Retroactive Law: Past Actions And Legal Consequences

The question of whether laws apply to the past is a complex one, and the answer depends on the legal system in question. In some countries, like the United States, ex post facto laws (laws with retroactive effect) are prohibited by the Constitution. However, in other countries, like the United Kingdom, ex post facto laws are permitted due to the principle of parliamentary sovereignty.

The concept of ex post facto laws is closely related to the idea of legal history, which involves studying how laws have evolved and why they have changed. Legal historians often analyse case histories, transaction costs, and the number of settled cases to gain a deeper understanding of the evolution of legal concepts.

In the United States, the process of lawmaking begins with a bill, which is a proposal for a new law or a change to an existing law. This bill can be introduced by a member of Congress, or it can be petitioned by citizens or citizen groups. The bill then goes through a committee, which researches, discusses, and makes changes before presenting it to the respective chamber (the House of Representatives or the Senate) for a vote. If the bill passes one chamber, it goes through a similar process in the other chamber. Once both chambers agree on a version of the bill, it is presented to the president for approval. The president can either sign the bill into law or veto it. If the president vetoes the bill, Congress has the power to override the veto in most cases.

The lawmaking process in the United Kingdom shares some similarities with the US system but also has some key differences. While both the House of Commons and the House of Lords have equal legislative functions, only the House of Commons can initiate tax and revenue-related legislation. Additionally, the House of Commons makes decisions through majority voting, while the House of Lords emphasises deliberation and debate.

Ex post facto laws

In a legal context, ex post facto laws refer to criminal statutes that punish actions retroactively, thereby criminalising conduct that was legal when it was originally performed. In other words, ex post facto laws change the legal consequences or status of actions that were committed before the enactment of the law.

The United States Constitution forbids Congress and the states from passing any ex post facto laws. This prohibition is outlined in Article 1, Section 9, Clause 3, and Article 1, Section 10, of the Constitution, respectively.

The policies underlying ex post facto laws are recognised in most developed legal systems and are reflected in the civil law maxim "nulla poena sine lege" ("no punishment without law"). This principle is rooted in Roman law.

Conversely, a form of ex post facto law known as an amnesty law may decriminalise certain acts. Pardons can have a similar effect, although they typically leave the underlying conviction of guilt unaltered. Other legal changes may retroactively alleviate possible punishments, such as replacing the death sentence with lifelong imprisonment.

The prohibition on ex post facto laws seeks to assure that legislative acts give fair warning of their effects and permit individuals to rely on their meaning until explicitly changed. It also restricts governmental power by restraining arbitrary and potentially vindictive legislation.

The concept of ex post facto laws has been a topic of discussion and debate in various legal contexts, including the Nuremberg Trials following World War II and in the context of retroactive tax laws.

Common law

In the US, common law rules were originally based on English common law. Today, every US state except Louisiana has a common law legal system. Louisiana's system is based on the French civil code, while Puerto Rico's is based on the Spanish civil code. However, it is important to note that none of the common law systems in the US are purely common law systems, as they also have codified statutes that courts must consider.

One benefit of common law systems is efficiency. Judges only need to follow precedent when making decisions, which can shorten court proceedings and save time and money. Additionally, common law systems offer adaptability to unforeseen circumstances as they can address situations that lawmakers may not have predicted.

However, common law has also faced criticism. Historically, common law traditions have led to the unfair marginalisation or disempowerment of certain groups, and past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn them. This dynamic can make it challenging for marginalised parties to pursue favourable rulings.

Criminal law

In criminal law, an ex post facto law can retroactively change the legal consequences of actions committed before the law's enactment. This can include criminalising actions that were previously legal, increasing the severity of a crime, changing the punishment for a crime, extending the statute of limitations, or altering the rules of evidence to make conviction more likely.

Ex post facto laws are prohibited by the constitutions of many nations, including the United States, Brazil, Canada, Estonia, France, Germany, India, Indonesia, Iran, Ireland, Italy, Japan, Lithuania, Mexico, New Zealand, Norway, Pakistan, the Philippines, Poland, Portugal, Romania, Russia, South Africa, Spain, Sweden, Turkey, and the United Kingdom.

However, some nations that follow the Westminster system of government may allow ex post facto laws due to the doctrine of parliamentary supremacy. For example, the United Kingdom has passed retrospective criminal laws, such as the War Crimes Act 1991, which allowed British courts to prosecute war crimes committed during the Second World War.

In some cases, ex post facto laws may be permitted if they benefit the accused person, as seen in France, Brazil, and India. This principle, known as "lex mitior" in Europe, dictates that the version of the law that is more advantageous to the accused should be applied if the law has changed after the offence was committed.

Internationally, ex post facto criminalisation is prohibited by the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.

Pardons

In some jurisdictions, accepting a pardon may implicitly constitute an admission of guilt, and so, in some cases, the offer is refused. Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to free someone who is seen as wrongly convicted. However, in extreme cases, some pardons may be seen as acts of corruption by officials, granting effective immunity as political favours.

The power to pardon often lies with the head of state, such as the president or monarch, and is often advised by or delegated to other government bodies. In the United States, the president is authorised by the Constitution to grant a pardon for federal crimes, except in cases of impeachment. The president's clemency power includes the commutation of sentences, remission of fines or restitution, and reprieve.

A pardon is an executive order granting clemency for a conviction and may be granted "at any time" after the commission of the crime. It is an expression of the president's forgiveness and is usually granted in recognition of the applicant's acceptance of responsibility for the crime and their demonstration of good conduct following conviction or completion of their sentence. While a pardon does not signify innocence, its practical effect is the restoration of civil rights and the removal of statutory disabilities associated with a past criminal conviction.

The full extent of a president's power to pardon has not been fully tested, and the ability of a president to pardon themselves (self-pardon) has never been tested in court. The constitutional basis for the pardon power in the US is Article II, Section 2, Clause 1 of the Constitution, which provides the president with the power to "grant Reprieves and Pardons for Offenses against the United States".

In the UK, the power to grant pardons and reprieves is known as the royal prerogative of mercy and is now exercised by the government, rather than the monarch or judiciary.

In Australia, the pardon power is referred to as the royal prerogative of mercy and is an executive power vested in the King, which may be exercised by the governor-general. In addition, Australia has passed legislation creating additional avenues to seek a pardon, such as exoneration, reduced sentences, or conditional release.

In some countries, such as Chile, France, Germany, Greece, and Italy, the president or head of state has the power to pardon or commute sentences. In other countries, like Canada, the federal agency responsible for making pardon decisions is the Parole Board, which can issue, grant, deny, and revoke pardons.

Amnesty laws

In recent times, amnesty laws have been passed in countries including Afghanistan, Lebanon, Brazil, the Democratic Republic of the Congo, El Salvador, and Peru.

International law is increasingly seen to prohibit the granting of amnesty for "international crimes", which include crimes against humanity, war crimes, and genocide. International, regional, and national courts have increasingly overturned general amnesties, and recent peace agreements have largely avoided granting amnesty for serious crimes.

The Belfast Guidelines on Amnesty and Accountability set out a framework to evaluate the legality and legitimacy of amnesties in accordance with the multiple legal obligations faced by states undergoing conflict or political transition.

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