The principles of Gross National Happiness (GNH) are woven into the fabric of our Constitution. This holistic philosophy emphasizes wellbeing which must include justice. Thus, GNH advocates a humane approach to offenders focused on restorative, rehabilitation, and social reintegration through justice system. 

However, Section 15 of the Penal Code seemingly contradicts GNH principles by escalating punishments for repeat offenders without clear thresholds. While aiming to deter recidivism, the provision’s flaws outweigh its merits in the current form. With thoughtful refinement grounded in GNH values, Section 15 should be amended to reduce reoffending through means beyond punishment.

Firstly, Section 15 lacks specificity on the number of convictions required before enhancement to the next penalty level. This ambiguity allows room for inconsistent, disproportionate, or even unconstitutional sentencing. Nowhere does the provision define how many offenses at each tier lead to the next harshest punishment. 

To illustrate the issues with Section 15’s lack of specificity, consider a hypothetical case of repeat assault convictions. If an individual, let’s call him Defendant A, is convicted of assault under Section 156 and sentenced to a violation, he can pay a fine as violation is only amounts to fine not imprisonment. However, if convicted of the same offense a second time, Section 15 would enhance the penalty to a petty misdemeanour, carrying one month to less than one year imprisonment. The problems arise if Defendant A is convicted again. With no clear threshold delineated, there are rooms for varying interpretation. 

Some courts may allow the enhancement based on the immediate previous conviction, which was already enhanced, so a third conviction for defendant A could potentially trigger three to five years imprisonment as a fourth-degree felony, despite assault provides only violation as penalty.  Similarly, If Mr. A has committed a fourth-degree felony crime such as illicit trafficking of drugs, he could be sentenced for life with enhancements. If someone is sentenced for robbery of Ku-sung-thuk, it’s a first-degree felony and if he repeats the same offence, there is no enhancement for his repeat offence. Conversely, if enhancement is based on the initial violation, the punishments would remain petty misdemeanour in all future convictions.  Without defined parameters in the PCB, Section 15 is vulnerable to inconsistent, disproportionate, and potentially unconstitutional application. 

Secondly, both the Constitution and Civil and Criminal Procedure sets that a person is presumed innocent until proven guilty and CCPC mandates that the prosecution must prove beyond reasonable doubt to convict the person for the offence charged. However, with Section 15, the prosecution proves the offence for lower penalty and enhanced penalty is never proven. This would possibly mean; this provision is unconstitutional as it bypasses all these checks and balances. 

Thirdly, Section 15 focuses solely on retributive measures without equal attention to rehabilitation critical for reducing recidivism. Punishment alone cannot remedy the root societal or personal troubles that often underlie criminal acts. Restorative programs fostering positive life changes should complement penalties. Our criminal justice system must utilize restorative interventions over punitive measures to keep communities safe to uphold the principle of GNH.

As guardian of Bhutan’s unique national ethos, it is incumbent upon our legislatures to align Section 15 with the GNH tenets permeating the Constitution. With thoughtful revisions centering rehabilitation alongside proportionate punishments, the provision could exemplify a progressive model that deters future crime by empowering redemption. The Fourth Parliament must rectify these serious errors and ambiguities in the interest of justice. 

Sonam Tshering

Lawyer, Thimphu

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