The Supreme Court nullifies parliamentary act, making non-bailable offence bailable

In a recent news of child molestation case in Tsirang, it was reported that, the suspect was denied the right to bail.  Bail means “money or valuable collateral to ensure” that, a person arrested appear before the court as and when required and right to bail is a “temporary release” of suspect during the pendency of investigation or prosecution which ceases upon judgment.

In Bhutan, S.188.2 of Civil and Criminal Procedure Code, requires the judge to determine whether the offence is bailable or not, once the case is admitted. The right to bail exist only in bailable offences and not in non-bailable offences under CCPC. The Black’s Law Dictionary defines bailable as “an offense or person eligible for bail.”  CCPC provides the discretion to the judge whether to grant bail or not based on threat to public safety, severity of the charges, suspect’s past criminal record, age, physical and mental health conditions, views of victims or likelihood of flight and ability to deposit bond and production of surety.  

CCPC under S.199.8A, defines non-bailable offences as “an offence against the security and sovereignty of the country and an offence of or above felony of second degree”.

However, recently, the Supreme Court in the case of OAG v. Lhab Gyeltshen & others, struck down S. 199.8A as violative of Article 7(16) of the Constitution and declared null and void.  The Court reasoned that, under Article 7(16), a person charged with penal offence is “presumed innocent until proven guilty.”  The result of nullifying S.199.8A is, there is no non-bailable offence in Bhutan anymore. This means, even when a person is suspected or charged for undermining national security and sovereignty or terrorism or treason or any other heinous crime, the sole discretion lies with the judge to grant bail or not.

The Supreme Court in its wisdom seems to have overlooked the S.212A of CCPC as their concern is well addressed in this provision by ensuring the right to claim compensation from the state, if one is acquitted or unlawfully detained for the loss of income caused during the investigation or prosecution. Further, “presumed until proven guilty” is not same as “innocent”. The right to due process, expeditious hearing, habeas corpus, remand orders, or maximum number of days in detention also instituted to ensure that, the rights conferred under Article 7(16) is well protected.  

In the present case, the Court did not specify how and to what extent the S.199.8A is violative of Article 7(16), instead merely stated, it is violative of this Article. Therefore, while invoking Article 1(10), whether Supreme Court impacted the objectives of exclusive authority of legislature under Article 10(1) and Article 7(22) remains uncertain. In fact, under Article 7(22), the parliament has the authority to impose reasonable restriction on any fundamental right. Therefore, the current interpretation of the Supreme Court deserves discussion and debate as this judgment has quashed the entire concept of non-bailable offence from our legal system.  

With S.202.1 of CCPC still in force, this judgment may favour suspects who are wealthy over suspects who may not be able to deposit huge bonds in more serious cases particularly in corruption and monetary cases that can create wrong perception among the general public.

Unless the Supreme Court either overrides this decision or parliament enact a new provision, Bhutanese legal system would remain without non-bailable law.  

Sonam Tshering  Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.

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