Should past actions be judged with today’s standards? How far?

The only one and the same thing that RIM resembles the University from where I have graduated is about the lecture series. Here at RIM it is programmed as Eminent Speaker’s Talk Series which happens once in every month by different speakers but back in my University it used be known as ‘Guest lecture’ which happens periodically by different eminent jurists and justices from across the world over especially on legal issues. Annually depending on the quality and quantity of lectures hosted in the University, the University gets credited in its rank. As such, at RIM the second eminent speakers talk series for the month of March was happened on 14^th February, 2013 by Michael Rutland on the very relevant theme “Past is in another country and they do things differently there”. Looking to his very theme perse and the way he gave the talk it was fathomable that he seemed to advocate past is already passed and no more we can dig out the past actions no matter whether it was lawful or unlawful action. Upholding very this reason, on the backdrop of Gyelposhing Land Scam Case he asked to the audience, should past action be judged with today’s standards? But How far?. Seeing this question, abruptly many would comment either we cannot judge past actions or morally it is mistaken to judge past action with today’s standards. But let’s analyze legally and see how far it goes!

Since the time immemorial our Bhutanese society has been always ruled by law be it written or unwritten and as such there was no anarchy prevailing at any point of time. Until we have formal codification of laws we were always ruled by our religious beliefs which had the force of law imbibed in such belief especially the force of natural law. By 1980s we already had penal laws in placed wherein all penal offences were specifically defined, and the time, where we did not have codified laws that define penal offences and ruled by general unwritten laws particularly religious beliefs was gone. Given such fact in 1980s, the instant issue is whether the act committed by Gyelposhing land allotment committees was in violation of penal laws or in violation of administrative procedures? Generally no act is criminal unless punishable by law. No, doubt we had penal laws that time in the Thrimzhung Chhenmo, but were they violated the same then? If they had violated Thrimzhung Chhenmo then their act is punishable no matter how many years passed since the commission of such unlawful Act.

In the civil case there is equity principle called doctrine of Laches which is equitable equivalent to Statues of limitation which provides time barred litigations. Statues of limitation barred the plaintiff to claims his rights if he does not make in time stipulated in the Statue. Similarly the Doctrine of laches is based on the maxim that “equity aids the vigilant and not those who slumber on their rights” (Black's Law Dictionary). The doctrine does not allow plaintiff to enforce his claim if a long delay in asserting the such right or claim has prejudiced the adverse party. However, unlike statutes of limitations which clearly specifies the time limit, doctrine of laches leaves it up to the court to determine, based on the unique facts of the case, whether a plaintiff has waited too long to seek relief. However, in Bhutan still we don’t have limitation act for waiving such right of plaintiff and until such time we have Limitation Act even for civil litigation the plaintiff can always claim his right irrespective of time elapsed but it should be subject to doctrine of Laches that it should not prejudice the adverse party by virtue of his undue delay in seeking the claim.

In the criminal jurisprudence there is no such concept called time barred prosecution or time limitation for prosecution and neither doctrine of laches is applicable. The only time limitation we have in our Civil and Criminal Procedure Code 2001 regarding prosecution is regarding the production of accused within 24 hours if the arrest was without the warrant. There is no time limit for prosecution after the commission of crime. Only few countries have time limitation for prosecution particularly in minor crimes but for heinous crimes like murder, rape, etc there is no time limitation for prosecution. Even international crimes like genocide, war crimes, crime against humanity, etc are not subject to any statue of limitation.  Unlike in civil litigation, in criminal prosecution if there is undue delay in prosecution, such delay would not be attributed to prosecutors’ fault or investigating agencies’ fault but such delay would be because of delay in knowing such commission of offence. No way would the person who committed the crime turn in himself and as a result to know such facts it takes time and the prosecution can be initiated only as and when such commission of offence comes to their knowledge through media or through individual complaints. Unlike in civil case where the fault for undue delay in claiming the right lies with plaintiff, in criminal prosecution undue delay cannot be attributed neither to prosecution agencies nor to the victim.

