Legal Opinion

Constitutionality of the Bhutanese Right to Information Bill 2013

Right to or freedom of information is very important in a democratic society. The access to or availability of information will help unearth the truth behind all the decisions.[1] Freedom of information is fundamental to the preservation of an open democratic society.[2] Without this freedom the freedom of speech and expression cannot be materialized, which would then inhibit constructive debates. Similarly, information is a means to self-realization. It enables individual to grow, become fulfilled, and to develop their rational faculties.[3] The availability of information will also enhance the social interaction leading to the development of a peaceful community. One of the most important functions of this freedom is that it ensures transparency and accountability.[4] Therefore, right to information is not to be taken very lightly.

Recognizing the important roles played by the right to information, in this essay an attempt will be made to examine the constitutional validity of the proposed Right to Information Bill of Bhutan. While examining the validity, various relevant practices in Australia will also be explored and discussed. Before, delving into main essay question, effort will be made to comparatively study the constitutional and legislative protection of right to information both in Bhutan and in Australia. Throughout the process of examining the validity of said Bill, references will be made to relevant Australian laws and practices.

The right to information has different meaning and nature in different jurisdictions. Special reference can be made to Bhutan and Australia. In Bhutan, it is right to information, whereas in Australia it is freedom of information. Article 7(3) of Bhutanese Constitution uses expression ‘right to information’,[5] where as title given in Australia is ‘the Freedom of Information Act 1982 (Cth). Therefore, it can be easier in Bhutanese context to say that it is positive right, meaning the government has duty to ensure the access to information. In Australia it can be understood differently. ‘Freedom’ signifies, negative duty upon state. That is, state will have no positive duty to provide what is guaranteed, only duty owed is negative duty not to limit the freedom guaranteed. In Bhutan, right to information is a fundamental right recognized by the Constitution.[6] Article 7(3),[7] provides that a Bhutanese Citizen shall have right to information. Bhutan has therefore, taken most liberal and human rights perspective. This can be attributed to the Article 19 of the Universal Declaration of Human Rights (UDHR),[8] and the International Covenant of Civil and Political Rights (ICCPR),[9] which provides that everyone has the right to seek, receive and impart information.

However, in Australia whether right to information is a Constitutional right or not is uncertain. Some Judges, particularly Mason J., held that the right to information is part of the implied freedom of political communication.[10] He expressed that the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people.[11] Many scholars and writers seem to agree to this statement. Anthony Gray argues that there is clear links between freedom of communication about political affairs, and the nature of right guaranteed by the Freedom of Information Act, and this freedom must be recognized as implied freedom of political communication.[12] Richard Jolly argues that the ability to obtain information is just as important for the proper functioning of a democratic society as the ability to discuss that information.[13] However, to date the freedom of information as an implied freedom is unclear. It seems that the decisions on the implied freedom have largely concentrated on the more obvious aspects of free speech and electoral laws concerning the political affairs. Though the freedom of information as a constitutional right is not certain, it can be ascertained that this freedom is accorded the legislative protection through the Freedom of Information Act 1982. Therefore, in Australia the right to information is accorded the legislative protection.

Given the difference in the nature of this right, both scope and purpose of protection will also be different. It is very important to note that there is a high degree of difference between an ordinary right and a Constitutional right. The fundamental right is considered even higher in degree than that of a constitutional right. The right guaranteed by an ordinary legislation can be terminated any time by the act of the Parliament. However, right guaranteed by the Constitution cannot be abridged easily as it involves strict amendment procedures. In Australia Chapter VIII,[14] requires that the absolute majority in both Houses must adopt amendment, and majority in the referendum must further confirm it.[15] Similarly in Bhutan, the amendment of the Constitution is effected only by three-fourth majority of total number of members in a joint sitting, compared to a simple majority requirement for amendment of ordinary legislations.[16]

Most interestingly, as right to information in Bhutan is given human rights status, its scope is higher in a degree. As per Article 10(25),[17] existing international conventions and treaties before adoption of the Constitution, and international conventions and treaties ratified by the Parliament shall be deemed to be the law of the Kingdom of Bhutan. As Bhutan is party to ICCPR, Article 19 of the said Covenant will have same legal recognition as any other domestic laws. This is something different from Australia. In Australia, there is requirement to enact a domestic law to give an effect to the international treaty.[18] Therefore, right to information in Bhutan is wider is scope; it can cover any information which is essential for citizen to participate in a decision-making process and for their development of human dignity.

