The Role of Non-retroactivity of Shari’a Criminal Law: Rereading Article10 of the Islamic Penal Code on Shari’a Punishments

Although in the Islamic Penal Code of 1392, the principle of legality of crime and punishment, in general, and in the case of Ta'zirat, Qisas and Diyat, in particular, has been accepted, at the beginning of Article 10, dealing with the non-retroactivity of criminal law, there is a phrase that seems to remove Shari’a punishments from this rule. In this study, first of all, it is stated that government regulations (Nezamat & Mogharrarat) encompass all statute codes, including the previous laws concerning Shari’a punishments, and these punishments are not retroactive. Secondly, considering the acceptance of the principle of legality of crime and punishment in Ta'zir, Qisas and Diyat, and considering the fact that the rule of non-retroactivity of criminal law is a definite and undeniable result of the principle of legality, the only exception to this rule is the inclusion of the non-mentioned Hodud in the case of subsequent legalization. Third, the execution of a later Shari'a punishment is permissible only if the perpetrator has not been previously convicted and punished, for example, in the form of Ta'zir. In any case, the author suggests removing “government regulations” (Nezamat & Mogharrarat) from the beginning of the article 10.