Override of the Non-Retroactive principle in Law

Legal Literacy - This article discusses the override of the non-retroactive principle in legislation. Is it possible to apply the override of the non-retroactive principle? Let's look at the explanation in the following article.

Understanding the non-retroactive principle

The non-retroactive principle is a legal principle that prohibits the retroactive application of a law, that is, it applies to actions that were taken before the law was enacted. This principle is also known as the principle of legality or the principle of nulla poena sine lege.

The non-retroactive principle has several objectives, namely:

1. Protecting legal certainty. Legal certainty means that everyone must know what is prohibited and what is permitted by law. The non-retroactive principle guarantees that no one can be subject to criminal sanctions for actions they took before the law prohibiting those actions was enacted.
2. Protecting human rights. The non-retroactive principle protects human rights from being subject to criminal sanctions for actions that were not prohibited by law at the time the actions were taken.
3. Preventing abuse of power by the authorities. The non-retroactive principle prevents the authorities from using their power to establish laws that are detrimental to human rights.

Override of the Non-Retroactive Principle

Although in general both national laws and international conventions stipulate a prohibition on applying the retroactive principle, there are actually exceptions to this. This can be understood because constitutional provisions as the highest law and international legal provisions actually provide the possibility to deviate from these principles.

The first deviation can be seen in Article 28 of the Vienna Convention on the Law of Treaties 1969 and Article 28 of the Vienna Convention on the Law of Treaties 1986 which reads

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Interestingly, Article 64 of the Vienna Convention on the Law of Treaties regulates the Emergence of a new peremptory norm of general international law (jus cogens) which results in the possibility of applying the retroactive principle for certain conditions. Article 64 explains

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Another provision regarding the override of the non-retroactive principle can be seen in Article 15 paragraph (2) of the International Covenant on Civil and Political Rights which reads “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."

More interestingly, Article 4 explicitly allows state parties to the covenant to take measures needed in emergency situations that threaten the life of the nation, even if it results in the softening of the state's obligations to the covenant;

in time of public emergency which threatens the life of the nation, and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin

Likewise, Article 29 paragraph (2) of the Universal Declaration of Human Rights allows for limitations on human rights for reasons of respect for the rights and freedoms of others and to meet the just requirements of morality, public order and the general welfare in a democratic society;

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in democratic society.

In the Indonesian constitution, although Article 28I paragraph (1) of the 1945 Constitution regulates the prohibition retroactive laws, however, the indication that retroactive laws are permissible due to certain conditions is regulated in Article 28J paragraph (2), which is a provision limiting human rights.

Article 28J paragraph (2) of the 1945 Constitution of the Republic of Indonesia states that:

in exercising his rights and freedoms, everyone is obliged to submit to the restrictions stipulated by law solely for the purpose of guaranteeing recognition and respect for the rights and freedoms of others and for meeting just demands in accordance with moral considerations, religious values, security, and public order in a democratic society.

However, it should be noted that the provisions of Article 28J paragraph (2) of the 1945 Constitution regarding restrictions on human rights are still debatable.

In fact, according to the Constitutional Court, the provisions of Article 28I paragraph (1) of the 1945 Constitution are not absolute. This is emphasized in the legal considerations of Decision Number 065/PUU-II/2004 page 51, the Constitutional Court is of the opinion that:

Considering that the provisions of Article 28I paragraph (1) of the 1945 Constitution, state that the right not to be prosecuted under retroactive law is a human right that cannot be reduced under any circumstances.

Although the literal formulation gives the impression that the right not to be prosecuted under retroactive law is absolute, in accordance with its drafting history, Article 28I paragraph (1) must not be read in isolation but must be read together with Article 28J paragraph (2).

In this way, it will be apparent that, systematically, human rights - including the right not to be prosecuted under retroactive law - are not absolute, because in exercising their rights and freedoms, everyone is obliged to respect the human rights of others and is obliged to comply with restrictions determined by law solely for the purpose of guaranteeing the enforcement and respect for the rights and freedoms of others and to meet just demands in accordance with moral considerations, religious values, security and public order in a democratic society as regulated in Article 28J paragraph (2).