However, in Australia it is limited to the provision of the Freedom of Information Act. The scope and purpose of the freedom of information law can be related to legislative history. As per Curtis, the Freedom of Information Act mirrors the view expressed by Mason J in Commonwealth v John Fairfax and Sons Ltd:[19] non-disclosure of documents can be justified only if it would injure the public interest. Otherwise, disclosure will be in the public interest ‘in keeping the community informed and in promoting discussion of public affairs’.[20] Therefore, it seems that the objective behind this law was to give the public, the access to documents held by the government. More importantly, after going through the Act, it appears to be true that the Freedom of Information Act is framed around request for existing documents rather than information more generally.[21] It would be very unfortunate if the information sought is not contained in an existing document. Individual seeking information won’t be able to get it, as an agency or minister is not obliged to respond to the request by creating a new document.[22] Therefore, the scope of the freedom of information law is not wide enough to cover general information if not contained in the document requested.

The scope of the Commonwealth freedom of information law was considered in McKinnon v Secretary, Department of Treasury.[23] Section 3(1),[24] states the Act seeks to extend as far as possible the right of the Australian community to information in the possession of the Commonwealth government. It can be deduced from this that the objective of this law is to provide greater openness and accountability in government decision making.[25] However, s 36(3),[26] allows minister to sign a certificate stating that disclosure of information would be contrary to the public interest. Therefore, in this case, the majority in Federal Court gave more weightage to the conclusiveness of the Minister’s certificate. It was held that there is no requirement to undergo a weighing or balancing exercise while exercising review power by the Tribunal under s 58(5).[27] It was enough to rely on the Minister’s certificate to decide that refusal was not irrational or absurd.[28] And the High Court of Australia confirmed this decision.[29] This further, narrowed down the scope of the Act. If the Minister is empowered to avoid compliance with the Act by merely issuing a certificate that the disclosure of the material would be contrary to the public interest, then the realization of this freedom would remain a dream. Therefore, the High Court needs to consider that the freedom of information is facet of implied freedom of political communication. It is because, there is rare possibility that the information held by government won’t be relevant to voting choice.[30] If it is given status of constitutional right, its scope would then be comparatively wider. However, it won’t still achieve the widest of its scope. This is because, in Australia it is judicially accepted that the negative nature of the implied freedom is immunity from laws and executive actions rather than a source of individual rights.[31]

Relying on these detail background and comparative examination, it can be said that the Constitutional setting of Australia is different. The freedom of information is not strictly given status of the implied constitutional right. Therefore, it is justifiable in Australia to have the Freedom of Information Act. However, in Bhutan as mentioned above, it is already recognized as both fundamental and human rights. Therefore, the Right to Information Bill may prove detrimental to this unlimited right. It is therefore, important to consider the validity of the said Bill if it is passed by the Parliament.

Bhutan is still young to democracy, so is its judiciary. There was only one occasion where judiciary was call up on to consider the validity of legislation: The Government of Bhutan v the Opposition Party.[32] In this particular case, there was no clear or particular validity test adopted. However, the result is that provisions of any law, which are inconsistent with the Constitution, shall be null and void.[33] Therefore, for the purpose of this essay, it may be relevant to test the validity as per characterization tests adopted in Australia. Australian High Court has adopted four steps of characterization; (i) identifying head of power in the Constitution,[34] (ii) identifying the subject matter covered by the head of power,[35] (iii) examining whether there is sufficient connection;[36] and (iv) examining if there is any limitation under the Constitution.[37]

First test won’t apply in Bhutan, as there is no division of legislative powers like in Australia.[38] It is a single bicameral parliamentary system in Bhutan. Article 10(1),[39] provides that all legislative powers are vested in the Parliament. As per Article 10(2),[40] the Parliament can enact laws, which are to safeguard the interests of the nations and fulfills the aspirations of the people. The expression “all legislative powers” shows that the Parliament have unlimited power to legislate on any head. Therefore, there is no requirement to identify the head of power for legislating on a subject matter.

