Choki Wangmo

The legislative committee of the National Council (NC) yesterday proposed to retain the two provisions on unnatural sex in the Penal Code of Bhutan 2004.

The National Assembly members repealed the two sections of the Penal Code, 213 and 214, in the last session of the Parliament in July. Finance minister Namgay Tshering recommended during the second reading of the Penal Code Amendment Bill 2019 for the repeal, reasoning the clauses criminalised the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

While section 213 states that a person is guilty of the offence of unnatural sex if an individual engages in sodomy or any other sexual conduct that is against the order of nature, section 214 grades the offence as a petty misdemeanour.

Lhuentse’s NC member, Tempa Dorji, who is also the legislative committee member, said they recognised LGBTIQ rights as human rights but Bhutan should not make rushed decisions to keep pace with the international movements.   

Chukha NC member Sangay Dorji questioned if Bhutan would be able to align with global trends given that the country’s economic and human resource is limited.

He said the removal of the sections indicated that LGBTIQ members in the country were punished for their nature, which is untrue. “It is misinformation. No one has ever been punished for being an LGBTIQ. Bhutanese are open, supportive and accepting.”

Some of the members in the House said that the there should be clarity in defining the term ‘unnatural sex’ because it could imply bestiality and necrophilia, which is having sexual intercourse with animals and corpse.

Eminent member Phuntsho Rapten, who is also a member of the committee, said the two sections should be removed in future when it is time but it is early right now as it would encourage such crimes. “The Penal Code of India was instituted in 1862 but it passed the LGBTIQ laws in 2018, after 146 years. Bhutan’s Penal Code was enacted only in 2004.”

Gasa’s NC member, Dorji Khandu, said the two sections affected LGBTIQ community in availing services such as marriage certificate.

House will deliberate whether to retain the two sections or repeal it. If there are differences between the two Houses, the bill will go to the joint sitting.

Meanwhile, the legislative committee members recommended removing Section 7 (b) of the Penal Code. The members justified the clause stating life sentence for the defendant for an offence against the Ku, Sung, Thukten and Zung should be removed because it overlapped with the Sections 131 and 351 of the Penal Code of Bhutan. 

The committee members justified that removing the clause would help defaulters redeem their actions.

However, other members did not support the committee’s proposal.

Haa and Trongsa NC members said that the clause shouldn’t be removed because it would increase vandalism cases against the Ku, Sung, Thukten and Zung, while the Dagana member suggested there should be clear definition on what is as Ku, Sung, Thukten and Zung.

Some, however, sought a middle approach where they said sentencing of the defaulters should depend on the type of monuments.

The deliberation of the bill will continue on January 20.