Further, there is no way the delay will prejudiced the  accused rather if it is left without prosecution it will affect the society for such person will repeat such commission of offence.  And also, there is no way that if such commission of crime is left without prosecution or unpunished for it has passed so many years since the commission of crime, that the accused would have learned the lesson or reformed himself on his own accord, rather such accused would repeat the commission of offence. Therefore, irrespective of amount of time (decades or centuries) elapsed since the commission of act and if such act was the punishable act at that time, it should be brought to justice, as and when such knowledge of commission comes to the fore or on the complaint of victim or any other person, for the reasons aforementioned.

The next issue is whether the past actions can be judge with today’s standards or laws? The Penal laws prevailing at the time of allotment of Gyelposhing land was Thrimzhung Chhenmo and only from 2004 the Bhutan Penal Code came into force. In 1980s we did not have separate Act that deals with corruption offences, all we had was Thrimzhung Cheenmo for all criminal and civil laws both procedure as well as substantive laws. Unlike today where we have Anti-Corruption Commission Act, 2011 which defines all corruption offences and empowers the commission to investigate  all corruption related offences, back then until 2006 since there was no separation of corruption offenses from other offenses, all investigations were done by Royal Bhutan Police. The investigation of corruption offenses were taken over by Anti Corruption Commission only from 2006 onwards but from 2011 onwards Anti-Corruption Commission Act,2011 did not expressly stipulates whether Anti-Corruption Commission can investigate corruption offences that was committed before  2011 other than the investigation going on under 2006 Act? With regard to investigation going on under Anti-Corruption Commission Act, 2006 but not completed when 2011 Act came into force, 2011 Act expressly empowers the Commission to continue investigation under the 2006 Act as if in force. As to the power of ACC to investigate the offence committed before 2011 Act came into force, despite there is legal presumption that laws always have prospective application I agree with the High Court of Bhutan’s finding in the Gyelposhing Land Case that unlike substantive law, the procedural law will have retrospective application given that it will not prejudice the rights of the parties. The Gyelposhing land allotment committee members were not judged whether their act was criminal or not based on present law, the Penal Code of Bhutan or ACC Act, 2011, but they were judged based on the penal laws prevailing at that time. The only present law that applied to them was procedure part of ACC Act, 2011. If there was no ACC in place also another investigating agencies would have investigated and never let of scot free without bringing them to justice as when they committed such crime there was already existing law that criminalizes such acts. They would have been let off scot free only if there was no existing penal laws at that time that criminalizes such acts as the maxim Nullum crimen, nulla poena sine praevia lege poenali[ no crime (can be committed), no punishment (can be imposed)  without a previous penal law]  clearly states that nothing is crime unless there is previous penal law existing at the time of commission of such act.

Further, no way was ex post facto law applied to them. It was not applicable to them also. Ex post facto law means ‘law after  fact’  which means law that punished person for some prior act  that, at the time it was committed, was not illegal. Expost post facto law cannot be applied to any person as in some countries it prohibit such application of laws by their constitution itself. Our constitution does not provide such provision but nevertheless we cannot apply such laws as it will prejudice the rights of parties. In Gyelposhing land case also court did not apply and it was not relevant at all as their act was not charged under ACC Act, 2011.  More over their act was not legal when they committed, there was law which criminalizes such act and hence their act was illegal when they committed.

