The Rule of Law and Legal Controversies—The Impact of Covid-19 in Bhutan

Article 10 Section 1 states “there shall be a Parliament for Bhutan in which all legislative powers under this Constitution are vested and which shall consist of the Druk Gyalpo, the National Council and the National Assembly.”

Bhutan: The Role of the Constitutional Monarch in a Public Health Crisis Sonam Tshering* and Nima Dorji 279 to 292, in covid-19 in asia, law and policy contexts (victor v. ramraj). 279–292.

This program was instituted almost a decade ago by His Majesty to inculcate sense of volunteerism in disasters and other public functions. With the national address, for a few thousand slots, thousands rushed, and, in a few minutes, the registration got closed and website even crashed. This shows the influence of His Majesty in uniting the nation.

Here “His Majesty” is referred to the Fourth King of Bhutan, the father of current king.

sonam tobgye, the constitution of bhutan - principles and philosophies.

Bhutan’s Constitution provides three forms of emergency. The Article 33 Section 1 provides the State of emergency in case if the “if the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion.” Article 33 Section 2 public emergency as discussed, and Section 3 allows the Financial Emergency “if His Majesty is satisfied that a situation has arisen whereby the financial stability or credit of Bhutan is threatened.”

Right to freedom of speech, opinion, and expression.

Right to information.

“Freedom of the press, radio and television and other forms of dissemination of information, including electronic.”

“The right to freedom of peaceful assembly and freedom of association, other than membership of associations that are harmful to the peace and unity of the country and shall have the right not to be compelled to belong to any association.”

“A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation.”

Article 7 of the constitution provided the fundamental rights which is similar to Indian Constitution.

Section 3 of this Act restricts the emergency which is limited to Article 33 Section 2 of the Constitution only.

Bhutan’s Constitution provides three forms of emergency. The Article 33 Section 1 provides the State of emergency in case if the “if the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion.” Article 33 Section 2 public emergency as discussed, and Section 3 allows the Financial Emergency “if His Majesty is satisfied that a situation has arisen whereby the financial stability or credit of Bhutan is threatened.”

Section 3 of this Act restricts the emergency which is limited to Article 33 Section 2 of the Constitution only.

This may be due to His Majesty the King. His Majesty the king is considered as the unifier in the country particularly in times of crisis or disaster. The democracy itself came as an imposition from the throne without having to fight for. Therefore, monarchs in Bhutan enjoy reverence, respect, and faith in His Majesty’s leadership. He made multiple visits to all affected areas risking his own life. Those visits inspired to people to adhere to lockdown conditions.

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Bhutan enacted Tobacco Control Act in 2010. This law made importation, distribution, exportation, manufacture, supply, sell and buy tobacco and tobacco products. The only exception was importation for personal use with payment of heavy taxes and duties. Violation of the law could land a person in prison. Bhutan also enacted the Narcotic Drugs, Psychotropic Substance and Substance Abuse Act, 2005 prohibiting any form of illegal importation or illicit trafficking of drugs.

oag received 105 covid-19 related cases so far the bhutanese, https://​thebhutanese.​bt/​oag-received-105-covid-19-related-cases-so-far/​ (last visited Aug 10, 2022).

Section 11.

Section 12.

Section 50.

Section 51.

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government has not breached tobacco act or constitution: ag kuensel online, https://​kuenselonline.​com/​government-has-not-breached-tobacco-act-or-constitution-ag/​ (last visited Jul 26, 2022).

Chili is considered an essential ingredient product and essential food item in Bhutan.

The likelihood of negative impact due to withdrawal symptoms are more dangerous and medically risky than tobacco. There are hardly any reports where people died due to withdrawal symptoms of tobacco products.

PDP was a ruling government from 2013 to 2018 and also served as former opposition party during the first government after Bhutan transitioned into democracy (2008–2012).

DNT (Druk Nyamrup Tshogpa) is name of the political party which is currently ruling Bhutan.

He was also former Attorney General, Former judge and practicing lawyer.

Central Monastic Body.

Repeal 5. This Act repeals any provision of the Pay Revision Acts, Notifications, Circulars, Rules and Regulations on pay revision that are inconsistent with the provisions of this Bill.

Section 65. The amendment of this Bill shall be by the way of addition, variation or repeal effected by Parliament.

While I wrote a legal op-ed in the National Newspaper this time on this issue. But no other formal channels challenged this notification.

Generally, though there is no written law which dictates when the courts should complete an adjudication of any cases, there is an informal process and instruction from the Supreme Court that every case must be resolved within twelve months after the case is registered by the court. The judges are required to explain the delay of any cases beyond 12 months whether criminal or civil. Going by the experience, most criminal cases take an average of three to four months to complete prosecution. However, conviction within a week or four days was an unprecedented speed in which the criminal trials were conducted. While there were no allegations or complaints against such prosecution, it was a trend of worry on the aspect of ensuring procedural rights to the accused. Numerous lockdowns and numerous restrictions due to COVID-19, access to right to counsel was not only challenging but practically difficult and, in some instances, impossible. The other worry is that even if the state agencies like Office of the Attorney General or police were determined to speed up to deter people from illegal crossing of the border, the judiciary seemed to be in the similar boat. There are no records where the judiciary refused to allow such prosecution.

