The Bhutanese Leading the way.
On 16th May 2014, His Majesty The King, addressing the Parliament, expressed His Majesty’s concern about the proliferation and duplication of laws in the country and the need to harmonize and consolidate some of these laws.
It was after His Majesty’s address that the government initiated the review of various existing laws by forming the first ever Law Review Task Force through an executive order of the cabinet in 2015 to be headed by the Attorney General as the Chairman.
After the taskforce submitted its first report in 9th June 2015 the government asked the taskforce to do a more detailed and in-depth study. The task force was also elevated to the level of a National Law Review Taskforce (NLRT) with a judge from the High Court.
The taskforce had 33 sittings, mostly on holidays, and reviewed 126 existing Acts.
It recommended complete repeal of 15 Acts, 29 Acts for amendment and eight Acts for consolidation. The taskforce considering evolving laws and socio-economic conditions recommended the enactment of eight new Acts.
The NLRT report is divided into six parts with laws that are in conflict with the Constitution, conflicting or duplicating provisions of laws, laws in need of consolidation, laws in need of implementation and procedural changes, laws that are important to be enacted and other matters that may be considered for deliberations.
Laws that conflict with the Constitution
As the title suggests this section identifies particular laws that conflict with the Constitution and the changes needed to bring it in line.
The report says that the Constitution under various Articles gives full independence to Constitutional bodies like the Anti Corruption Commission, Election Commission of Bhutan, Royal Audit Authority and Royal Civil Service Commission.
However, it says the Civil Service Act unilaterally empowers the RCSC to be the central personnel agency in the recruitment, training, transfer, promotion and management of certain levels of staff, thereby contravening the Constitution.
It also says the Act has not been able to maintain the independence of RCSC as the Act requires the RCSC to be answerable to the cabinet.
The report points out that the Mines and Minerals Management Act 1995 is not in keeping with the Constitution that vests the ownership of mineral resources in the state. It says those provisions that gives mining rights to private companies must be amended.
The review points out that the Medicines Act 2003, Immigration Act 2007, RBP Act 2009 give prosecutorial powers to their agencies when the Constitution only authorizes the Attorney General to institute, initiate or withdraw any case in accordance with the law.
The suggestion is to amend the OAG Act so that these agencies need to seek permission or Power of Attorney from the OAG to undertake prosecution.
The Pesticides Act 2000 gives the power to search, seize and detain individuals but it does give the procedure or mention a court order which the review says can lead to the abuse of fundamental rights of citizens and are inconsistent with the Constitution.
Conflicting or duplicating provision of law
The report argues that section 153 of the Civil and Criminal Procedure Code (CCPC) of Bhutan that allows plaintiff to withdraw a suit may lead to cantankerous litigation and so it should be agreed to by the defendant along with higher legal compensation costs.
The review asks for the removal of section 205 of the CCPC which says that the prosecution may motion the courts for new trails based on newly discovered evidence or on other grounds. It says this may lead to double jeopardy prevented by section 206 that says a defendant acquitted or convicted of a specific offence may not be penalized the second time.
The report opposes section 165 of the CCPC which says a police officer may arrest without a warrant in a public place if people are reasonably believed to be obstructing the police in the execution of lawful duties. It says it is too broad and vague and could be abused and so asks for a list of cognizable and non-cognizable offences.
It recommends bail at any stage after the arrest of a suspect if the conditions of bail are fulfilled and argues against 199.8 of the CCPC which restricts bail to individuals accused of the felony of the first and second degree.
It also argues that the amount of bond in section 201 of the CCPC is too low and ask it be fixed based on the offence.
The report says that most courts dismiss cases without giving any judgment on the merit of the case if one of the litigants do not appear. It says section 152 of the CCPC needs to be amended to requiring courts to announce a judgment on merit.
The review says that in restitution for monetary and criminal cases the person should be imprisoned based on the minimum wage to ensure payment.
The review asks for child molestation to be better defined under section 203 and 204 of the penal code.
The report says that the definition of a police officer under CCPC should include forest officers, immigration officials, custom officials, and other law enforcement officials who need to exercise the power of police by virtue of the nature of their work. This is related to some courts questioning the authority of forest officers to arrest and detain even though the Forest and Nature Conservation Act (FNCA) gives them powers for those violating the Act.