There is legal presumption that laws always have prospective application and also ex post facto laws cannot be applied but since all laws are enacted and passed through parliament, the parliament has plenary power to legislate on everything in anyway they like as long as its within the ambit of constitution. They can make the laws that have retrospective effect also. So whether the past actions can be judged with today’s standards can be also depend on who sets those standards as they have plenary power to set such standards. The parliament had power to change the application date of ACC Act 2011 any way they like without leaving any ambiguity but they did not do it because of which when there is no express provision in the Act on such matter the judiciary was compelled to invoke its discretion to interpret such law as per canons of interpretation which the judiciary rightly and justly interpreted such ambiguity of ACC Act, 2011. Therefore, no matter how long past after doing things differently in another country , if those things were against the law, the long arms and bright eyes of the law would not leave without bringing such acts to justice

Constitutionalism and the making of Bhutanese constitution

Generally the concept of constitutionalism refers to “a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”[1].It basically means the idea that government should be limited in its powers and that its authority depends on its observation of these limitations. The limitations relate to power of three branches of the government, the legislative, executive and judicial powers[2]. Further, for government to have limited power and to have limitations on its authority, constitutionalism comprise of many principles. Louis Henkin enunciates certain tenets of constitutionalism, which according to him includes government according to the constitution; the rule of law, separation of power; sovereignty of the people and democratic government, constitutional review, independent judiciary; limited government, guarantee of individual rights, and checks and balance[3]

With regard to constitutionalism in Bhutan, going by above definition of constitutionalism and looking back the way our country was functioning until 2008, constitutionalism was prevailing in Bhutan long before the adoption of Constitution itself. Moreover, a country with a written constitution does not necessarily practice constitutionalism. Like most socialist constitutions, although written, do not place limits on what the government can do despite constitutional government being a limited government.  Similarly a country without a written constitution, on the other hand, may also operate under constitutionalism. Like the United Kingdom does not have a written document called ‘The Royal Constitution’ but no one doubts that the British government is not a constitutional government. Although Britain does not have a single written constitution, it has a number of documents that have constitutional force[4]. Their written documents, together with the British political and legal traditions, form the basis of a constitutional government.

 In Bhutan until 2008 we did not have written constitution but we had many laws in placed. Ever since the codification started in 1957, in every legislation, to some extent some principles of constitutionalism were already included and we have been following and practicing too. We already had separation of powers and independence of judiciary. We also had Judicial Service Act of Bhutan, 2007 in place which guaranteed the independence of judiciary. We had Lhengye  Zhungtshog in placed long time back which was performing executive functions of the  government and National Assembly as legislature. The judicial review was also existed long before 2008. Further, the decentralization of power started since 1981 with establishment of DYT and further establishment of GYT in 1991 and devolution of executive power to Lhengye  Zhungtshog in 1998 by His Majesty the Fourth Druk Gyelpo, which was actually the gradual evolution of democratization process.  Hence, these all testimonies that Bhutan was operating under constitutionalism long before adoption of written Constitution in 2008.

As aforementioned, the practice of constitutionalism prevailed in Bhutan long before adoption of written Constitution of Bhutan in 2008 but embodiment of principles of constitutionalism into written form to a supreme document so called constitution or the making of constitution started only from 2001. Unlike other countries, in Bhutan no lives were lost, no blood was shed, and no violence was prompted in pursuit of having the written constitution. Neither there was any external pressure nor internal pressure or compulsion to have written a constitution in Bhutan. The idea of making the Bhutanese Constitution was neither demanded nor originated from will the people of Bhutan but rather it was a shocking as well as a golden gift from our far sighted and visionary leader, His Majesty  the Fourth Druk Gyelpo.

 His Majesty Jigme Singye Wangchuck made the declaration of the need to draft a written constitution to the nation on 4th of September 2001. Accordingly under the Chairmanship of Chief Justice Lyoonpo Sonam Tobgye 39 member drafting Committee was formed which comprised of representatives from all sections of the society. The actual process of drafting started from 30th November 2001 with inauguration by His Majesty the Fourth Druk Gyalpo. The drafting committee after having many deliberations and meetings, and after referring more than 100 constitutions across the world, lifting their best principles of constitutionalism and avoiding the worst practices of their constitutionalism, they came out a final draft in 2005 which was then distributed to Public for their comments. Thereafter His Majesty the Fourth Druk Gyelpo took  pain to go every Dzongkhag for consultation with people on the draft Constitution and finally after completing the consultation, the Constitution of the Kingdom of Bhutan was adopted in 2008 by first ever democratically elected government. Since then Bhutan has been experiencing true constitutionalism in every aspect.