It is not necessary to delve into second and third tests in very detail. It is very clear from the Article 10(1) and (2),[41] that the Parliament can legislate on any head and in subject matter as long as it is not limited by the Constitution itself. Therefore, legislating on right to information is well within the legislative power, conferred by Article 10,[42] to the Parliament.

Fourth test of validity require us to see whether the legislative power is limited by the Constitution. To answer this particular question, it will require us to read whole text of the Constitution. The test however is to apply Article 1(10),[43] and see if provisions of the Right to Information Bill violates or is inconsistent with the provisions of the Constitution.

Legislating on right to information may limit fundamental right to information guaranteed by the Constitution.[44] This is because, fundamental right is wider in nature, while the right provided by the Information Bill is restrictive. As per s 40 of the Right to Information Bill, information can be provided only if the overall public interest in disclosure outweighs the harm to a protected interest from that disclosure. Therefore, from this it can be understood that information can be denied if its disclosure has no relevance to public interest. However, under Article 22,[45] the Parliament can impose reasonable restriction on fundamental rights only by law. The understanding of this provision is that the right to information can be restricted only by enacting law to that effect, and the law so enacted must be reasonable. Restriction can be imposed if it concerns sovereignty, security and public order. Restrictions imposed can be reasonable only if there is high risk and danger to security, and stability of the nation. Therefore, limitation or restriction imposed on freedom of information by the Right to Information Bill if not reasonable may not pass the reasonability test.

The Right to Information Bill makes an attempt to reduce fundamental right to ordinary right. Section 43,[46] provides for list of exempted information. That is, information which government has no duty to disclose. Some of these exemptions are additional to restriction permitted by Article 22.[47] Another compelling reason is that it takes away fundamental right to approach court directly. Otherwise in Article 7(23),[48] a person has the right to initiate appropriate proceedings in the Supreme Court or High Court for enforcing fundamental rights guaranteed by the Constitution. Therefore, imposing too much of restrictions and taking away of fundamental right to judicial proceeding is untenable.

The Right to Information Bill may also result in discrimination. The Chapter 4 of the Bill authorizes the Ministry to establish a fee structure for giving information. Therefore, citizen who wants information has to pay for it. Most possibly this would become platform for discrimination, as some marginalized group may not be able to afford. This might, attract the Article 7(15),[49] which ensure equality before law and prohibits discrimination on the grounds of race, sex…or other status. This not only concerns discrimination issue but also reduces fundamental right to distinctive or unusual right. That is, it makes an attempt to provide right only to group who can pay for the information. Free flow of information is very important in democracy. The charging of fees would tantamount to imposing of unreasonable restriction. It is duty of government to publish and make information available to the public. Their decisions and reasons for decisions must be published and made known free of cost.

The adjudication of right to information cases by the Ministry may breach the doctrine of separation of powers enshrined in the Constitution.[50] The Bhutanese Constitution explicitly provides that there shall be separation of powers between the branches of the government and no encroachment is permissible.[51] Under Chapter 6 of the Right to Information Bill, the Ministry of Information and Communication is empowered to decide the information case. The power conferred includes power to decide on issue of refusal, reasonability of fees, time taken to give information, adequacy of information and many more. All subject matter of the right to information guaranteed by the Constitution is covered. Since power exercised by the Ministry is enormous, it might amount to exercise of the judicial power thereby encroaching up on the separation of judicial power.

Therefore, it is necessary to test if the Ministry is exercising the judicial power. However, before dealing with this issue it is very important to comparatively study the power conferred to the Ministry with the equivalent practices in Australia. In Australia, the similar powers conferred to the Ministry in Bhutan are to some extent enjoyed by the Office of the Australian Information Commissioner.[52] It is by virtue of s 8(h) of the Information Commissioner Act 2010, and ss 54L and 54M of the Freedom of Information Act 1982 conferred with power to review decision of agency or minister relating to refusal or grant of access. However, it is not the only body that reviews such decision, agency or minister has internal review power under ss 53A and 53B. Similarly, the Administrative Appeals Tribunals (AAT) under s 57A can further review decision reviewed by the Information Commissioner.[53] The only power it has is to review decision on balancing interest of disclosure and non-disclosure of information. It has no power to remit a decision to an agency for reconsideration or to sanction remedy.[54] In the Bhutanese context, while the Ministry enjoys similar power, it also has extreme power to order agency to compensate the complainant for any loss or other detriment suffered, and to order agency to take steps as necessary to secure compliance with the provision of the Act.[55] Therefore, the power given to the Ministry in Bhutan is wider than the power exercised by the Information Commissioner in Australia.

