The rule of law in response to national health emergency

The nation has never been more united than since the first Covid-19 case was confirmed in the country. The national interest and unity prevailed over political differences and personal interests.  This demonstrates the true spirit of collective responsibility under the leadership and guidance of our great monarchs.

However, some of our own people and a few from across the posed a great threat to this national emergency. Some engaged in flouting rules of quarantine, some resorted to smuggling drugs and tobacco, trying to enter through porous borders.

To curtail such health risks, our law enforcement agencies have been working beyond their normal duty to attend the call of the nation. In late April RBP issued a public notice warning that “besides sharing the information on the RBP Facebook shall invoke all relevant sections of the law and hand down community service such as cleaning public spaces, toilets, drains irrespective of gender and age.” And also requested the Judiciary to cancel the bail of those persons detained for suspected smuggling of drugs and tobacco during the pandemic period to “prevent them from getting involved” again and “send a strong message to others.”

Responding to the request, the judiciary not only agreed to cancel bail but also issued a standing order to all trial courts to conduct the proceedings of those flouting quarantine rules speedily. The order further directed the courts to additional charges by invoking Section 187.3 of CCPC to award the harshest penalty to serve as deterrence to others. Such prompt actions of both RBP and the Royal Court of Justice are need of the hour and are in the interest of the nation with the best of intentions. All these institutions deserve the best of our compliments.

However, such institutional actions though are justifiable under the present circumstances, do not seem to resonate with the existing laws and constitutional values under normal circumstances. The primary responsibility of RBP as per Article 28(3) of the Constitution is maintaining law and order and prevent and detect crime in the country and possess no authority to impose any kind of sanction while the accused has been detained.

Similarly, Section 5 of the Civil and Criminal Procedure Code (CCPC) establishes complete independence of the courts through the doctrine of non-interference in its decisions. The court can sentence the accused only on the full satisfaction of the court (S. 207, CCPC) and Article 7(16) guarantees the right to be presumed innocent until proven guilty and the right to life, liberty, and security can be deprived only in accordance with due process of law under Article 7(1).

Therefore, through such actions, there are chances of infringing on the fundamental rights of people, judicial independence of lower courts, and encroachment on parliament’s authority of legislation.

His Majesty the 4th Druk Gyalpo once said: “The quality of judicial service will determine the credibility and the performance of governance and the stability of the country.”

The most effective way of providing quality judicial service is by building public confidence in the institution. But public trust in law enforcement and confidence in the judiciary depends on how these institutions conduct themselves within the realm of rule of law.

Sonam Tshering Lawyer, Thimphu

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

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