Some jurists claim that mere existence of written constitution does not mean in  practice there is genuine constitutionalism rather despite having constitution some countries have facade constitutionalism. Like in South Africa under apartheid there was a constitution and respect for it, a separate judiciary, but no universal adult franchise and permanent exercise of emergency powers[5], hence despite having constitution there was no genuine constitutionalism in practice. As far as the Bhutanese Constitution goes, all the best principles of constitutionalism are embodied in our constitution like separation of power, rule of law, independence of judiciary, judicial review, protection of individual rights, etc. Despite our constitution being just five years old, in practice there exists a genuine constitutionalism. In the case between Opposition Party and the Government, when the Supreme Court of Bhutan declared the raising of tax by government without following proper procedures was unconstitutional, it clearly sent the message that there is rule of law, independence of judiciary and check and balance exist in practice. Therefore, till now in Bhutan after adoption of Constitution genuine constitutionalism exist both in letter and in practice.

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[1] Don E. Fehrenbacher, “Constitutions and Constitutionalism in the Slaveholding South “ University of Georgia Press, 1989,  p. 1.

[2] “What is constitutionalism” available at http://www.hrschool.org/doc/mainfile.php/lesson49/187/ (last accessed on 4/06/2013.

[3] Ibid.

[4] These documents include Magna Carta (1215), the Bill of Rights (1689), the Act of Settlement (1701), and certain special acts of the British Parliament.

[5] Mark Cooray “Constitutionalism Means More Than Just Having A Constitution” , available at  http://www.ourcivilisation.com/cooray/btof/chap171.htm  (last accessed on 4/06/2013)

 

A picnic with His Majesty and Her Majesty the Queen at Parizampa

As HM promised during his visit to RIM we had a picnic today at Parizampa. We the RIM Trainees and Faculties were blessed and fortunate to have a golden opportunity to have such a great picnic with His Majesty and Her Majesty. It was really a great and fulfilling day ever in my life. How happily our Majesties down to earth interact with trainees and faculties. HM with beautiful smile cracking so many jokes walked around and interacted with us the every now and then. He spent his precious time with us about 4 hours. Right after yummy lunch there was a few cultural items and games presented from RIM fraternity.

The way HM holds Her majesty the queen’s hand shows how much they are committed and in love to each other. It also shows how strong their bond is and how much they are mean to each other.  How beautifully and lovely they hold hands and walk together. No matter whether they sit or walk they never part their hands. They just sit holding hands each other. It’s clear how much Her Majesty cares our beloved King. Really liked their love and no doubt their wedding was made in heaven only.

It was sunny in the morning but towards mid day the sun was slipping away. Luckily weather favored us despite becoming quite dark about to rain but it did not and happily ended our picnic. After ending the program when the HM and Her Majesty were about to see off His Majesty made a point to speak for a while for everyone. He said when he watched those cultural programs he became emotional realizing that our country is special country and special because we have a special people and such special culture which makes country special . He also said,   "When ever I visited Schools across the country i always used to ask those students who were, back then, just kids whether they would be able to serve the country? Proudly on top their voice they would nod ‘yes’ and today I’m very much delighted to see those kids grown up and come to this stage where I can meet them and interact them. Those kids were you all and having reached to this level is the greatest achievement you have made in your life. Study hard, I pray may we meet for such occasion again and again in the days to come”

We had a wonderful day. No doubt it will be cherished as one of my greatest and most fulfilling day ever in my life. We Thank Your Majesties for you granting such a great life time opportunity to us. Long live your majesties always!

