While duty-free outlets and their agents continue to do tobacco business legally, there are reports of penalising people for the illegal sale of tobacco in the country in recent times.  Such arrests confuse the public and questions the rule of law.

In the ordinary sense, Section 11 of the Tobacco Control Act (Amendment 2014) prohibits any person to cultivate or harvest, manufacture, sell, buy, supply, or distribute tobacco and prohibits the transportation of tobacco beyond permissible quantity.  Further, Section 12 authorises the importation of tobacco only for “personal consumption.”  Section 11(c) makes it an offence even to buy tobacco and violation of these provisions can amount to serious criminal charges, including arrest, detention and imprisonment.

However, the government, citing exigencies due to the COVID-19, justified allowing duty-free outlets in the country to import, sell, distribute, transport tobacco products as well as appoint local government (LGs) and other shops in the country to do business on behalf of duty-free against the provisions of the TCA.  While such a move was strongly criticised and questioned on the ground of constitutionality and legislative prerogative, the government defended the action, stating that such an executive order was to address exigencies situation and “the actions of the executive is justified per interim.”  This means the Tobacco Control Act (TCA) has been suspended and its provisions remain in abeyance till the government issues another executive order superseding the earlier order.

Thus, neither the constitution nor the Tobacco Control Act reserves any special discretionary authority or exception to the government and the law is only suspended for the time being.  If the law is suspended, as argued and defended, the law enforcement agencies must apply the law to everyone equally, irrespective of whether government or an ordinary citizen.  Article 7 (1) and (2) of our Constitution guarantees the person’s right to “life, liberty and security of person” against unwarranted actions of the public authorities and arbitrary arrest or detention.  In short, Article 7(1) and (20) are designed to “protect human life against unwarranted actions by the public authorities as well as private persons” ensure due process established by law and ensure fair procedure for everyone.

Civil and Criminal Procedure (CCPC) 2001 further cements these constitutional protections.  Section 158 of CCPC states that “no person shall be subjected to arrest or detention, except in accordance with this Code.”  Section 161 imposes the duty on the police to apprehend if there is sufficient ground of apprehension to crime, and Section 162 mandates the police to prepare a crime report, and under Section 163, courts can issue arrest warrant only if police request for a criminal offence.

In the current situation, if the law enforcement authorities justify the arrest or impose fines under the TCA and if courts start accepting any cases on this, it is contrary to the arguments and defences made by the government.  This means that the current system of duty-free importing and doing business of tobacco and other agents as well as the consumers (buyers) is a criminal offence, and the same actions must be taken against them.  Otherwise, the recent news imposing fines or other actions of the public authorities may not only contravene the existing laws but also become unconstitutional.  The rule of law is the foundation of democracy, the law must be applied equally to everyone.  

Sonam Tshering

Lawyer, Thimphu

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