Thursday June 30, 2022

Criminal limitation

March 23, 2020

A few weeks back, I had shared my concern in an article in these pages that "most people involved in public life in Pakistan still live in the perpetual fear of getting arrested and detained by the state – even if they are completely innocent" (‘Laws for liberty’, Feb 28). The arrest of the owner of Pakistan's largest media group has brought this issue to the fore, once again.

Please take a moment to reflect on the facts. The offence of corruption allegedly took place back in 1986. NAB opened an inquiry into the matter in 2020 – 34 years later. On March 12, a day when the accused had voluntarily gone to appear before the investigators, they thought it proper to arrest him. The next day, the honorable judge before whom the detained accused, an old man, was presented, saw nothing wrong with this totally un-called-for infringement of a citizen’s liberty. To the contrary, detention was extended for another 12 days. It is as if we did not have a right to liberty enshrined in Article 9 of our constitution.

You would have to be particularly naive to attribute bona fides to government officials who choose to open up a 34-year-old case against one of their vocal critics, and then arrest him despite his cooperation with the investigation. So palpable is the mala fide here that there is a good chance, sooner or later, that some constitutional remedy will work out for the accused. However, from a public policy angle, it is important to remember that this is not the first time we are seeing something absurd like this. It is part of a worrying pattern of abuse of state powers for harassing critics and opponents.

Let’s not forget that the much-trumpeted Avenfield saga was ultimately about money allegedly embezzled at an unknown date before 1992. No one in our justice system saw anything improper in pulling up a 25-year-old file. In May 2019, NAB investigators went even further and started interrogating the same accused person for an allegedly illegal land allotment in 1985.

The question is: How far back can the state dig into a citizen’s past records? Does our law provide any deadline for initiation of investigation and prosecution?

The general answer is: No. Pakistan does not have a statute of criminal limitations. It is because of this legislative gap that your adversary can go to the police station (or NAB), allege a 70-year-old crime against you and, assuming he gels well with the investigation agency, get you arrested. While conviction in such a case would be rather difficult, that’s also a possibility. This scheme of law is, quite obviously, a recipe for abuse of state powers. We are seeing the results.

Every lawyer knows that we do have a rather detailed and complex law of limitations in the field of civil law: Limitation Act, 1908. It provides expiry dates of all sorts of civil claims, the longest of which is only six years. But there are analogous deadlines provided in the field of criminal law. This is a serious problem

So why don't we have a law of criminal limitations? The story goes back, once again, to the legacy of English colonialism.

Back when our Code of Criminal Procedure was first drafted in 1861, the English themselves did not have any law of criminal limitation. The prevailing principle in English law was: “nullum tempus occurrit regi”, ie no lapse of time bars the king. In other words, a state-initiated prosecution could not be subject to any limitation whatsoever.

The idea of criminal limitation came, instead, from the civil law tradition of continental Europe. After the French Revolution, French jurists started codifying various branches of the law. In what became known as the Code Napoleon, a provision regarding limitation on investigation and prosecution was first introduced. Almost all subsequent codes of criminal procedure which have been written in continental Europe have similar provisions: for instance, the German Criminal Code. 1998 (Article 78), Swiss Criminal Code, 1937 (Articles 97 to 101), Polish Code of Criminal Procedure, 1997 (Article 17) and Criminal Procedure Code of the French Republic, 2006 (Articles 6 to 9).

When India revised its Code of Criminal Procedure Code in 1973, it also added a provision related to limitations (Sections 467 to 472). In 1980, the English themselves introduced a six-month limitation on all criminal cases triable before magistrates. This was done through promulgation Section 127 of the Magistrates’ Act, 1980. Federal law in the United States also prescribes limitation periods. Most states in the US also have limitation periods for criminal proceedings. Nowhere is the limitation for embezzlement charges more than 11 years ago.

It is a sobering thought that if our parliament had timely enacted a clear and fair law of criminal limitation similar to what most other jurisdictions have, the Panamagate farce could have been avoided. We would have been spared so much political and economic instability.

To sum up, much that happens by way of state persecution of political critics can be prevented or at least mitigated through appropriate legislative intervention. It’s already late, but there is still time to act.

The writers are practising lawyers in Islamabad.