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Ex-post facto Laws

Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed. Such laws are specifically prohibited by the U.S. Constitution. Therefore, if a state legislature enacts new rules of proof or longer sentences, those new rules or sentences do not apply to crimes committed before the new law was adopted.

In the field of criminal law an ex post facto legislation, is prohibited. We have therefore to find out the scope of such legislation and how far the present Ordinance is a retroactive law. In the matter of ex post facto legislation having retroactive effect, there is considerable difference between what obtains in the United States of America and what is in vogue in England. At page 383 of "Law in the Making" by C. K. Allen, the learned author observes as follows:

"There is, in all civilized states, the strongest prejudice against retrospective or ex post facto legislation, since it is, in the words of Willes J., 'prima facie' of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."

The decision in Phillips v. Eyre, (1871) 6 Q. B. 1 at p. 23 : (40 L. J. Q. B. 28). is cited.

The learned author further observes: "However, this great common law authority is quite clear that there is no principle known to the law which actually prohibits such legislation. Nor is there any objection to it when it operates for the protection of an individual or individuals. Legislation of this kind has not been infrequent."

Therefore it is seen that ex post facto legislation is not prohibited so far as England is concerned. In the United States of America, ex post facto legislation is expressly prohibited by the Constitution. See Article 1, Section 9, Sub-section (8) of the United States Constitution, In his book on "Constitutional Law of the United States" Edn. 2 (page 458) Willoughby states as follows :

"Ex post facto legislation upon the part of the States as well as by Congress is specifically forbidden by the Constitution. It thus results that, for the determination of what Constitutes ex post facto legislation, within the meaning of the Constitution, the decisions of the Supreme Court with reference to State laws alleged to be of this character are of equal weight to its decisions with regard to acts of Congress against which the same defect is charged.

In the early case of Calder v. Bull, 3 Dall 383 at p. 390 the prohibition was declared to relate only to criminal law and not civil proceedings, and, as thus limited, ex post facto laws were declared to be 'every law that makes an action done before the passing of a law, and which was innocent when done, criminal; and punishes such action. Every law that aggravates a crime, or makes it greater than it was, when committed. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Article 20 (1) of the Constitution of India has been held to be much wider in terms than the principles incorporated in the American Constitution which merely prohibits an ex post facto law.

Article 20(1) of the Constitution deals with ex- post-facto laws though that expression has not been used in the Article. Usually, a law prescribes a rule of conduct by which persons ought to be governed in respect of their civil rights. Certain penalties are also imposed under the criminal law for breach of any law. Though a sovereign legislature has power to legislate retrospectively creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Art. 20(1). All that Art. 20(1) prohibits is ex-post facto laws and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of a person or his being subjected to a penalty under expost facto laws.

In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved."

 

 


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Category Constitutional Law, Other Articles by - Sameer Sharma 



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