By reading Article 28I paragraph (1) together with Article 28J paragraph (2), it is clear that the right not to be prosecuted under retroactive law is not absolute, so that in order to "meet just demands in accordance with moral considerations, religious values, security, and order", it can be set aside;

If we trace its history further, the Dutch East Indies government in exile in Australia also once enacted a retroactive rule by issuing a rule called the Brisbane Ordonnantie 1945, namely a rule regarding the application of criminal acts against state security which aims to carry out criminalization against parties who have politically experienced war defeat, namely the Japanese army and its collaborators.

The enforcement of the retroactive principle at that time aimed to carry out a broad political domination of other parties who were considered as opponents.

Meanwhile, the application of the retroactive principle at that time was a recognition of the existence of the Lex Talionis (retaliation) principle. The nature of political retaliation as an attitude of Lex Talionis is reflected in the considerations of the military court decision which stated, among other things: "because the Allied forces will chase him to the ends of the earth to eventually be handed over to the prosecution because the law will be upheld".

After independence, the Constitution of the Republic of the United States of Indonesia (RIS Constitution) also recognized the application of retroactive legal rules. This can be seen in the transitional provisions of Article 197 paragraph (2) of the RIS Constitution which reads

if and only before the time mentioned in paragraph (1), actions have been taken to form the equipment of the Republic of the United States of Indonesia and to prepare for the acceptance of sovereignty, all on the basis of the provisions of this Constitution, then these provisions apply retroactively to the day the actions in question were taken.

The issue of applying the retroactive principle was again debated when Law Number 39 of 1999 concerning Human Rights and Law Number 26 of 2000 concerning the Human Rights Court were issued. The explanation of Article 4 of Law 39/1999 states that the application of this retroactive principle is permitted, it is explained that

….The right not to be prosecuted on the basis of retroactive law may be waived in the event of gross violations of human rights classified as crimes against humanity.

Interestingly, the Explanation of Article 4 of Law 39/1999 is actually contradictory to the wording of Article 4 of Law 39/1999 which states that “….the right not to be prosecuted on the basis of retroactive law is a human right that cannot be reduced under any circumstances and by anyone.”

Another provision, namely Article 43 paragraph (1) of the Human Rights Court Law readsSerious human rights violations that occurred before the enactment of this Law shall be examined and decided by the Ad Hoc Human Rights Court."

If observed, the provisions of Article 43 of the Human Rights Court Law do not explicitly state that these provisions can be applied retroactively. However, in substance, the provisions of Article 43 paragraph (1) which reads regarding all acts (serious human rights violations) that occurred before the enactment of this Law are examined and decided by the Ad Hoc Human Rights Court, then these provisions can be substantially applied retroactively after the DPR determines a certain event. that.

What is decided by the DPR about a “certain event” in relation to paragraph (1) in logical thinking can be ascertained is every event of serious human rights violations that occurred before the enactment of this Law, namely serious human rights violations that occurred before November 23, 2000.

Another provision regarding the application of the retroactive principle can also be seen in Article 46 of Government Regulation in Lieu of Law Number 1 of 2002 concerning the Eradication of Terrorism Crimes in the Bali Bombing Incident on October 12, 2002.

In the provisions of Article 46 of Perppu Number 1 of 2002, it is emphasized that “The provisions in this Government Regulation in Lieu of Law can be applied retroactively for legal actions for certain cases before this Government Regulation in Lieu of Law comes into effect, the application of which is determined by a separate Law or Government Regulation in Lieu of Law."

If observed grammatically, the sentence “…can be applied retroactively for legal actions for certain cases before this Perpu comes into effect, …” contains a signal that this provision opens up the possibility of retroactively applying it to acts of terrorism other than the Bali Bombing incident on October 12, 2002.

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