Jeffrey Winters and Ridarson Galingging, Jakarta
Most people would agree that it is unjust to prosecute someone
for a legal action which is later made into a crime by passing a new
law. Retroactivity, as it is called, is unfair because citizens must
be confident that their legal actions cannot later be turned against
them as illegal.
But how absolute is the retroactivity principle? Are there any
special circumstances under which retroactive enforcement of a law
Although the Indonesian Constitutional Court (CC) split 5-4 in
its recent decision on the country's terrorism law, it is important
to note that all of the judges were in agreement that retroactive
enforcement is sometimes justified.
In accordance with principles of international law that have been
in effect at least since the end of World War II, the judges were
unanimous in the view that under special circumstances retroactive
enforcement should be allowed.
Thus, the real controversy at the heart of the recent decision by
the CC is not the broad issue of whether a law can ever be enforced
retroactively, but rather the narrower question of whether special
circumstances existed in the Bali bombing case to justify
So why did the judges split in their opinion? The answer is that
five judges held that the Bali bombing was an "ordinary crime,"
while the dissenting judges argued that the crime was
"extraordinary." Thus, the majority agreed that retroactive
enforcement is justified is some cases, just not in this particular
What this means is that much of the debate focusing on the
important principle of retroactivity is actually beside the point.
It is a philosophical distraction from the real meaning and intent
of the majority on the CC. This decision was more political than
The judges who prevailed went to great lengths to make sure that
the Bali bombing had no special status as a terrorist act. By
insisting that the bombing was simply a horrible but ordinary case
of murder, the judges crossed the line from pure legal reasoning
into the realm of politics. Their objective was less to declare and
uphold an absolute legal stance on retroactivity, and more to strike
a blow against the prosecution of violent Muslim extremists as
There are two very strong reasons why the judges could and should
have allowed retroactive enforcement of the terrorism law in the
Bali case. They deliberately chose to downplay or ignore both
The first concerns the crucial issue of avoiding post-hoc
The single most important argument against retroactivity is to
avoid oppression through the criminalization of non-criminals.
Allowing retroactive enforcement of the terrorism law should have
been easier for the judges because no post-hoc criminalization
occurred in the Bali bombing case. The actions of the conspirators
were criminal whether they were prosecuted under the terrorism law
or the ordinary criminal code.
By contrast, if a citizen legally shouts "the Minister X is
stupid" at a rally, and then a law is passed making it illegal to
say high government officials are stupid, then a legal action has
been retroactively made illegal. Everyone would agree that it is
unjust to enforce the new law against the rally participant who said
the Minister was stupid.
The Bali bombing case is the opposite of this example. The
conspirators committed the crime of killing people, severely
injuring people, and destroying property. Passing the terrorism law
after the bombing did not suddenly transform innocent people into
criminals -- which is the single most important reason to block
retroactivity. It simply redefined their "normal" crimes as special
or "extraordinary," in this case blowing up people with the specific
goal of terrorizing a society.
When a new law transforms innocent citizens into criminals, all
government justifications for retroactivity should be ignored and
the court should always invalidate the law. But when the actions of
the defendants are already serious crimes, the door is wide open for
judges to weigh possible government justifications for retroactive
enforcement of new laws passed after a crime is committed.
For instance, a government might want to do more than just punish
nightclub or hotel bombers as common murderers to send the message
that they are different from someone who kills a lover or co-workers
in a rage. A government might want to send a clear signal to its
citizens and to the world that terrorism is a particular kind of
threat, and that special actions will be taken to confront it.
The Indonesian government clearly felt that the benefit of
reducing fear from terror in Indonesia outweighed the minor
disadvantage of retroactively prosecuting cold-blooded murderers as
"terrorists" rather than simply as "ordinary murderers." It is
important to note also that the new law did not increase the
sentences the defendants would face.
On these solid grounds, the Indonesian government made the right
decision to proceed with the prosecutions under the new terrorism
law rather than under the existing criminal codes.
The second reason the CC judges could have used to uphold
retroactive enforcement of the terrorism law was that the Bali
bombing was an "extraordinary" crime involving special
On very weak grounds and reasoning, they deliberately ignored the
arguments in favor of treating the Bali bombing as an extraordinary
International jurisprudence dating back at least to the Nuremberg
trials holds that the retroactive enforcement of laws is justified
when a crime is "extraordinary."
Another example is terrorism. The point is not just that many
people are killed (this is a common occurrence around the world),
but rather that the people killed are just incidental to the broader
goal of spreading fear and sowing instability.
Again, killing people is already a crime. But governments
routinely treat murders differently based on the motive involved.
And numerous UN Conventions to which Indonesia is a signatory uphold
the principle that this can be done retroactively, particularly in
the case of terrorism.
It happens also that the Bali bombing involved a network of
conspirators that had international linkages, adding to the
"extraordinary" character of the crimes and of the threat. Existing
criminal laws dating back to the Dutch colonial era were inadequate
for pursuing crimes with this trans-national character.
To support their decision not to relax the retroactivity
principle, the judges first had to dismiss the claim that the Bali
bombings constituted extraordinary crimes. Although the majority
decision cites the testimony of expert witnesses, not one provided
legal grounds or rationales undermining the Indonesian Justice
Ministry's argument that the terrorist bombings in Indonesia were
To arrive at what can only be described as an extremist legal
interpretation, the judges for the majority had to ignore not only
the well-founded arguments of the Indonesian government, but also at
least a dozen international conventions that treat attacks such as
the Bali and Marriott bombings as terrorist acts, and thus as
The obvious question that remains unanswered is why these judges
chose to adopt this extremist position. We believe that a key part
of the answer can be found in looking at the political backgrounds
of the majority and dissenting judges, as well as different training
the judges have received.
Jeffrey Winters is a professor of political economy at
Northwestern University. Ridarson Galingging is a lecturer in
international law and human rights at Yarsi University in Jakarta.
He is currently studying for his Doctor of Juridical Science degree
at Northwestern University's School of Law, where he received his