With this note, it is time to examine whether the review power or decision-making power exercised by the Ministry in Bhutan and the Information Commissioner in Australia is judicial power. For this purpose, first thing to do would be to identify agency that can exercise judicial power. In Australia, judicial power of the Commonwealth is vested in the High Court of Australia and other federal courts created by the Parliament.[56] In Bhutan, judicial power is vested in the Royal Court of Justice, which is comprised of the Supreme Court, the High Court, and other lower courts.[57] This power may also be conferred to other courts and tribunal established by the Druk Gyalpo,[58] on the recommendation of the National Judicial Commission.[59] Under Article 21(1),[60] the judiciary is given power to safeguard, uphold, and administer justice fairly and independently in accordance with the rule of law. This vests on judiciary the power to adjudicate disputes between subjects, and subjects and the government.

Secondly, it is important to examine nature and scope of judicial power exercised by the agency that is conferred with the judicial power. That is, nature and scope of power exercised by these Courts. In Australia, Griffith CJ made an effort to define ‘judicial power’ as power to give binding and authoritative decision of controversies between subjects or between subjects and the Crown by a Tribunal, which is called upon to take action.[61] Another aspect of judicial power is that it consists of giving decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past event or conduct.[62] The judicial power includes with the decision the power to carry that judgment into effect between the contending parties.[63] In simple words, judicial powers involve giving binding and authoritative decision on disputes relating to rights and obligations, and the decision must be executable by the authority making the said decision. However, in Bhutan no attempt has been made to date in defining ‘judicial power’. Therefore, definition adopted in Australia will be relied upon in this essay.

Relying on these backgrounds, does either of the Ministry in Bhutan and the Information Commissioner in Australia exercise judicial power? As aware, the Information Commissioner merely reviews the decision concerning refusal or grant of access to information relying on conflicting interest of disclosure and non-disclosure. It cannot bind the party to review with its decision, as it is further subject to review by the AAT. There is nothing mentioned in the law that it can make binding and conclusive decision. Therefore, there is no decision made by adjudicating upon disputes as to rights or obligations. It is therefore, clear that power exercised is not a judicial power. To the contrary, the Ministry in Bhutan is empowered to issue order to agency requiring it to take certain steps and also to pay compensation to the complainant. This indicates that the Ministry is accorded with a power to adjudicate upon disputes as to rights or obligations. Interestingly, s 53[64] provides that the appeal against the decision of the Ministry must be made within 10 working days of the receipt of such a decision. This time frame for appeal is practiced within the tiers of Courts in Bhutan.[65] This attribution indicates that the Ministry’s decision was intended to be binding and conclusive, thereby, fulfilling all the attributes of the judicial power. Therefore, power conferred to the Ministry in Bhutan is ultra vires Article 21(2) of the Bhutanese Constitution.

Another distinguishing factor is that the power to adjudicate or decide on matters related to fundamental rights is explicitly given to Supreme Court and High Court by the Constitution in Bhutan.[66] As right to information is fundamental right under Article 7(3),[67] only these two Courts can decide matters relating to this right. The Right to Information Bill by conferring power to the Ministry takes away this power from the Supreme Court and the High Court. Therefore, it encroaches upon judicial power, which is conferred to these two Courts by virtue of Article 7(23) and 21.[68] Therefore, as the Ministry is not equivalent to the Supreme Court or High Court, and as it is not established as per the procedure required for the establishment of the court, it cannot exercise the judicial power.

