This pandemic has defied the fundamental principles of the rule of law, democratic principles of the separation of power guaranteed under Article 1 of our Constitution.  The Executive is vested with enormous authority including legislative prerogatives. Almost every civic rights and liberties in the country are suspended by mere press releases setting an unprecedented authority of the Executive in a democracy. With such restrictions and prohibitions, public also suffer from lockdown fatigue including anger, tiredness and feeling groggy because many lost their jobs, livelihoods, and some in constant worry of next meal. Thus, the state must exercise due caution particularly in imposing harsh punitive sanctions.

Yesterday, Kuensel quoted the Attorney General that those who breach the lockdown protocols will be charged with Criminal Nuisance, Section 410 and Breach of Public Order and Tranquillity Section 448 of the Penal Code of Bhutan (PCB). According to media reports, however,  not all defaulters are treated same thus far.

For example, Kuensel on December 9 reported that police arrested 19 business operators for violating government directives the “police charged” under Section 448.   However, another report revealed that police arrested a 36-year-old antique items dealer who sneaked into Phuentsholing from across the border without Covid-19 protocols was charged under both Section 410 and 448.

Kuensel also reported “Umling drungkhag court sentenced four men to more than ten years, one man and two women for more than six years” under Section 410 besides other laws as they were also charged other offences.  In most recent news, on  January 5, Kuensel reported that “13 people who breached the zone protocol, eight were sent on surety agreement and five, who are repeated offenders were detained and would be charged under Section 448.”

These are clear signs of inconsistencies and unequal treatment of defaulters. Those who are charged under Section 410, faces a minimum of one year to a maximum of less than five years imprisonment and those charged under Section 448 faces a minimum of one month to a maximum of less than one year and are eligible for Thrimthue.

Further, there are no laws that authorise police to grant bail once arrested. The authority to grant bail solely rest with the judiciary under the existing laws. Such inconsistencies give discretion to law enforcement agencies including the Office of the Attorney General and are vulnerable to corruption, abuse, unfair treatment, and possibly contravene the right to equality before the law and effective protection of the law guaranteed by our Constitution.

We must support the government in this difficult time because as AG said: “the situation is becoming quite severe, and we can’t take the risk because the protocol breach would endanger lives of people.” But equally important is that state actions must be fair and equal and within the boundaries of the rule of law.

His Majesty once said, “democracy can only flourish if all Bhutanese uphold the rule of law” and the “failure of justice persecutes an individual, but the lack of adherence to rule of law persecutes an entire nation.” The judiciary as the fountain of justice, guardian of the Constitution and media as the fourth estate must not remain spectator or collaborator but must act as effective checks and balances particularly in unprecedented times like this. At this hour people should not live in fear of punitive sanctions but need reassurance to overcome the challenges.

Sonam Tshering

Lawyer, Thimphu

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