You may have heard of people and things going missing, but Bhutan is facing a unique situation of enacted laws going ‘missing,’ among many other major legal anomalies found by the Law Review Task Force, set up by the Cabinet on 20th April 2015.
The government set up the task force to review all laws and related policies, rules and regulations to ensure that they are relevant, and that their implementation actually benefits the country and people.
His Majesty the King in the opening session of the Parliament on 16th May 2014 cited examples where “people in some countries had lost faith in law and confidence in democracy due to proliferation of laws, which were hastily enacted, poorly implemented and caused social difficulties for the people.”
Citing His Majesty the King, the Prime Minister in his annual report titled ‘State of the Tsa-Wa-Sum’ on 19th June 2014 said the government would have a task force by 2015 to review existing laws.
The Task Force has come up with a report in June 2015 that has found several inconsistencies and problems in even major Bhutanese laws used regularly by people and institutions, enough to even puzzle the best lawyers and judges in Bhutan.
The Task force found around six Acts that are included in the list of Acts but no copies of the actual laws could be found. These laws were Life Insurance Act 1953-1959, Stamp Act 1968, Tourism Act 1972, Customs Act 1980, Law of Taxation 1980 and Pasture Development Act 1991.
It was found that Two Acts are even yet to be implemented despite being passed by the Parliament.
Until the enactment of the Alternative Disputes Resolution Act (ADR), disputes were settled by the National Arbitration Committee (NAC) under the Construction Development Board (CDB). However, with the ADR Act the NAC has no jurisdiction and the CDB refuses to entertain disputes. The task force says there is an urgent need to implement the ADR Act by establishing an ADR Center and appointing a Chief Administrator as per the Act.
The Domestic Violence Prevention Act and Child Care and Protection Act provides for the appointment of certain officials like the protection officer and welfare officers which at the moment has not been implemented.
Though the provisions of the Lhengye Zhungtshog Act of Bhutan 1999 and the Mechanism for Vote of Confidence in the Druk Gyalpo 1999 have been included in the National Assembly Act and the Constitution, these laws have not yet been repealed.
However, the biggest problem is with the conflict between various laws. The task force came across as many as 18 major Acts that were in conflict with each other and required harmonization. This included crucial laws like the Penal Code, Civil and Criminal Procedure Code, Election Act, ACC Act, Tenancy Act etc outlined below.
The report said that the Constitution provides for Constitutional offices to be independent and these offices also have respective Acts which outlines how they are to function. However, in reality these offices are not totally independent in terms of financial and human resources having to depend on civil servants governed by the Civil Service Act. This, it says, leads to conflict between the Civil Service Act and the other Acts.
The task force has recommended for harmonizing the Royal Audit Act, Election Act, Anti Corruption Act (ACC), Judicial Service Act and Civil Service Act pertaining to financial and personnel independence in the light of the independence guaranteed by the Constitution.
Section 167(2) of the ACC Act says that a public servant shall be suspended from the day of being charged in court but the Supreme Court in the OAG Vs ACC case said it is not necessary and gave discretion to the competent authority.
In the case of Members of Parliament the law is silent on their suspension in case of any criminal proceedings in the court. The law only says the Speaker can suspend an MP for breach of Parliamentary conduct when it is in session. It is more confusing for cabinet members as both the PM and Speaker are competent authorities.
The recommendation is to give clarity in either implementing the suspension provision of the ACC Act as it exists or amending it in line with the Supreme Court ruling. In the case of MPs the recommendation is to consider amendment of laws to bring in clarity.
Another issue is that when the ACC Act and Penal Code were amended in 2011, the provisions for embezzlement were removed from the Penal Code and inserted under the ACC Act. As a result the RBP has not been able to register and investigate such cases and some courts have not accepted embezzlement cases in the private sector filed by the police.
The recommendation is that since it is not feasible for the ACC to investigate all embezzlement cases in the private sector involving public officials and resources the provisions should be reinstated in the Penal Code.
