Thursday, July 4, 2013 | By: CHIMI DORJI

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 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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