Happy Teaachers' Day

HM's Audience at RIM

His Majesty visited RIM on 26^th April 2013 and granted audience to the trainees and faculties here. Our beloved king is king in everything.For the sake of  people he trudges through all corners of Bhutan, not just limited to places where four wheels can reach and feasible to reach but even via two foots to every nook and cranny of Bhutan as he often says ‘nothing makes him happier than meeting the people’. When a father or Karta heads just a family  he concerns so much for the welfare of the family everyday round the clock, as a king can’t think of how much concerns, worries and burdens must be burning everyday round the clock within him. No matter what, no person shall be so much concerned and worried as much as a king does for his country. Given this fact and despite HM’s busy schedule he managed to visit here and address his concerns and expectations from the youth like us   who are at the brink of becoming so called civil servants.

He started with a very beautiful and meaningful phrase that ‘to know from where to where we have come you must know the history of our country’. With this he started his inspiring talk on the history of Bhutan right from sixteenth century, how our country used to be back then. He goes on to say how our forefathers suffered to make Bhutan an independent state. He said before there was a place in-between two giant states where there was no concept of state existed. All people separated by huge mountain terrains and gorges and even separated by distinct origins, dialects, regionalism, hierarchy, etc, but our forefathers took pain to survive through all those fragile situations and hardships and managed to unify our country and made an independent  state, post to which our beloved hereditary kings pushed forward to become what is today proudly called Bhutan.

He talked on the contributions made by kings. He also talked on how Bhutan survived through and upholds its sovereignty and independence when other neighboring states were fighting for their independence and freedom. Like in the south, India fighting for independence from British, in the north Tibet from China and also war between East and West Pakistan. And also, talked on how sadly Sikkim lost its independence and became 22^nd State of India and how Bhutan maintained friendship with Sikkim as it can be seen from 4^th King’s Coronation Picture  in 1974 where even Crown Prince of Sikkim was also presented there for coronation.

Then he goes on to say despite Bhutan being small and fragile Kingdom managed to keep diplomatic relations with India by 3rd Druk Gyelpo. Of all, the greatest achievement secured towards the end of third King’s tenure was that third Druk Gyelpo managed to get UN membership and out his excitement HM said third Druk Gyelpo had written a very touching letter. He said he has that letter and reads very often and he even read that morning when he came to RIM, where it says that “ I’m no doubt that sun of happiness and prosperity will shine in Bhutan though I wont live through mid day”. I’m not getting in verbatim but this is what I can recollect vaguely. After completing all the history and contributions he said first thing we have to do is the ‘consolidation of past’ which he meant we should know the history and realize how our forefathers had suffered for the country and managed to hand over our country in a better position to every next  succeeding generations . So, HM said, we should also work hard to hand over our country in a better position to next generation. ‘Let’s not be the first generation to fail’, he said.

After the history of country he talked on youth, education, economic development, political parties, democracy and debt. He said our quality of education is not moving at par with globalization and in 11^th  and 12^th  five year plan the quality of education should be stressed the most. He narrated an incident where kids pronounced crabs for grapes. He also talked on making Bhutan economically independent and self reliant for which we have to work hard. He described his coffee cup where cup, coffee, sugar, everything is imported except water. ‘Our country being very small with less population we must work hard and we don’t have anything except hydro power’, he said. He also talked on rupee crisis and country’s debt.

On democracy HM said democracy is precious gift from 4^th King and that should not be treated as achievement but democracy is just means to ends. Further said through democracy we should achieve so many things like economic development, peace and security of the country, etc. So, he said we should choose right and capable government. There are five political parties and he commanded us to participate in voting and choose right government.

On youth HM said he has been attending graduate orientation program for almost a decade and unlike past with number of graduates swelling every year, lately he has been seeing the quality of graduates deteriorating with every new batch coming in. So he said  he no more cares quatity of graduates but cares only quality.  He also said for him does not matter how many degree the  graduates holds what matters is ‘competency’. A person must competent enough to serve the county that is important and does not matter whether he holds a degree or not, he said.

