First-degree felony and above will not be granted bail

Tashi Dema

Members of Parliament (MP) adopted the Civil and Criminal Procedure Code (Amendment) Bill of Bhutan 2019 at a joint sitting yesterday.

Of the 71 members of both Houses present, 65 voted for the adoption of the Bill and six abstained.

Of the seven disputed clauses in the Bill, members endorsed joint committee’s recommendations on six clauses and retained section 205 of the CCPC, which is on motion for new trials.

Granting bail to a person alleged of crimes graded as first-degree felony or above dominated the discussion.

Section 199.8A of the amended CCPC 2011 states the court shall not grant bail to a person who has been charged with (a) an offence against the security and sovereignty of the country and (b) an offence of or above felony of the second degree.

Rape of a child above 12 years, voluntary manslaughter, corruption offences valued more than 35 years national wage rate are graded as second-degree felony.

While the National Council recommended removal of the 199.8A (b), the joint committee for CCPC recommended that court should not grant bail to an offence of or above first-degree.

Murder, statutory rape, treason, terrorism and offences against Ku, Sung, Thukten or Zung are some of the crimes graded as first-degree felony.

Gasa’s NC member Dorji Khandu said denying a bail right to people accused of committing crimes graded as first-degree felony is against the Constitution’s section 16 of Article 7, which states, “A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.”

He also said committee’s recommendation states offence of or above first degree and there is no crime above first degree.

Dorji Khandu also said courts could grant bail if conditions are met.”

He said the clause should be removed, as it could limit the discretions of court and there would be a problem in implementing the law.

Bongo-Chapcha MP Tshewang Lhamo,  the chairperson of the legislative committee, said removing the clause could be interpreted wrongly, as people charged of murder, rape and offences against Ku-Sung-Thukten would not get bail. “Removing the clause would be interpreted that people alleged of other offences could avail bail.”

NC’s eminent member Ugyen Tshering said the judiciary initially interpreted and implemented bail and non-bailable offences as per compoundable and non-compoundable offences. “Offences categorised as felony were not given bail initially.”

He said that in a case in Gelephu in 2009, a litigant contended that bail is a fundamental right and not granting bail is contradicting section 1 and 16 of Article 7 of the Constitution. “In 2012, the section was amended and it stated that courts will not grant bail to offences graded as second-degree felony and above.”

Ugyen Tshering said that many legal experts have opined that the section is unconstitutional. “Section 199.8A (b) should be removed, as courts grant bail after fulfilling conditions like severity of crime, whether the accused will abscond or not and security of the public.”

Bartsham-Shongphu’s MP Passang Dorji said that a Supreme Court order issued on July 24 last year ruled the two sections null and void, justifying it is against the Constitution and that bail is a fundamental right.

He said it is not fair to deny bail to person anticipated to be charged of an offence. “A person should avail bail until a prima facia is established.”

Prime Minister Dr Lotay Tshering explained the discussion should specify on non-bailable offences and not on whether bail is a fundamental right. “If we specify that although bail is a fundamental right, it should be as per legal procedures, it will not be against the Constitution.”

Drametse-Ngatsang MP Ugyen Wangdi, however, said it is important to understand the benefit of granting bail to an accused based on fundamental right. “Section 22 of Article 7 of the Constitution limits a person’s fundamental rights and the two sections of non-bailable offences should be adopted.”

He cited numerous reasons why bail should not be granted for people accused of serious crimes. “People beg until they avail bail and once they avail bail, they abscond.”

Ugyen Wangdi also said MPs are always accused of framing draconian laws and it is important to voice their (people’s) concerns.

Meanwhile, the House decided to retain section 205 of the Code, as many members said it would help people, who could submit evidence after judgements are rendered avail justice.

MP Tshewang Lhamo asked the members to remember that prosecutor is the Office of Attorney General and understand the definition of prosecution.

She asked the members not to misuse ‘humble’ citizens and be cautious of double jeopardy.  “We don’t frame law for humble or rich people. We frame law for Bhutanese citizens.”

Speaker Wangchuk Namgyel, however, reminded the joint committee chairperson to be open while discussing it in the committee. “We don’t have to stick to what the joint committee recommended.”

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