The Bhutanese Leading the way.
The Interim Report on the Amendment of the Penal Code of Bhutan 2004 presented by Legislative Committee identifies several issues with the Bhutan Penal Code.
Dzongkha-English Harmonization
The Penal Code of Bhutan (PCB) was enacted in both Dzongkha and English, While this bilingual approach is intended to uphold inclusivity and national identity, recent consultations with judicial stakeholders have revealed significant discrepancies between the Dzongkha and English versions of the Penal Code. These differences have led to inconsistent interpretations and, in some cases, inequitable application of the law, raising concerns about access to justice and the rule of law. Therefore, the majority of stakeholders during the consultations recommended the harmonization of the Dzongkha and English versions of the Penal Code to ensure that consistency is maintained in the interpretation of the provisions.
Classification and sentencing of Ku, Sung, Thuk-ten, or Zun
Under Section 7(b), it was observed that offences against Ku, Sung, Thuk-ten, or Zung has been classified based on their significance and importance. The grading of such offences should reflect this classification. However, many individuals are being sentenced to life imprisonment regardless of whether the offence was committed against an old or new chorten, whether it was structured or unstructured, or whether the Zung or Thuk-ten involved was of high or low value. This has resulted in injustice and confusion in determining the severity of the crime. Furthermore, under Section 7(b), the sentence for such offences has been graded as life imprisonment, while under Section 352, it is categorized as a first-degree felony. It is therefore imperative to harmonize these provisions to ensure consistency and clarity in sentencing.
Enhancement
Section 15 of the Penal Code of Bhutan provides for the enhancement of criminal sentences under certain circumstances, particularly in cases involving repeat offenders. This provision serves a critical function within the criminal justice system by ensuring that individuals who repeatedly commit offences receive appropriately heightened penalties. However, the application of Section 15 in its current form has raised several legal interpretations and procedural applications, particularly concerning its clarity, proportionality, and consistency across jurisdictions. This has created disparities in sentencing outcomes, raising concerns about fairness and equality before the law due to the inconsistency of legal interpretation between the English and Dzongkha versions, which is undermining the uniform application of the law and compromising legal certainty. Therefore, there is a need to review and harmonize the English and Dzongkha versions of Section 15.
Thrimthue
The Committee observed that while the term “recidivist” generally refers to a person convicted of the same or similar criminal offenses more than once, and a “habitual offender” refers to someone convicted more than twice, the precise meaning of “more than once” and “more than twice” remain unclear. This has led to differing interpretations of Section 28 across the judiciary thereby resulting in inconsistent and potentially unfair sentencing.
Compensatory Damages, Value-based Sentencing, Fine and Thrimthue
The Penal Code of Bhutan outlines provisions for compensatory damages, value-based sentencing, and fines, all of which are currently calculated based on the national minimum wage rate (NMWR), which is Nu.125 per day. Courts across the country consider this rate to determine the amount for compensatory damages, fines, or other monetary compensation. However, the current method of using the NMWR to determine fines and penalties has led to calls for reform.
Compoundable and Non-Compoundable Offences
The Committee observed the need and importance of a nuanced understanding of compoundable and non-compoundable offences. This provision allows for certain offences, excluding those committed by recidivists, and accustomed or habitual offenders, or those otherwise prohibited, to be compounded, meaning they can be resolved through victimoffender reconciliation, often involving compensation or restitution. It was observed that in practice, even offences that do not pose a significant threat to the community or nation are frequently prosecuted. There are strong concerns about the long-term consequences of such prosecution, especially for young offenders, whose criminal records can hinder future opportunities and tarnish reputations, despite the relatively minor nature of their infractions.
Battery
Battery offences were another topic of concern, with suggestions that aggravating circumstances in Section 24 should be clearly defined, which requires reassessment given the complexities of grievous hurt. It is important to establish clear criteria for what constitutes aggravating factors to ensure the consistent application of the law. Additionally, there is a need to differentiate between minor injuries and more severe forms of harm to prevent potential misuse or overcharging. There are suggestions that the battery should be segregated into separate offences.
