… while interpreting the compensatory damages clause in the Penal Code

Penal Code: Judges around the country can use their discretion in applying the amended section 39 of the Penal Code of Bhutan in matters of compensatory damages.

The Supreme Court issued this order recently to correct flaws in the amended penal code of Bhutan, 2011 and ensure that the law is applied uniformly.

The order stated that there was a clerical error while drafting the provision in Dzongkha.

The English version provides for payment of a maximum of 10 years national daily wage rate at the time of the crime as compensatory damages. The Dzongkha version allows no discretion to judges on compensatory damages when the crime has resulted in the death of the victim and provides for the full payment of 10 years national daily wage rate to the next of kin of the victim.

The Dzongkha version did not have the term maximum in the said provision. However, section 514 of the penal code states “The Dzongkha text shall be the authoritative text, if there exists any difference in meaning between the Dzongkha and the English texts.”

While amending the penal code in 2011, the parliament, instead of adding the term maximum to the Dzongkha version, removed it even from the English version. “The efficacy of giving precedence to the Dzongkha version is redundant in the present context as the amendment has made the provision arbitrary and unreasonable,” the SC order stated.

The application of section 39 has been made mechanical, the SC noted, and in the manner the amendment has been formulated, judges are not required and that a computer would suffice.

“it deprives the judiciary from rendering justice and consideration of mitigating and aggravating circumstances in awarding compensation,” the order stated.

“The Supreme Court being designated as the final arbiter of the Constitution under Article 1 Section 11, and in consonance with the relevant fundamental right incorporated under Article 7 section 15 of the Constitution pertaining to equality before the law and entitled to equal and effective protection of the law, directs the use of discretion in applying amended section 39 of the Penal Code to ensure that the law is applied uniformly.”

The amended section 39 states that if the court determines that compensatory damages are appropriate, then a defendant convicted of a crime shall pay appropriate compensatory damages.

The compensatory damages should be paid at the rate of the daily minimum national wage rate at the time of the crime for 10 years to the victim or surviving spouse or next kin and the cost for 49 days for seven people towards the expenses incurred in the funeral rites of the deceased, when the crime has resulted in the death of the victim; or 10 years if the crime causes permanent total disability to the victim.

The Supreme Court also set a new guideline for calculating the payment of compensatory damages under the section 39 (a) and (b.)

The compensation starts from Nu 45,000 to Nu 90,000 for 10 years and below; Nu 90,000 to 135,000 for 10 to 25 years; Nu 180,000 to Nu 450,000 for 25 to 35 years; Nu 135,000 to 180,000 for 45 to 55 years; Nu 90,000 to Nu 135,000 for 55 to 65 years, and Nu 45,000 to 90,000 for those above 65 years.

The order directed the judges to apply the guidelines in awarding compensation to victims after due consideration of the existing aggravating and mitigating circumstances in the each case.

The national minimum wage rate has been revised from Nu 100 to Nu 125 a day or Nu 3,750 a month or Nu 45,000 per annum.

Meanwhile, the order also asked the judges to deal monetary matters with clear-cut agreement to fast track and counter the delay tactics used by the debtors.

“Calculation of interest in accordance with the mischief rule (difference in Dzongkha and English version) interest must be accrued until the judgment debt is satisfied for uniformity in application of the law,” the order stated.

Interest on an obligation under a loan continues to accrue at the rate specified in the judgment, until such time the judgment is delivered and the debt is satisfied in accordance with the Moveable and Immoveable Properties Act, 1999 of the English version of the Act.

Courts involved in auctioning property mortgaged with banks or property related to loans must involve financial institution concerned for transparency and the amount recovered must be deposited with the bank concerned and not the government’s revenue account.

Calculation of time granted for auction shall be tolled from the date the judgment was rendered by the final court and not from the date of issuance of orders by the enforcing court. “Henceforth, appellate courts should specify the time for auction in their enforcement order,” the SC order stated.

By Rinzin Wangchuk