Yangchen C Rinzin 

The application of Penal provision Section 410 and 448 for those who breach the lockdown protocol has the various sections of the legal fraternity in loggerheads.

Lawyers and some prosecutors debate the penal provisions that are applied to those who breach lockdown. Those crossing the international border are also charged under the same provisions.

They are charged for Criminal Nuisance under Section 410 and 448 of the Penal Code of Bhutan.

Section 410 states a person is guilty of a criminal nuisance if he knowingly or recklessly creates or maintains a condition including spreading a dangerous disease that injures or endangers the safety or health of the public.

The offence is a fourth degree felony, which is liable for a prison term between three and five years.

Section 448 states that if the defendant purposely fails to abide by the government’s orders issued in the interest of public safety, public order and tranquillity, it will be graded as a petty misdemeanour liable for three months to a year prison term.

A lawyer said that Section 410 is self-explanatory where it says if the defendant injures or endangers the safety or health of the public by spreading a dangerous disease would be guilty of the offence. However, none of those that the Office of The Attorney General (OAG) charged with the provision had the disease.

“People will have to have the disease first if they don’t then how does one prove the person had the intent to spread the disease?” a lawyer said.

“If a person tested negative, which in this case, is Covid-19, public health and safety aren’t endangered.”

Attorney General Lungten Dubgyur recently said that the OAG had prosecuted 139 Covid-19 related cases since March last year involving 239 defendants.

Of that 75 people were convicted and imprisoned for a maximum of 15 years and 57 cases are still pending with courts due to second nationwide lockdown.

Another lawyer based in Thimphu said that some are convicted against one section and others both sections which are unjust because in almost all cases the incidents are similar, which is breaching of government’s order.

“Then how does one prove that the person had violated only one section?” the lawyer said. “It’s in the hands of police how they charge. If they want they could apply both Sections equally.”

Many said the state should prove that a person breached the protocol and spread the disease, otherwise, it would be unfair to assume the person would have spread if “he/she had tested positive.”

“Section 410 is appropriate in the recent case where a positive Covid-19 patient had breached protocol by visiting people during the lockdown,” a lawyer said. “But not on a father who had just asked his neighbour residing near the border for water to feed his thirsty son and has landed up in prison for five years.”

In an earlier interview with Kuensel, some of the prosecutors shared that any violation of national safety protocol must be considered criminal given the kind of emergency that the nation is facing today.

While some lawyers agreed that people could be charged against 448 for failing to abide by the government’s order, other lawyers argued that the reference to ‘order’ in the Section could apply to any government order not just during the current situation.

“But how far government followed Article 33 of the Constitution to declare an emergency and come up with such order in the current situation?”

Another lawyer said that law could not be applied based on the public sentiment and that it has to be on the gravity of the crime irrespective of circumstances.

Many have also questioned the accountability of lapses in the protocols that led to two lockdowns while locking up people for breaching the public’s order where the people were not the source for disease spread.

Meanwhile, the Attorney General did not want to comment.