Sexual offences
The discussion emphasized concerns about the inconsistent age-based classifications in statutory rape laws, highlighting the need to standardize the age of consent. However, concerns have been raised regarding the current sentencing provisions, particularly the fact that sentencing for rape intentionally using a force and for consensual sexual activity are treated equally. This legal approach fails to differentiate between acts of violence and consensual activity, resulting in disproportionately less sentence for offenders who commit violent rape. The Committee also observed inconsistencies and disparities within the current legal framework governing sexual offences. For instance, while the general offence of rape has been elevated to a third-degree felony, marital rape continues to be categorized merely as a petty misdemeanor. Similarly, although gang rape is classified as a second-degree felony, gang rape of a married person remains a third-degree felony. These discrepancies underscore a need to re-evaluate the legal grading of such offences to ensure consistency and fairness. It is pertinent that all forms of rape, including those within marital contexts and involving multiple perpetrators, should be treated with equal severity under the law. This would ensure a more just and coherent legal framework that reflects the gravity of all forms of sexual violence.
Illegal Abortion
To solve the problems related to the interpretation of Section 146 and in consonance to the International Instruments ratified by Parliament, it is observed that there is a need to insert new exception on abortion for cases where the fetus is diagnosed as “incompatible with life.” This condition, often referred to as a lethal fetal anomaly, implies that the fetus would not survive outside the womb or would only live for a brief and painful period post-birth. Stakeholders argue that forcing individuals to carry such pregnancies to term imposes profound emotional, psychological, and financial burdens on the mother and her family. By allowing abortion in these cases, the law would reflect compassion and respect for the mental and physical health of the individuals affected.
Evolving Issues
In light of rapid technological advancement and societal transformation, there is growing concern that the PCB does not sufficiently address emerging forms of crime, such as digital technology and cybersecurity threats. Stakeholders from various sectors have recommended urgent reforms to incorporate these evolving issues into the legal framework, and the absence of specific sections dealing with online scams, digital currency fraud, mule accounts, and other technology-enabled crimes weakens the capacity of the criminal justice system to deter and prosecute offenders effectively. In summary the Committee has identified about 62 Sections for amendment, 8 Sections for repeal and 15 Sections for insertion. In addition, the Committee found that 13 Sections of the Penal Code were found to contain ambiguities between the Dzongkha and English texts. The language needs to be harmonized to address these inconsistencies and ensure that legal meanings are accurately and consistently interpreted, without altering the substantive content of the provisions. It is important to note that these amendments to the PCB are part of an ongoing review process and are not final and binding. The current amendments, repeals, insertions, and DzongkhaEnglish harmonizations reflect the Committee’s interim findings and are being shared with the members for transparency. These proposed changes and the remaining sections may continue to evolve as the Committee engages in further review, research, and consultation with relevant stakeholders.
Way Forward
The findings and amendments will aim to strengthen the overall legal framework and promote a fair, transparent, and efficient criminal justice system by redressing the legal issues and anomalies that have hindered the effective enforcement and administration of justice under the Penal Code of Bhutan. The Committee has conducted a thorough review and analysis of the Penal Code of Bhutan 2004 and the prevailing criminal justice regime, exploring ways in which Bhutan can establish a more robust and responsive legal environment.
Recognizing the importance of a well-functioning penal system in maintaining law and order, the Committee seeks to foster public confidence and ensure that the PCB effectively addresses challenges and emerging issues which can revitalized that the legislation will be viewed as a trusted and integral instrument for upholding justice, protecting rights, and promoting the rule of law in Bhutan. The Committee will continue its research and study of the Penal Code of Bhutan 2004, engaging in wide consultations with legal experts, law enforcement agencies, the judiciary, local government, and relevant stakeholders. The findings and amendments will be presented during the plenary session, and suggestions and opinions will be incorporated if deemed necessary.
Earlier, during the retreat held in Paro to identify and allocate the responsibilities of the National Council for its five-year term, the Legislative Committee was entrusted with the legislative responsibility of reviewing and proposing amendments to the Penal Code of Bhutan. In line with the directive of the House, the Committee undertook a comprehensive review of the Penal Code with the objective of proposing necessary amendments to ensure its relevance, clarity, and alignment with current legal and societal needs. The Committee was also inspired by the “Diamond Strategy” unveiled by His Majesty the King during the National Day celebrations.
