Retroactive Laws: Are They Constitutional?

The enactment of retroactive laws is a complex and controversial topic that has been addressed by various legal systems and constitutions worldwide. Retroactive laws, also known as ex post facto laws, refer to the application of new laws or regulations to actions or situations that occurred before the laws were enacted. While some countries like the Philippines, Poland, Portugal, and Ireland have explicit constitutional prohibitions against retroactive laws, other jurisdictions, like the United States and India, allow for their enactment under certain circumstances. The validity and scope of retroactive laws are often determined by courts through established legal doctrines, with a key consideration being the potential violation of due process rights and the protection against arbitrary legislative actions.

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Retroactivity in criminal law

The concept of retroactivity in criminal law is often associated with the term "ex post facto law," which refers to a law that retroactively changes the legal consequences or status of actions committed or relationships that existed before the law was enacted. Ex post facto laws can criminalize actions that were previously legal, aggravate a crime by placing it in a more severe category, alter rules of evidence to make conviction more likely, or extend the statute of limitations. Conversely, amnesty laws can decriminalize certain acts or prohibit prosecution without necessarily redefining the acts as non-criminal.

The constitutionality of enacting retroactive laws varies across different jurisdictions. In the United States, ex post facto laws are expressly forbidden by the Constitution, both with respect to federal laws (Article 1, Section 9, Clause 3) and state laws (Article 1, Section 10). Similarly, the Canadian Charter of Rights and Freedoms prohibits ex post facto criminal laws in Section 11(g), while Section 11(i) ensures that individuals receive the lesser punishment if the penalty for a crime has changed between the time of the offence and sentencing. The European Convention on Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 15(1)), and the American Convention on Human Rights (Article 9) also prohibit ex post facto criminalization.

However, some countries apply the principle of lex mitior ("the milder law"), where the version of the law that is more advantageous to the accused is applied if the law has changed after the offence was committed. For example, Article 29 of the Albanian Constitution explicitly allows retroactive effect for laws that alleviate possible punishments. In Illinois, despite opposition based on the state constitution's separation of powers provision, legal analysis has supported the Illinois General Assembly's power to enact retroactive legislation.

Retroactive reforms are intended to provide relief to individuals who have been disadvantaged by outdated, overly broad, harsh, or disproven policies of the past. They can address injustices caused by outdated laws and policies, even though retroactive legislative reform may not always be able to undo the damage inflicted. For example, in 2017, Louisiana passed a package of criminal justice reforms, some of which were applied retroactively, including restoring parole eligibility for certain offenders and granting medical treatment furloughs to incarcerated individuals with limited mobility.

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Retroactive laws in civil matters

The concept of retroactivity in civil matters is complex and varies across different legal systems. While some countries prohibit the retroactive application of laws in civil contexts, others allow it under specific circumstances.

In the United States, the legality of retroactively applied laws depends on whether the law improves or worsens the situation of the individuals it affects. For example, Illinois has statutes that allow courts to modify judgments after 30 days, such as granting defendants new trials or reducing sentences. However, both federal and Illinois law prohibit retroactive laws that increase penalties or impose new consequences on past actions. Similarly, the Mexican Constitution prohibits the retroactive application of laws if it is detrimental to a person's rights, but a new law can be applied if it benefits the person.

In contrast, some countries explicitly prohibit the retroactive application of laws in civil matters. For instance, Article 3 of the Polish civil code prohibits retroactive application, encapsulated in the legal principle Lex retro non agit ("A law does not apply retroactively"). The Finnish legal system generally does not permit ex post facto laws, especially in criminal matters, but there may be exceptions for civil cases, such as taxation. The Indonesian Constitution also prohibits trying citizens under retroactive laws in any circumstance, as demonstrated in the case of one of the Bali bombers, Masykur Abdul Kadir, where a retroactive anti-terrorist conviction was quashed.

Retroactive reforms in civil matters are often designed to provide relief to individuals disadvantaged by outdated, overly broad, or harsh policies of the past. They can be a critical tool for sentencing reform, helping to reduce disparities in sentence lengths for similar offenses and addressing overly harsh sentencing policies. However, opponents of retroactivity argue that it is unfair to victims and their families, who expected a particular sentence under the previous laws.

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Retroactive changes to sentencing

The constitutionality of enacting retroactive laws varies across different jurisdictions. For example, the imposition of retroactive criminal sanctions is prohibited by the Irish Constitution, as per Article 15.5.1°. The Indonesian Constitution also prohibits trying citizens under retroactive laws in any circumstance. Article 25, paragraph 2, of the Italian Constitution prohibits indictment pursuant to a retroactive law. The 1987 Constitution of the Philippines also prohibits the passing of any ex post facto law.

