Retroactive Principle vs. Legality Principle: Definition and Prohibition

Redaksi Literasi Hukum Indonesia

07 Aug 2023 · 21:40 07 August 2023 21:40 WIB 7 minutes reading time: 7 minutes 32 read

Legal Literacy - Learn about the retroactive principle, how the retroactive principle applies, and how extensive the regulations regarding the retroactive principle are in Indonesian national law and inter...

Retroactive Principle vs. Legality Principle: Definition and Prohibition

Table of Contents

Definition of the Retroactive Principle
Retroactive Principle V. Legality Principle
Historically, initially the prohibition of retroactive law enforcement in Indonesia was 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 (Criminal Code). Furthermore, the prohibition of retroactive law enforcement is also regulated in Article 14 paragraph (2) of the 1950 UUDS which reads “no one may be prosecuted to be punished or sentenced, except because of a rule of law that already exists and applies to him”. The same provision is also regulated in Article 28I paragraph (1) of the 1945 Constitution as amended.

Section 2/3: Retroactive Principle V. Legality Principle

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 provision regarding the prohibition of retroactivity is explicitly regulated in Article 1 paragraph (1) of the Criminal Code. (KUHP) which states that (1) An act cannot be punished, except based on the force of existing criminal legislation. 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 Applying the Retroactive Principle

Historically, initially the prohibition of retroactive law enforcement in Indonesia was 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 (Criminal Code). Furthermore, the prohibition of retroactive law enforcement is also regulated in Article 14 paragraph (2) of the 1950 UUDS which reads “no one may be prosecuted to be punished or sentenced, except because of a rule of law that already exists and applies to him”. The same provision is also regulated in Article 28I paragraph (1) of the 1945 Constitution as amended.

Regulations regarding the prohibition of retroactive law are also regulated in various international provisions. The Rome Statute of the International Criminal Court 1998 for example, in Article 22 (Noellum Crimen Sine Lege) the International Criminal Court explicitly rejects regulations regarding the retroactive principle, 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”.