Article 10(24) of the Constitution says the NC shall complete five years and the next NC should be constituted when the existing NC’s term ends. The report talks about considering an amendment that would bring clarity on whether if sitting NC members can resign to re-contest elections.
The report says that since the provisions relating to rape of a child between the age of 12 and 18 is creating a lot of social problems, this whole provision may be revisited. It also says there should be a clear definition provided for child molestation and sexual harassment. The question on whether molestation applies to a minor and sexual harassment applies to an adult remains.
In case of smuggling section 279 uses the word ‘restricted and prohibited’ but in reality there are different lists for restricted goods and prohibited goods. The recommendation is to change it to ‘restricted or prohibited.’
There seems to be different interpretations by different courts on section 114 by which a child of 12 years and below cannot be held for any offence committed by him or her. Section 117 says parents have to pay damages if the child is found guilty. The problem arises how to determine the child is guilty if the law does not allow charging a child. The recommendation is put in place a due process to determine the guilt of the child.
As per section 18 if the amount involved in the crime exceeds 30 years of minimum wage the accused gets a felony of third degree of five to nine years. The task force says that this sentencing was encouraging criminals since they had to serve only a short time even if the amount involved was huge like in the Cats eye (Dzee) case where victims can be put to immense loss. The advice is to add another sentencing category of second degree felony.
There is also a need to harmonize the sentencing provisions between the Penal Code and the ACC Act.
Civil and Criminal Procedure Code
The disqualification provision of the Constitution and all others laws says ‘convicted and sentenced to imprisonment’. The task force says there is no clarity what will happen in case of thrimthue or if conviction refers to only physical imprisonment. The recommendation is to define the term convicted and sentenced to imprisonment in the relevant laws or Interpretation Clauses Act.
The task force says currently the bail amount is one to 30 percent of the income of the surety which can be very low and so judges in such cases are reluctant to give bail. The recommendation is to reconsider the bail amount.
One recommendation is to insert a chapter to manage illegal proceeds of a crime, before, during and after a trial, for example in cases of dzee custody.
Since the existing laws do not expressly prohibit retrospective application of both procedural and substantive law more clarity is required according to the task force.
If section 22(d) were literally followed then all government cases must be litigated before the High Court only according to the task force. The recommendation is to clarify jurisdictional issues.
There is more clarity sought on Bha provision over which there is a lot of confusion.
Currently section 156 applies to deferral of the case in only criminal case but this must apply to civil cases also according to the task force.
One more recommendation is to provide clarify at what stage of the case, plea bargaining can commence and by whom and to what extent.
Sections 35 and 36 of the Evidence Act points out the need for two legal stamps and two witnesses for a valid agreement but this is not possible when the government executes an agreement with international stakeholders. The recommendation is to delete section 35 and 36.
The Tenancy Act which governs issues pertaining to lease of units and land has not repealed chapter 5 of the Loan Act 1980 which also provides for rentals and lease of land. The recommendation is to repeal the whole outdated Loan Act.
In the case of the Nationality Law and the Citizenship Act the recommendation is to consider consolidating the two Acts in line with the Constitution since both govern the same subject but were adopted at different times.
The task force said that give a lot of issues regarding private moneylenders and, also as most of them facilitated gambling people charging them huge interest, the scope and application of the Bankruptcy Act of Bhutan and Moveable and Immoveable Property Act on them could be clarified.
It has also recommended that the Sales Tax, Customs and Excise Act 2000 give a clear definition of international organizations and agencies.
The taskforce said that conducting a comprehensive and exhaustive review of the laws, with the objective to harmonize and consolidate conflicting laws require a longer period of time.
The taskforce is composed of members from the Cabinet Secretariat, Bhutan National Legal Institute, Judiciary, Office of the Attorney General, a Private law firm and the Royal Bhutan Police.
The government is expected to follow up on the recommendations of the task force in better harmonizing the laws by putting up some of them for amendment.