In setting a precedent with its judgment, the Supreme Court has filled a grave lacuna that our legislature had overlooked.
The judgment will release 554 people who were arrested in relation to Spasmo Proxyvon Plus, a drug that is both abused and trafficked in the country but one which is not listed among the 255 that is annexed in the Narcotic Drugs and Psychotropic Substances and Substance Abuse Act, 2015.
These people, who were arrested and convicted over the last 21 months, can now pay for their prison terms.
The Supreme Court’s judgment is laudable for in creating a law it has empowered the Bhutan Narcotics Control Authority to update the list of banned drugs as and when necessary. The directive clears some inconsistencies that had prevailed since the Act’s amendment and prevented hundreds of people from wrongful conviction. It shows that the meaning of law before and after a judicial decision is not the same. It shows that after a judgment, the law is what the ruling states. It shows creation. It shows change.
But in doing so, the Supreme Court has pointed out the failure of the legislature to envision the future situation of drugs in the country by not putting in a clause that could have covered controlled substances that were not listed in the annexure.
It is understood that we cannot expect lawmakers, or anyone for that matter, to envision future circumstances. But it is also understood more so in a society such as ours that change is constant. Which is why, Article 2, Section 16 (e) of the Constitution states that the Druk Gyalpo, “exercise powers relating to matters which are not provided for under this Constitution or other laws.”
This provision ensures that the country does not become a victim to human limitations.
The Supreme Court’s observation on the Parliament’s oversight in the drafting of the Act is an important reminder. That it has come at a time when some of our parliamentarians themselves are involved in violating laws is perhaps a mere coincidence. It is hoped that the members of our legislature will take the Court’s expression as a reminder to draft and amend laws with provisions for change.
Should a motion be moved to amend the Act in the next session of the Parliament, it is also important that it looks at other sections. For instance, it has been observed that the pre-determined quantities of controlled substances a person is caught with determines the degree of sentencing and not so much the judiciary’s assessment of the gravity of crime. This may be debatable but to base prison terms on quantity of controlled substances may be limiting the courts from assessing the real situation.
The Supreme Court has played its role of bringing about a broader corrective action. The change is organic, which must be implemented well so that the gap between the society and law is bridged. It has protected democracy.