Laws were never made to take revenge on criminals, but to edify and civilize them, to teach them about coexistence and help them get along with society. That is why the rule of non-retroactivity of penal laws is considered one of the most effective laws that serves and secures humanity. In a world where change is constant, laws are influenced by each country’s social events, political events, economic development, world politics, national religions … reasons are countless but they all lead to changes in laws and updates which bring us to the question: “How would anyone feel secure if he gained legal status through the current law but threatened that the law might change later and this means losing what he gained, especially when it comes to criminal law as one of the most effective laws which handles somebody’s freedom or even take away their life if the sentence was execution by the law? What if someone was declared innocent due to the law and then a new law comes to declare him guilty? Or someone commits an act that is totally legal and then he finds himself in November 2018 wanted by the law or branded a criminal? The rule of non-retroactivity of penal laws is the answer to all these questions.
The rule of non-retroactivity of penal laws is derived from the Universal Declaration of Human Rights 1948 stating, “No one is accused of committing a crime for an act that was not legally penalized by the national or the international law at the time of committing. As for the penalties, no penalty applies that is more intensive than the penalty which was legalized at the time of committing. But if the new law makes the penalty less intensive than the original one, then it shall be taken based on ‘the most advantageous law to the accused’ principle.”
The same principles were mentioned in the European Convention on Human Rights 1950. It was assured that there were similar regulations for the national judge of every country regarding ‘the most advantageous law to the accused.’ If there are any changes, the judge who wants to take those changes into consideration must be guided and supervised by that principle to make it fair and advantageous to the accused.
It clearly means that no one faces a penalty which he was not aware of at the time of committing the crime. Issuing the law is not related to knowing the law by the people. It is not what ‘non-retroactivity of penal laws’ means.
Everyone is obligated to know updates on laws by reading Kuwait official newspaper where the new laws are announced. No one can claim not knowing the law as reason for not facing the penalty for what they have committed. But they will be charged only at a time their acts are considered a crime. Basically, this is what ‘non-retroactivity of penal laws’ means, each accused person knows what he committed and what penalty he is going to face. No penalty from the future will be imposed on an innocent from the past, or else, there will be no secure legal status. People will not put their faith in an unsteady law which will lead to confusion and chaos.
Moreover, the ‘non-retroactivity of penal laws’ secured the legal status and made the law a trustworthy source to regulate dealings and life. Still, there are two exceptions to the rule — the benefit of the accused and the convict.
If the new law considers an act a crime, then both the accused who is still in trial and the convict who is in jail will benefit from this change. The trial will stop and the accused will walk out free from any accusations. If the convict is jailed, the prison administration must sign his release papers without waiting for him to finish the full term of his sentence set by the previous laws due to the benefits of the new laws.
If changes are only about reducing the sentence in terms of time to be served or fine to be paid, then only the accused will benefit from these changes while the convict who is already in jail and finished his trials will not benefit from sentence reduction.
A couple of months ago, a very famous politician got out of jail. He was sentenced to two years in prison for offending the Amir. His story was a hot topic considering changes in the law of candidature and parliamentary election. These changes prevent those convicted of offending God, the Amir, The Prophet (PBUH) and his wives (Peace be Upon Them) from running for parliament election which made the people ask. “Will these changes be applied on him?”
The law answers: “Despite the fact that the law of candidature and parliamentary election is not related to non-retroactivity of penal laws, it still cannot go against this principle which means the politician will be able to run for election.” It is inhuman to prevent someone from exercising their rights due to a condition that he was not aware of at the time of committing the crime. It is only fair to let the people know what is legal and what is not before judging them.
Personally, I think the non-retroactivity of penal laws principle has made the law more effective.
By Atyab Alshatti, Esq.