Younten Tshedup 

The government has not breached the Tobacco Control Act or any provisions of the Constitution given the current situation, according to the Attorney General (AG).

The decision to allow the opening of tobacco sale outlets in the country was made in consultation with the Office of the Attorney General (OAG), the legal arm of the government.

Kuensel learnt that the government on July 8 had sought legal opinion of the OAG on the proposal to identify Bhutan Duty Free Limited (BDFL) as the sole importer and facilitator in distributing tobacco products in the country.

The rationale of the proposal was to curb the illegal import and smuggling of tobacco products in the wake of the pandemic.

On July 14, OAG submitted the legal opinion to the Cabinet Secretary citing various provisions of the laws concerning the opening of tobacco outlets.

Following the submission, the government, as an interim measure and in response to the pandemic, began facilitating the safe import of tobacco products through BDFL and making them available to the public through their outlets since August 1.

Reaffirming the decision, newly appointed Attorney General, Lungten Dubgyur said that with the closure of all entry points (land and air) into the country in the wake of the pandemic, it deprived some individuals (users) to import tobacco products.   

He said that although section 11 (b) and (c) and section 34 of the Tobacco Control Act 2010, restricted the sale and buy of tobacco products, section 12 of the Act permitted an individual to import tobacco for personal consumption as per the legally determined quantities and upon paying duties and taxes.

However, the provision of the Act became nonoperational given the lockdown and closure of entry points – which were the initial outlets (port of entry and embarkation) for declaring tobacco products bought for personal consumption.

The Attorney General said that unlike during the normal times, the right to import tobacco products as per the provision of the Act invariably became defunct during the exigency of the situation of Covid-19.

Therefore, he said that any executive order or action or circular issued by the government to address Covid-19 and efforts to prevent the entry of the virus in the country surmounts and doesn’t tantamount to issuing circular and should not be argued that it contravenes Article 20,  section 8 of the Constitution.

Lungten Dubgyur said that Article 20 (8) of the Constitution shall apply enforced only in the normal circumstances where any executive order or circular contravening or overriding the law or Constitution can not be issued. “However, Covid-19 is already declared pandemic, and hence executive order to address exigencies situation cannot be construed as violation of law or the Constitution of which the actions of executive is justified per interim.

He added that the recent prosecutions and convictions against several tobacco smugglers along the borders stands as a testimony of the risk and vulnerability of local transmission the country could face with the increasing smuggling activities.

This is why, he said, in order to facilitate and address the emergent circumstances and remain within the purview of the law, the government was advised to facilitate such measures that allowed the import and distribution of tobacco products, without deriving any commercial gain and profit as per section 60 (M) of the Tobacco Control Act of Bhutan 2010.

The Attorney General said that had the government during a normal situation made a similar decision, it would have violated the Constitution and the Act. However, given the current exigent situation due to the pandemic, he said that interim decision was justifiable to uphold the rights of the individuals (personal consumption).


Emergency setting 

The government received several criticisms following the opening of tobacco sale outlets in the country. One major criticism was for not following the due process of law.

People’s Democratic Party (PDP) in a press release accused the government of giving into the popular demand and not for convening an emergency setting of the Parliament to amend the Act.

Lungten Dubgyur said that during a pandemic, several rules such as closure of businesses by 9pm (7pm initially) and restricting the movement of people after certain hours were enforced.

All of these enforcements that impact the fundamental rights and lawful practice of trade and business came through government executive orders, he said. “There were no emergency sessions called to decide this. But as an exigent situation in response to the pandemic, it has to be followed by executive order.”

He added that in any sound democracy, countries across the world have imposed  several lockdowns through similar executive orders undermining the fundamental rights of citizens all in an effort to curtail the spread of the disease.

“So laws are, in a way, engulfed by executive orders in some way in the current situation as immediate responses become the need of the hour,” he said. “When it’s a public exigent situation, then the law becomes secondary and the government has to respond. We have to look for what is the best interest of the country and public but at the same time not undermine the law.”

Meanwhile, OAG has also asked the Bhutan Narcotics Control Authority as the sole regulating authority to continue exercising the restrictions including monitoring aspects as applicable in normal circumstances.

The OAG also mentioned in its submission to the Cabinet Secretary that the executive action and the facilitation of import of tobacco should be completely an interim measure and once this pandemic is passed, the earlier status quo of the Act must be maintained, which is after the country resumes its normal trade and commerce with the outside world.