It asks for repeal of various sections of the penal code with regard to wildlife already covered in better detail by the FNCA.
On declaring national parks and reserves, the review points out that the authority is vested not with the government: but with the Parliament.
It asks that the penal code of Bhutan define a habitual offender as one who has been convicted of a crime more than once reducing the scope of paying Thrim-thue for habitual offenders.
The report recommends that the age of consent be lowered to 16 years as the current 18 years age had lead to many imprisonments for statutory rape and is not in keeping with customary values of the community.
Laws in need of Consolidation
Here the report says that while the Bhutan Standards Bureau (BSB) be made the national authority to approve and declare different standards that are developed by concerned agencies like BICMA, National Food Quality Commission, RSTA etc.
It says that Section 35 and 36 of the Evidence Act 2005 to do with agreements is not in keeping with the Contract Act 2013 and so needs to be changed.
The report calls for the consolidation of the Environmental Assessment Act 2000, that asses environmental impact, under the broader National Environment Protection Act 2007.
The review calls for the entitlements of Constitutional post holders, MPs and local government to be brought under one Act as they are currently three different Acts. It says there must be a law on the entitlements of the Chairperson of NC, Speaker, Prime Minister and ministers.
It recommends harmonizing the Income Tax Act 2001, ACC Act 2011 and Penal Code on the issue of tax evasion and asks the Parliament to reconsider imprisonment clauses as the fines are already very heavy.
The report calls for the Medicine Act 2003 to harmonize its offences and penalties with the 2004 penal code.
The penalties for a dishonored cheque in the Negotiable Instrument Act is still as per the repealed Thrimzhung Chenmo. It recommends that appropriate sentencing be decided in the NIA Act itself.
Chapter 5 of the Loan Act 1981 is which addresses rental or lease transactions more relevant to the Tenancy Act 2015 needs to be repealed and also its last chapter more relevant to the Livestock Act of Bhutan 2001.
The review calls for the Bhutan Citizenship Act 1977, 1985 and Nationality Law of 1958 to be consolidated into one Act as they deal with the same subject of acquiring citizenship.
Laws in need of implementation
The report calls for a clearer definition of entrapment in section 412 by a law enforcement officer or others who to obtain evidence induces or encourages another to commit a crime.
It says that the entitlement of local government officials should only be from the day of assuming office.
The review also seeks bring in a clause in the CCPC where a litigant may motion for the recusal of a Drangpon if the litigant has knowledge of conflict of interest, pecuniary interest, relations and if the litigant is of view that the Drangpon is biased. Currently, only Drangpons can recuse themselves.
The report notes the lack of stenography or recordings in Bhutanese courts and says it is needed for oral submissions, especially while cross examining witnesses and also exposing differences in written and oral submissions.
It says that under current laws issues like fronting and illegal immigrants need to be addressed with jail time sentencing instead of just fines. It also asks for better definition of computer pornography and the recording of obscene video without consent.
The review says that both the houses of Parliament should have a Committee on delegated legislations to review and see if the rules are in keeping with the acts passed by the Parliament.
Laws that are important to be enacted
The review recommends new laws like a Law of Limitation that requires civil suits to be filed within a specific time or be nullified to prevent vindictive litigation years down the line when evidences are not there.
It calls for an Interpretation Act to having general principles and rules interpret acts and laws.
The report points to the Bankruptcy Act being too cumbersome and burdensome on the courts and calls for an easier Insolvency Act for businesses to wind up.
It calls for an Administrative Tribunal Act particularly to deal with the grievances of civil servants and corporate employees as mandated in the Constitution.
The review calls for the Right to Information Act to be enacted in line with the Constitution as its basic purpose is to provide the public with greater access to information held by government agencies. It says the absence of RTI means even sensitive information can be obtained and there is no procedure for providing information
The review calls for a clear Impeachment Act and an Official Secrets Act.
Other matters
The review put forth other matters like preventing candidates from changing parties after the primary round, making senior civil servants resign a year before joining political parties and ensuring that a civil service pay hike cannot be part of the campaign pledges.
It also calls for a well defined Pay Commission Act.
