After days of intense debate, the National Assembly yesterday passed the Penal Code of Bhutan (amendment) Bill 2019 with 16 amendments.
The Bill received 38 ‘Yes’ votes, five abstained, and one voted against it.
One of the major amendments to the Bill is removing discriminatory sections on unnatural sex in the Penal Code.
The house repealed sections 213 and 214 in the Code. Section 213 states that a person is guilty of the offence of unnatural sex if the individual engages in sodomy or any other sexual conduct that is against the order of nature. The offence is a petty misdemeanour.
However, the House could not pass two major recommendations of its legislative committee on reducing the age of consent for consensual sex, and fronting.
Members submitted diverse arguments against the committee’s recommendation to amend section 183 to reduce the age of consent to 16. The National Law Review Taskforce (NLRT) had recommended reducing it to 16 and the committee worked on the recommendation three times.
The NLRT reasoned that the section penalises the defendant when he/she is above 18 years of age, despite the sexual act being consensual.
“The consent of the victim is irrelevant and the defendant is held strictly liable,” it states. “Imposing strict liability for such a nature of criminalised offence is evidently incongruous to the general principles of fairness in law.”
Instead some members argued that the Penal Code of 2004 should be reinstated to make it a second-degree offence for sexual act with children between 12 and 18 years. The 2011 amendment had allowed consensual sex between teenagers between 16 and 18 years.
The second recommendation on section 184, related to the age of consent, to reduce the penalty for those between 16 and 18 years was also not passed. The house decided to defer it and take time to consider it as numerous members opposed the recommendation.
Assembly also passed a new section on child molestation. Earlier the Penal Code did not specify what acts would be considered as molestation. The offence is passed as a fourth degree felony along with compensatory damages as determined by the court.
Members said there is a need to distinguish fronting within the country and that involving foreigners. The proposed section could lead to penalising micro-businesses. In the end, the house did not pass the recommendation reasoning that it should be studied properly.
The NLRT recommended that a new section on fronting be inserted in the Penal Code. Assembly’s legislative committee accepted the NLRT’s recommendation and also improved upon it after the second and third reading of the bill.
Drametse_Ngatshang MP Ugyen Wangdi said that it was not appropriate to disregard the recommendations of the NLRT after it has carried out a thorough review and proposed changes.
“The next time we constitute such a committee the members may not take the task as seriously,” he said.
Other amendments include section 412, deleting sections 492 and 493 on illegal hunting and fishing.
Speaker Wangchuk Namgyel said that as the recommendations are not passed, the sections in the penal code 2011 remain valid.
Panbang MP Dorji Wangdi said that when three of the amendments are deferred the Bill is not passed. “We’ve never passed a bill if that is the case,” he said.
The Speaker, however, said that with 16 recommendations passed and only three deferred, it should be considered passed. He did not clarify after the lunch break on the issue.
The bill will now be sent to National Council for deliberations. If there are any differences or additional recommendations, the bill will go for a joint sitting. If not, the Bill will be submitted to His Majesty for Royal assent.