Only possible hope of defending against this breach is limitation provided for by second part of the Article 7(23).[69] Under this provision individual has fundamental right to initiate appropriate proceedings in the Supreme and High Court for enforcing his or her fundamental rights. However, second part of it provides that this right is limited to ‘procedure prescribed by law’.[70] Therefore, can it be said that the Right to Information Bill prescribes for procedure within the purview of this provision. That is, can it be argued that conferral of adjudication power related to right to information is well within the power conferred to the Parliament by the second part of the Article 7(23). To resort to such construction could prove very vital. The expression ‘procedure prescribed by law’ should be read to mean ‘procedure prescribed by law, which is to be followed by the Supreme Court and the High Court’ while deciding matters relating to the fundamental rights. To interpret otherwise would mean to give unlimited power to the Parliament to take away judicial power by enacting laws. It would be absurd if the Parliament enacts law enabling the Legislative or Executive branches of government to decide on Constitutional cases. Therefore, legislating on matters taking away judicial power would undermine the very objective of having the Constitution and the principles of the rule of law. It would undermine the doctrine of separation of powers enshrined in the Constitution. Hence, the provision of the Right to Information Bill, which takes away power conferred on the Supreme Court and the High Court by Article 7(23),[71] cannot pass the Constitutional validity test under Article 1(10).[72]

Therefore, the Right to Information Bill, if passed would be invalid to the extent of inconsistency and constitutional limitation. In other words, the whole Bill may not be invalid. That is to say, the validity of the Bill if enacted can be challenged on the grounds discussed and examined in this essay. That is, charging of fees can lead to unreasonable restriction and even to discrimination. The addition of exemptions for disclosure of information, which is provided under Article 7(22) of the Bhutanese Constitution, may not past the reasonability test. Similarly, provisions relating to adjudication power conferred to the Ministry can be challenged. It purports to confer the judicial power, and more importantly exclusive judicial power conferred to the Supreme Court and the High Court by Article 7(23) of the Bhutanese Constitution. However, provisions relating to procedure for obtaining information, and other consistent provisions will continue to remain valid. This is because, in the Government of Bhutan v Opposition Party,[73] the Supreme Court (the Apex Court of Bhutan) adopted the doctrine of eclipse and severability. It was held that this doctrine is enshrined in the wordings of the Article 1(10) of the Bhutanese Constitution. The assumption is that only provisions, which undermines or are inconsistent with provisions of the Constitution, will be invalid.

It is very likely that some of the provisions of the Right to Information Bill if passed by the Parliament may not pass the Constitutional validity test. To reach to this conclusion, in this essay the attempt was first made to define and identify the importance of the right to information. Further, the attempt was made to examine comparative nature and scope of laws protecting this right, that is, both constitutional and legislative protection in Australia and Bhutan. Relying on these backgrounds and concepts, the validity of the Right to Information Bill was tested through the characterization process adopted in Australia. While doing so, it was found that the provisions of the Constitution limit some of the provisions of the Right to Information Bill. Most appealing limitation being the judicial power conferred to the Ministry to adjudicate right to information disputes. While doing so, references were made to the judicial decisions in Australia, and the power of the Ministry was compared to the power of the Information Commissioner in Australian. It was found that, the power conferred to the Information Commissioner might be easier to pass the validity test, while it may not be the case in Bhutanese context. Lastly, it was concluded that the Right to Information Bill can be declared invalid to the extent of inconsistency as per the doctrine of eclipse and severability adopted by the Supreme Court of Bhutan.[74]

[1] Nima Dorji, ‘Is there Free Speech without Reason?’ (2013) 1 Bhutan Law Review 56.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] The Constitution of the Kingdom of Bhutan 2008.

[6] Ibid Article 7(3).

[7] Ibid.

[8] The Universal Declaration of Human Rights 1948.

[9] The International Covenant of Civil and Political Rights 1966.

[10] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

[11] Ibid.

[12] Anthony Gray, ‘FOI and the Freedom of Political Communication’ [2007] 12(1) Deakin Law Review 193.

[13] Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ [2000]) 28(1) Federal Law Review 41.

[14] Australian Constitution.

[15] Ibid.

[16] The Constitution of the Kingdom of Bhutan Article 35(2) .

[17] Ibid.

[18] Commonwealth v Tasmania (1983) 158 CLR 1.

[19] (1981) 147 CLR 39, 52.

[20] L. J Curtis, ‘Freedom of Information in Australia’ [1983] 14(1) Federal Law Review 5.

[21] Office of Australian Information Commissioner, Review of Freedom of Information Legislations, 5 December 2012 < http://www.ag.gov.au/Consultations/Documents/ReviewofFOIlaws/OAICsubmissionHawkereview.doc.&gt;.

