Kuensel reported on the Gelephu quarantine breach case that the prosecution appealed on the ground that the “convict was not given the highest penalty” as per the Supreme Court’s notification to impose the highest penalty for breach of Covid-19 protocol.” 

The Supreme Court issued an order on 27 April 2020 to lower courts instructing the judges to apply sections 187.3 (to meet the ends of justice, courts may alter or add to any charge before the judgment is pronounced) and 188 (right to a speedy trial) of CCPC and to impose the highest penalty as a “deterrence” to the accused.  Such instructions from the Supreme Court and prosecutor using such orders as grounds for appeal are not only against the rule of law but also set a wrong perception and impression among the general public.  It defeats the fundamental principles of criminal justice and infringes the independence of the respective court in the administration of justice without fear and favour.

The judiciary is not just independent of the executive and legislature, but also each court is independent of each other in its decision making when it comes to court proceedings, so that the judges can make decisions without fear and favour and based on the facts, evidence, and laws, under the doctrine of non-interference.  Such a principle is a universal norm in the judiciary across the world.  In Bhutan, section 5 of the Civil and Criminal Procedure Code (CCPC), 2001, states “the courts shall decide matters before it impartially based on facts and in accordance with the rule of law.”

Article 7 of the Constitution and Section 3 of CCPC guarantees every person equality before the law and the right to life and liberty, which can be deprived only through due process of law established by the parliament.  Since the breach of quarantine is prosecuted under Penal Code, the court is required to sentence an accused only as per the PCB (Section 6), which includes consideration of “mitigating and aggravating factors (S.17)” and fulfil the general requirements of culpability.  This means the prosecution must prove that the accused “acted purposely, knowingly, recklessly, or negligently” besides other elements required by law (S.53).

Section 96.2 of the CCPC sets that, in case of a criminal prosecution, the prosecutor proves the accusations to the “full satisfaction of the Court has established a proof beyond a reasonable doubt.”  And Section 96.3 requires that judgment be reasoned besides other requirements.  This is because Article 7 Section 16 guarantees “a person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.”

Further, the principles of guilty mind (mens rea) and criminal act (actus rea), which includes motive, preparation, committing the crime and remorse thereafter must be considered before sentencing the convict.  The objective of the courts is not to punish the person but to ensure a fair trial and the administration of justice.  The current order instructing to award the highest penalty is a serious infringement on the independent judges and may make the judges uncomfortable in decision making.  Therefore, the prosecutors must stop using such notifications, and the Supreme Court must issue a new order cancelling the existing order to protect the independence of courts and allow the judges to take judicial decision purely based on the rule of law and follow due process of law.

Sonam Tshering

Lawyer, Thimphu

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