Definition of Retroactive in Law: Concepts, Applications, and Impacts

In Indonesian law, the term retroactive is not a foreign term heard in the community. Where the presence of this term, often raises the pros and cons of various views. So, what is a retroactive? This article will discuss further about retroactive concepts, its application in legal practice, as well as the impact it causes, both juridically and on individual rights.

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What is a retroactive in law?

The term retroactive in law refers to a principle in which a laws and regulations can be enforced in an ancestry. Or in other words, a statutory regulation can be applied to a particular legal action or event, even though the regulation has not been approved or promulgated when the event occurs.

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Retroactive application in law

In the Indonesian criminal legal system, retroactive is an exception to the principle of legality (no violation without punishment without prior punishment), which confirms that an act cannot be convicted unless it has been regulated in the law before the act is carried out. Where the application is closely related to cases of terrorism and gross human rights violations.

This is reflected in a number of laws and regulations that open up the possibility of an enactment of the principle of retroactive to a criminal case, including:

1. Article 1 paragraph (2) of the Criminal Code (“KUHP”)
   “If there are changes in the legislation after the act is carried out, the defendant is applied to the most beneficial provisions for the defendant. ”

2. Article 43 paragraph (1) of Law Number 26 of 2000 concerning Human Rights Courts
   “Heavy human rights violations that occurred before the enactment of this law, was examined and decided by the Ad Hoc Human Rights Court“

3. Article 46 Government Regulation in lieu of Law Number 1 of 2002 concerning Eradication of Terrorism Crimes, which is then determined to be Law Number 15 of 2003
   “The provisions in the Government Regulation in lieu of this Law can be treated to legal actions for certain cases before the government regulations begins to replace this law, the application of which is determined by a law or government regulation in lieu of a separate law. “

While in the Indonesian civil legal system, the application of retroactive in an agreement is allowed as long as it meets the legitimate requirements of the agreement and does not conflict with the applicable legal provisions. Which in practice, civil law in the case of agreements adheres to the principle of freedom of contract as regulated in Article 1338 of the Civil Code (“Civil Code”), which gives the freedom to the parties to determine the contents and time of the entry into force of the agreement, as long as it does not conflict with the law, public order, and decency.

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Legal impact of retroactive application

The application of the law is retroactively, especially in the case of human rights violations, can indeed be an important instrument to bring justice for victims who have suffered from past actions. With the enactment of the applicable law, serious perpetrators who previously escaped the snares of the law could be held accountable. This gives a glimmer of hope for victims to get recognition of their suffering, as well as ensuring justice is obtained by all elements of society.

However, the application of retroactive also has significant legal implications and has the potential to cause dilemmas. Because with the implementation of retroactive in law, it can potentially be created a legal uncertainty and other legal issues if done not in accordance with the legislation that has regulated it.

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When is retroactive allowed in law?

The application of the retroactive principle in law, although basically prohibited by the principle of legality (No Legal without Law), but in practice it is still possible to be done in certain circumstances that are recognized both internationally and nationally, especially to deal with extraordinary crimes (Extraordinary crime). Which is the application of retroactive itself can be divided into two types, namely pure retroactive and pseudo retroactive.

Pure retroactive occurs when a new legal provision is applied to events that have been fully completed in the past, including the whole result of the law. This type is very rarely applied because it is at high risk of legal certainty. However, exceptions remain possible, especially against very serious crime and violating universal human values, such as genocide, crimes against humanity, and war crimes. The application of pure retroactive in this context aims to close the legal gap that allows the perpetrators of serious crimes to avoid legal accountability.

Meanwhile, pseudo retroactive is more often found in legal practice. This type arises when a new regulation is applied to events that begin before the regulation applies, but the legal consequences are still running or not completely completed. For example, it can be found in changes in tax provisions that have an impact on the ongoing obligations, or in the shift in the expiration of the ongoing lawsuit. In the field of criminal law, pseudo retroactive can also be applied to extraordinary criminal acts, such as gross human rights violations and terrorism, as confirmed in a number of international and national legal instruments, to ensure accountability for crimes that cannot be tolerated.

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Retroactive and Backdate Differences in Law

In legal terms, retroactive and agreement Backdate are two different concepts. Where retroactive refers to the principle in which a legislation is imposed, meaning that the rule is applied to the actions or events that occur before the regulations are legally enacted.

While the agreement Backdate is an agreement or contract made by the parties by stating a date of resignation that is not in accordance with the actual signing date. Agreement Backdate This is generally made on the agreement of the parties for a particular purpose because if it is not made on an agreement will lead to various legal consequences that might occur in the future.

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Can retroactivity be used safely in law?

The use of the retroactive principle is always in the tension between legal certainty and substantive justice that follows it. Where one side, there is a principle that demands that the law does not apply receding in order to protect the rights of individuals from arbitrary power (the principle of legality). But on the other hand, there are some extraordinary conditions in which the application of the law is retroactively deemed necessary to answer the needs of greater justice.

So, if you want to use the retroactive principle in law safely, it must be done based on strict regulations. Where in the Indonesian legal system, the retroactive principle can only be applied under certain conditions that are clearly regulated by laws and regulations.

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(This article has been edited by the perqara editorial team)

Legal basis

1. Criminal Code (“KUHP”)
2. Law Number 26 of 2000 concerning Human Rights Courts
3. Government Regulation in lieu of Law Number 1 of 2002 concerning Eradication of Terrorism Crimes, which is then determined to be Law Number 15 of 2003

Reference

1. Intan Audy, Jeanne and Manik and Wirazil Mustaan, “Legal Study of Retroactive Principles in Crimes against Humanity”, Journal of Law: Law to regulate and protect the public, Vol. 7, No.1, (2021).
2. Notarian Asril, Husni and Ferdy Saputra, “the principle of retroactive against the crime of terrorism”, Malikussaleh University Faculty of Law Student Scientific Journal, Vol. IV, No. 1, (2021).
3. Ahmad Basuki, “Retroactive Policy in Law Enforcement Against Heavy Human Rights Violations”, Perspective, Vol. XII, No. 2, (2007).
4. Made Gelgel, “The implications of the retroactive principle of the validity of the notary deed/PPAT in granting building use rights for limited liability companies”, Journal of Udayana Law MastersVol. 6, No.1, (2017).