In contrast, the Indian Constitution does not invalidate ex post facto laws, and the courts may interpret a law to remove any objection against its retrospective operation. The Mexican Constitution prohibits retroactive application of the law if it is detrimental to a person's rights, but a new law can be applied if it benefits the person.

In the United States, the U.S. Sentencing Commission has, on several occasions, proposed and approved retroactive amendments to the federal sentencing guidelines. For example, the Commission unanimously voted to allow a delayed retroactive reduction in drug trafficking sentences. The First Step Act, passed in 2018, also made retroactive the Fair Sentencing Act of 2010, which reduced the impact of harsh drug laws.

At the state level, Oregon passed an omnibus criminal justice measure in 2019 that modified the judicial review of sentence processes, allowing reviews after serving half of the sentence. In 2021, Connecticut enacted a second-look law that allows individuals sentenced after a trial to petition the court to review the sentence, regardless of the length of their sentence or their age at the time of the offense. The Illinois Supreme Court has upheld the constitutional power of the Illinois Legislature to adopt statutes that allow defendants to return to court more than 30 days after sentencing to seek to have their sentences reduced or altered.

Retroactivity and the US Constitution

The US Constitution prohibits laws that retroactively change the legal consequences of actions committed before their enactment, under the ex post facto clause. This ensures protection against arbitrary and potentially vindictive legislative actions. The US Supreme Court has upheld the importance of this clause in cases such as Calder v. Bull and Peugh v. United States, reinforcing that retroactive criminal legislation cannot impose new punishments, increase penalties, or alter evidence rules to facilitate conviction.

While the ex post facto clause prohibits certain retroactive changes, it does not cover all procedural modifications. If a procedural change does not affect substantive rights, it may be applied retroactively. This distinction is critical, as procedural alterations are generally allowed if they do not change the legal consequences of a defendant's actions. For example, the Illinois Supreme Court upheld the constitutionality of statutory provisions allowing defendants to return to court to seek concurrent sentences, even after 30 days of sentencing.

Legislatures occasionally enact retroactive laws to address perceived injustices or clarify ambiguities. For instance, retroactive environmental regulations might hold companies accountable for past pollution not explicitly covered by previous legislation. However, such measures can lead to legal challenges, as affected parties may argue that their due process rights have been violated. In criminal law, retroactive legislation presents unique challenges, as applying new laws to past conduct raises significant constitutional concerns.

The European Court of Human Rights (ECHR) also addresses retroactivity under Article 7 of the European Convention on Human Rights, which is similar to the US ex post facto clause. This provision ensures individuals are not subjected to retroactive criminal laws, protecting against the criminalization of actions after they have been committed. While the ECHR and the US Constitution share this principle, the Indonesian Constitution takes a stricter approach, prohibiting trying citizens under retroactive laws in any circumstance.

Retroactive laws in international law

The principle of non-retroactivity of law, which first emerged in Roman law, prohibits the application of law to events that took place before the law was introduced. This principle has become particularly controversial as states adopt stricter environmental regulations to tackle climate change. While the principle of non-retroactivity is widely accepted in criminal law, it does not receive equal recognition in other areas of domestic law.

International courts and tribunals often refer to the principle of non-retroactivity of law as a general principle of law, but they rarely explain what precisely this principle entails. Despite pronouncements of some international courts and tribunals, there is no general principle of international law that forbids the retroactive application of administrative law.

The modern presumption under international law is that treaties do not operate retroactively. However, there is nothing to prevent the parties from giving a treaty or some of its provisions retroactive effect. This is a question of the parties' intention as expressed or implied in the treaty.

Some countries, such as the United States, maintained in the nineteenth century that when a treaty was ratified, it would operate retroactively to the time of signature, at least with respect to inter-state obligations, as opposed to private rights. This view was abandoned in the twentieth century.

Retroactive reforms today are designed to provide relief to individuals who have been disadvantaged by anachronistic, overly broad, vague, harsh, and/or disproven policies of the past. While the damage inflicted by these policies cannot always be undone through retroactive legislative reform, there are some policies where retroactivity makes a substantial difference.

In the context of international law, particular focus is paid to investor-state arbitration, viewed as a species of global administrative law. Investor-state tribunals review administrative legislation and practices of states. The most litigated form of administrative regulations related to retroactive measures either impose liability for environmentally harmful effects that have already occurred or retroactively remove subsidies or related economic incentives.

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