Yesterday, Kuensel reported that the government has found  “A solution to end the illegal tobacco trade” and the editorial supported the government’s move stating that though it violates the existing tobacco control law, it is the most practical as well as hinting most do not pay the taxes as required by the law.

Both the editorial and the Prime Minister’s (PM) statement makes complete sense from the perspective of social menace and risk posed by this illegal cross-border smuggling of tobacco in the possible spread of Covid-19. Such a bold editorial and government’s decision to come up with such interim measures raises questions on whether the legislature remained ignorant of the loopholes in the law or if Bhutan Narcotic Control Authority (BNCA) as custodian of the law failed its responsibility in  effective implementation of the law.

The World Health Organization in May stated that “the tobacco epidemic is one of the biggest public health threats killing more than 8 million people a year around the world” mostly from middle or low income countries. Our parliament enacted this law because of enormous ill effects on health and not to punish people but failed to achieve its objectives.

The PM’s justification that “Bhutan has not banned the import of tobacco products in the country,” seems correct as importation for personal consumption is legal.  Section 11 of the Tobacco Control Act 2010 (Amended 2014) banned the sale of  tobacco or tobacco products within the country.

However, if the government decides to sell, the caveat is that under section 50 of the Act, a buyer can face hefty fines as well imprisonment unless the government decides to set aside the existing law completely by taking shelter under Covid-19.  Section 22 and 23 of the Act mandates BNCA to “promote and implement a cessation of tobacco use and adequate treatment for tobacco dependence” in health care facilities. These provisions are intended to reduce tobacco use and dependence in the country. The PM was correct in saying, “this is a wrong time to rehabilitate a person or change their habits.” But it has been more than a decade since the implementation of this law started. What have the implementing agencies been doing in this area?

Unlike any other law, this law went for two amendments within five years after the enactment. Yet the parliament has only increased the quantity defeating the primary objective of the law (reduce use) and BNCA only enforced the punitive measures but not the cessation measure as mandated by the law.

While considering the importance of securing our borders from Covid-19, the government may be excused from taking such drastic measures to the extent of defying the parliamentary act as there are no better alternatives. However, governments must not take this as a precedent and continue such steps in other areas.

Government must realise that the present situation is an unprecedented step by the state in a democracy and must not be considered ordinary. In the name of national emergency, the government should not become too powerful, undermining the fundamental principles of democracy. In such difficult times, the rule of law must remain above everything. The Constitution does not provide such extraordinary authority to the government and in ordinary circumstances is against the rule of law and tenets of democratic culture.

Disclaimer: The views expressed in this article are author’s own.

Sonam Tshering

Lawyer, Thimphu