It was such a day so much of sweltering heat and even under such a heat in an open space HM managed to spend his precious time with us. After an hour talk, towards the end he said he came across many who did not even know national news, so he urged all of us to keep reading and striving harder to take our country forward better than ever before.

May not be I ‘alone who was really inspired and moved from HM’s talk but all of the trainees might have surely inspired and moved from such a inspiring and captivating talk. Though it was under the sweltering heat but I know many would not have felt the heat all because of such a inspiring talk from HM, meaningful and brevity in words, and eloquence in speech no matter in English or Dzongkha, I’m just short of words to describe his talk. And, of all, the most interesting one was his last words. He promised to take us for Picnic on one of the coming days soon.  What a fortunate 2013 batch! ,we just got confirmation today and the picnic is scheduled on 4^th May, day after tomorrow on Satruday. Long Live Our King, Pelden Drukpa Gyalo!

Field trip to Tango

We have a course called ‘Tsema’ which is generally meant for Monks who are pursuing Buddhist Studies. It’s one of the teachings of Buddha which is considered to be one of the most important as well as toughest courses among others. Its’ etymology stands that “it's science of syllogism, logic and philosophy”. According to Gyelse Rinpoche at Tango so called Tsema is a Buddhist science to analyze and differentiate truth is truth and false is false and accordingly follow the truth and avoid the false. The monks being the religious persons are supposed to be committing only good things and abstain from committing harmful things, and to do this first they should know which is good and which is bad and for analyzing and differentiating such things they need the knowledge of Tsema which is also the religious purpose of having propounded  and learning Tsema. But in reality when we say Tsema most of people take it as a debate. Actually debate is just practical part of Tsema. Alike science with experiments, in Tsema also everything is based on proof. Like truth supported by justice to ensure true justice, in Tsema statement should be supported by proof which is conclusive proof or reason. To detect whether the proof is conclusive or not, there are certain conditions and ways and if those conditions and ways are met then such statements is considered as perfect statement.  

Unlike Monks, we the legal professionals have to study to build up our analytical skills as our profession is all about justifying, arguing, reasoning, scrutinizing, etc. Since our lecturer himself declared that he understood Tsema only after studying several times I still doubt how far we can grasp in just six months or else does it really can build up such analytical skills? I really doubt where can those conditions of Tsema for analyzing the proof, reasons, whatever be fit in the court proceedings. I think Monks up there had reason to taken aback as well as appreciate when we told them we are studying Tsema at RIM. For this purpose just to get more exposure on this course and to watch monks’ debate, led by our Tsema Lecture, today we had a trip to College of Buddhist Studies, Tango.

Everyone in the class was supposed to go but only 29 of us could make it and rest 11 could not make it. Unlike Chari Monastery, in Tango there is just one block but inside so many important and historic Nangtens. It was fortunate for all of us to visit there and seen all of it. We were blessed to have chaired the debate by HH Gyelse Rinpoche himself.  We have also seen him participating and debating with Monks. Watching the way they debate and their eloquence in debating and responses and hardly grasping even their topic of the debates we felt we have been just scratching on basics for all these three months. Above all, HH Gyelse Rincpoche was kind enough to even give a talk on the importance of TSEMA. He also gave us golden words of advice on various topics. Most importantly he gave us Jamyang Sel Drab Lung. 

On other front what to say their hospitality, really nice. They have dinning hall like our altar filled with Rinpoches’ portraits. Apart from academic trip we also felt like a dry picnic. In groups who would not enjoy!, Undoubtedly everyone does. Day scholars bought pack lunch for boarders and we really enjoyed their lunch in different dishes from different persons. While I thank each and every one up there for their arrangement for us and Rinpoche for his golden words, and our day scholar friends for their pack lunch, I’m looking forward to so many trips ahead, this is just a beginning ….