Self-defence is not a defence under criminal justice system of Bhutan

A man lost his life in Paro, when the son hit him with a sickle after the deceased pushed the mother. Many took to social media to support the son. Netizens justified that the son had a right of self-defence to protect his mother.

The doctrine of self-defence is a right to protect oneself or another person or one’s property or another’s property from an imminent unlawful action. Under this principle “a man is justified using as much force as may be necessary, even to kill the assailant” provided it was in good faith. However, the use of force “must always be proportioned to the occasion, and excess becomes, itself, an injury.”

For example, gun rights in the United States are considered an “inherent right of self-defence” and is considered “central to the Second Amendment right.” The right to gun ensures that “the need for defence of self, family, and property is most acute.” Right to self-defence is a constitutional right.

Section 3.04 of the Model Penal Code of the U.S incorporates that “a person may use force in self-protection to protect himself, his property or another person or another person’s property.”  The Penal Code of Bhutan (PCB), 2004 is based on this Model Code. While this Model Code is adapted in American states and includes the same provision, PCB does not contain this clause.

As a result, although there are provisions on defenses in the PCB, use of any force in response to imminent unlawful action to oneself or other person or personal or other’s property including death, assault, sexual violence, kidnapping, robbery, larceny is a criminal offence in Bhutan. Our Criminal justice system deprives our right to protect ourselves, our family, or property from unlawful actions of others.

For example,  a person while trying to defend himself or herself from possible death or bodily injury causes the death of another person, would constitute homicide (S.137) amounting to involuntary manslaughter (142) and can be sentenced for a minimum of three years imprisonment (S.143). This equates to the negligent homicide (S.144 & 145) under our penal law.

Unlike Bhutan, major criminal laws including Indian, American, Australian, British or Canadian recognized the right to self-defence. However, this right is conditional. Further, the burden of proof shifts from prosecutor to the accused to prove that the act was in private defence. Supreme Court of India said, “this right of private defence cannot be used to kill the wrongdoer unless you have reasonable cause to fear that otherwise death or grievous hurt might ensue in which case you have the full measure of a right of private defence.”

This right also has grey areas.  Quantification of objectives of elements like an imminent threat, sudden provoke, reasonableness, deadly or proportionate force, force much as necessary or necessity retreat are some of the major grey areas.

In nutshell, the right to self-defence is a double-edged sword. It is vulnerable to abuse and misinterpretation causing a miscarriage of justice. The balancing of self-defence and criminal act is extremely complex and complicated. Whether Bhutan should incorporate this right requires major policy decision. Inclusion of this right will impact the existing criminal justice immensely.  The legislature must assess the merits and demerits of this right carefully in considering  whether to include this right or not.

Sonam Tshering

Lawyer, Thimphu

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

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