Judiciary must protect the fundamentals of criminal justice

Imprisonment has never been and will never be the best solution to solve problems. Yet if lockdown is any indication, our system seems to consider imprisonment as the best option in solving problems. More than 40 people were charged in the court this week alone and many more are likely to face a similar fate. It is reported that all of them are charged for breach of Public Order and tranquillity under Section 448 of the Penal Code of Bhutan.

Contrary to the above theory, Article 7 (1) our constitution prohibits the state from depriving any person’s right to “life, liberty and security” except in accordance with the due process of law. The due process of law means processes owed to the accused and thus “protects the person against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged”. It prohibits the state from the possible arbitrary use of authorities and “using evidentiary presumptions.” The Constitution further imposes a duty on the state the burden to prove beyond a reasonable doubt of every essential element of a crime.” Section 96.2 of Civil and Criminal Procedure Code (CCPC), 2001 spells out this duty of burden of proof crystal clear.

Similarly, Article 7(16), gives every person “charged with a penal offence” with a right to presume innocent until proven guilty.” This right is an “axiomatic and its enforcement lies at the foundation of the administration” of our criminal law. It imposes a duty on the judges to safeguard “both the rights of the accused and the interests of the public in the administration of criminal justice.

In the current cases, to convict a person under Section 448, the prosecution must prove that the defendant purposely fails to abide by the order beyond a reasonable doubt. Our PCB is based on the American Model Penal Code. The Model Code as well as many American courts have consistently defined “purposefully” means “intentionally or designedly or consciously.”  In this case, the “existence of intention (mens rea)” must be “the rule, rather than the exception.” This means the prosecution must not only prove that the person breached the protocol by his action (actus rea) but also prove that the person had the intention of defying the order to spread the disease as the sole objective of lockdown protocol was nothing more than prevention of infection. 

However, going by reports, most of the persons arrested were either playing archery or gambling or entering another zone. Further, if they were tested negative for Covid-19, meaning they do not pose any threat to the safety or health of the others, how does it even become a crime? In case, if they are convicted only because they played sports or entered another zone, it poses a serious threat to the fundamentals of our criminal justice system. It undermines the principles of due process and the right to presume innocent until proven guilty.

The accused is already considered guilty and the trial is just a formality. Media reports in the past said that the Office of the Attorney General will complete prosecution within a week, seems to support such a theory because other cases take months or even years. Further, the burden of proof now shifts to the accused sabotaging the fundamental rights of the accused guaranteed by our constitution.  

Sonam Tshering

Lawyer, Thimphu

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

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