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 14th
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
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