Section 70, Police Act of Bhutan, 2009 states that “Police shall have the power to prosecute any person for any criminal offense other than misdemeanor and above.” Under the Penal Code of Bhutan, every crime in Bhutan is graded into two broad areas. The offences of felony and offences of non-felony. The felony offences are divided into four types, the first degree, the second degree, the third degree and the fourth degree. The prison term under felony ranges from minimum of three years and maximum upto life sentence. While non-felony offences are misdemeanor, petty misdemeanor and violation. Police can prosecute only for petty misdemeanor and violation. Violation means a fine up-to three months. However, most of the offences under COVID-19 were misdemeanor or above.

The Criminal Nuisance is defined under Section 410 of Penal Code of Bhutan 2004 (PCB).

The term “knowingly” is defined under Section 55 of the Penal Code of Bhutan. As per this provision, it is considered “knowingly” if the “defendant acts knowingly with respect to a material element of an offence, when the element involves, the nature of the defendant’s conduct or circumstances and the defendant is aware that his conduct is of that nature or that the circumstances exist; or a result of the defendant’s conduct and the defendant is aware that it is practically certain that his conduct will cause that result”.

The term “Recklessly” is defined under Section 56 of PCB. It is defined as “a defendant acts recklessly with respect to a material element of an offence when the defendant consciously disregards a substantial and unjustifiable risk that the material element exists or would result from the defendant’s conduct. The risk must be of the nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to the defendant, his disregard for the risk constitutes a gross deviation from the standard of conduct of a reasonable person in the defendant’s situation”.

Section 96.2 of CCP, 2001

Section 96.2 CCPC, 2004.

Section 17, Penal Code of Bhutan, 2004.

not all are happy with the strict face mask protocol, punakha bbscl, http://​www.​bbs.​bt/​news/​?​p=​156875 (last visited Jun 26, 2022).

Section 158 of the Civil and Criminal Procedure Code states that “No person shall be subjected to arrest or detention, except in accordance with this Code.”

two men arrested for breaching covid protocols bbscl, http://​www.​bbs.​bt/​news/​?​p=​164328 (last visited Aug 7, 2022).

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two doctors penalised for breaching covid-19 protocol kuensel online, https://​kuenselonline.​com/​two-doctors-penalised-for-breaching-covid-19-protocol/​ (last visited Jul 26, 2022).

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Under Section 125 of the Penal Code of Bhutan, 2004 states that “A defendant shall be guilty of the offence of aiding and abetting a crime, if the defendant engages in a conduct designed to accommodate or help another person in the commission of a crime.”

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Section 5 of Civil and Criminal Procedure Code, 2001 states that “the Courts shall decide matters before it impartially on the basis of fact and in accordance with the rule of law.” But in case of COVID-19 cases, the issuance of standing order to award maximum sentence is unprecedented and violates numerous CCPC provisions. “The Supreme Court issued an order on 27 April 2020 to lower courts instructing the judges to apply sections 187.3 (to meet the ends of justice, courts may alter or add to any charge before the judgment is pronounced) and 188 (right to a speedy trial) of CCPC and to impose the highest penalty as a “deterrence” to the accused.”every court is independent of each other when it comes to judicial decisions kuensel online, https://​kuenselonline.​com/​every-court-is-independent-of-each-other-when-it-comes-to-judicial-decisions/​ (last visited June 29, 2022).

monggar district court sentences 16 men and eight women to six months in prison for breaching covid protocols bbscl, http://​www.​bbs.​bt/​news/​?​p=​144422 (last visited Aug 8, 2022).

how complacency and lax protocols led to the nation’s second covid-19 outbreak the bhutanese, https://​thebhutanese.​bt/​how-complacency-and-lax-protocols-led-to-the-nations-second-covid-19-outbreak/​ (last visited Aug 10, 2022).

Bhutan shares huge porous border with India. During the lapses, India was facing a severe wave of COVID-19 cases with thousands of deaths.

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how covid positive foreign workers, a more infectious variant and laxity caused the wangdue outbreak the bhutanese, https://​thebhutanese.​bt/​how-covid-positive-foreign-workers-a-more-infectious-variant-and-laxity-caused-the-wangdue-outbreak/​ (last visited June 30, 2022).

Explaining this provision, the Fourth King said “The Supreme Court is the Guardian of the Constitution and must ensure its credibility and relevance in perpetuity. As the Guardian, the Supreme Court must truly understand the significance and purpose of the Constitution as a living document, interpret its content with incontestable clarity and without failing vigilance. As the final authority on interpretation, the Supreme Court must not allow the Constitution to be undermined through misinterpretation at any time, it must inspire the trust and confidence of the people in the world Constitution by safeguarding its integrity as the fountain of legislative wisdom, and it must maintain the independent authority of the Constitution from all other power centres and institutions in the land.” (Royal Audience by His Majesty Jigme Singye Wangchuck, 30 November 2009 to the Chairperson, Constitution Drafting Committee).

Article 21 Section 10, Constitution of Bhutan.