retroactive principle can be applied, although only in certain cases. The retroactive application is allowed if it is in accordance with Article 1 paragraph (2) of the Indonesian Criminal Code, which states:
“If there is a change in the laws and regulation after the act is committed, then the most favorable provision for the accused shall be applied.”
A regulation shall contain retroactive principles if it:
- Declares a person to be guilty of committing an act at a time when the act is committed does not constitute a penal offense; and
- Imposes a heavier penalty than the one applicable at the time the penal offense was committed (Article 11 paragraph (2) of the Universal Declaration of Human Rights).
The retroactive principle must not be used unless it has fulfilled four cumulative conditions, namely:
- The crime in the form of a severe violation of human rights or a crime that has the same level of cruelty and destruction;
- The trial is held internationally, not nationally;
- The trial is an ad hoc trial; and
- The national legal condition of the country concerned cannot be carried out because its means, apparatuses, or legal provisions are not able to cover severe crimes of human rights violations or crimes that are of equal cruelty and destruction level.
At present, the prohibition of non-retroactive enforcement of criminal rules has become common in the international world. For example, in Article 99 of the Third Geneva Convention on 12 August 1949, Article 4 and Article 28 of the 1969 Vienna Convention (Vienna Convention on the Law and Treaties), which regulates agreements between states, and Article 4 and Article 28 of the 1986 Vienna Convention.
Although the provisions in international law specify so, it does not mean there are no exceptions, implying that the opportunity to apply the retroactive principle remains open. This happens because the provisions of international law mentioned above provide the possibility to make deviations. This can be seen from the provisions in Article 28 of the 1969 Vienna Convention and Article 28 of the 1986 Vienna Convention, which have the same formulation. In addition, Article 64 and Article 53 of the two conventions also provide the possibility of the application of the retroactive principle. Other provisions can be seen in Article 103 of the UN Charter and Article 15 paragraph (2) of the ICCPR, which is an exception to Article 15 paragraph (1).
From the practice of international criminal law, it can be seen that the retroactive principle is applied to specific events, which in turn affects the practice of making provisions for deviations or exceptions from the non-retroactive principle in international legal instruments.
Prof. Dr. Wirjono Prodjodikoro S.H., an Indonesian Legal Expert, in his book titled “Principles of Criminal Law in Indonesia – Asas-Asas Hukum Pidana di Indonesia,” said that this principle has actually been determined for all fields of law and is repeated for criminal law contained in Article 1 paragraph (1) of the Indonesian Criminal Code, which states:
“No act shall be punished unless by virtue of a prior statutory penal provision.”
According to Wirjono, as the author quotes from an article from Hukum Online titled “Non-Retroactive Principle – Asas Non-Retrokatif,” the prohibition of retroactivity aims to enforce legal certainty for the people, who should know which acts are considered a crime or not. However, in practice, for certain crimes or cases, such as criminal acts of terrorism or crimes against humanity, this non-retroactive principle can be excluded.
Then how can regulations be applied retroactively? To answer this question, we can refer to Law No. 12 of 2011 regarding the Formulation of Regulatory Legislation (“Law No. 12/2011”).
Point 124 of the elucidation of Law No. 12/2011 states that:
“If a Regulation that contains a penal provision will be made retroactively, the penal provision shall be excluded, considering the existence of the general principle in Article 1 paragraph (1) of the Indonesian Criminal Code, which states that a penal provision must not be retroactively active.”
Furthermore, it is stated in point 155 of the elucidation of the Law No. 12/2011, “Basically the entry into force of a Regulation cannot be stipulated earlier than the time of its promulgation in the state gazette.”
However, if there is a strong reason to make a regulation effective earlier than the time of its promulgation in the state gazette, it must consider the following (point 156 of the elucidation of the Law No. 12/2011):
- the new provision that is related to penal matters, whether its type, severity, nature or its classification, shall not be retroactively effective;
- the details about the effect of the retroactive provision to a certain prevailing legal action, legal relation, and legal effect shall be explained in the transitional explanation;
- the entry into force of a Regulation shall be stipulated not earlier than when the bill is known to the people, for example, when the bill is stated in the National Legislation Program, Regional Legislation Program, and other planning of a bill.
Hope it is useful,
FREDRIK J PINAKUNARY LAW OFFICES