[22] s 20: The Freedom of Information Act 1982 (Cth).

[23] [2006] 80 ALJR 154.

[24] Freedom of Information Act.

[25] Gray n 12 [194].

[26] Freedom of Information Act.

[27] Ibid.

[28] McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70.

[29] McKinnon v Secretary, Department of Treasury [2006] 80 ALJR 154.

[30] Jolly n 13 [45].

[31] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

[32] (2011) SC.

[33] The Constitution of the Kingdom of Bhutan 2008 Article 1(10)

[34] Re Dingjan; Ex parte Wagner (1995) 183 CLR 323.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Section 51 of the Australian Constitution provide list of powers, which can be exercised both by State and Commonwealth Parliaments.

[39] The Constitution of the Kingdom of Bhutan 2008.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid Article 7(3).

[45] Ibid.

[46] The Right to Information Bill.

[47] The Constitution of the Kingdom of Bhutan 2008.

[48] Ibid.

[49] Ibid.

[50] Ibid Article 1(13).

[51] Ibid.

[52] Established by virtue of the Australian Information Commissioner Act 2010.

[53] Freedom of Information Act 1982.

[54] Review of freedom of information legislation n 21.

[55] The Right to Information Bill of the Kingdom of Bhutan 2013 s 54(1) and (3).

[56],Australian Constitution s 71.

[57] The Constitution of the Kingdom of Bhutan Article 21(2).

[58] ‘Druk Gyalpo’ is King of Bhutan in English.

[59] The Constitution of the Kingdom of Bhutan Article 21(2).

[60] Ibid.

[61] Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 [357], See also Blackshield and Williams, Australian Constitutional Law and Theory Commentary and Materials (The Federation Press, 5th ed, 2010) 612.

[62] R v Gallager; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 [Kitto J].

[63] Waterside Worker’s Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 [Barton J].

[64] The Right to Information Bill of the Kingdom of Bhutan.

[65] Look for relevant s of the Civil and Criminal Procedure Code 2001 s. 96.5.

[66] The Constitution of the Kingdom of Bhutan Article 7(23).

[67] Ibid.

[68] Ibid.

[69] Ibid.

[70] Ibid Article 7(23): All persons in Bhutan shall have the right to initiate appropriate proceedings in the Supreme Court or High Court for the enforcement of the rights conferred by this Article, subject to section 22 of this Article and procedures prescribed by law.

[71] Ibid.

[72] Ibid.

[73] (2011) SC.

[74] Ibid.

 

 

STATE vs. SONAM: TOBACCO PRODUCTS SMUGGLING CASE ANALYSIS:

Facts of the Case in Brief

Sonam was apprehended possessing tobacco products and was charged for smuggling the same. The issues that arose before the Trial Court were:

  1. Whether his act tantamount to smuggling?
  2. Whether the Accused is entitled to claim the defense available under Section 51 of the Tobacco Control Act, 2010 on revealing the source of supply or not?
  3. Whether Penal Code has overriding effect over Tobacco Control Act or not?
  4. Can the Accused claim the defense of the ignorance of Law?

Trial court held that the Accused’s act of importing tobacco products without paying duty amounted to smuggling. Therefore, court sentenced him to three years imprisonment, the lowest imprisonment possible as per the Act.

What is smuggling?

No provision of Tobacco Control Act defines the expression “smuggling”. However, as per Black Law Dictionary, the expression “smuggling” is defined as crime of importing or exporting illegal articles or articles on which duties have not been paid. In other words, “smuggling” is an act of importing or exporting prohibited or dutiable goods secretly. Similarly, Section 279 of Bhutan Penal Code, 2004 defines expression “smuggling” as “secretly and illegally importing or exporting the restricted and prohibited goods or substances…”

As per the Tobacco Control Act of Bhutan smuggling can be categorized into two types. i.e., firstly, import of tobacco products secretly without payment of duty, and another by presumption. That is, as per Section 51, though a person did not import tobacco products in reality, his failure to reveal the source of supply within Bhutan is leveled as smuggling.

Therefore, person importing tobacco products without paying duty shall be liable to be punished as per Section 52 of the Tobacco Control Act. That is, any person importing tobacco products in violation of Section 13 of the Act, which states “a person importing tobacco and tobacco products for personal consumption shall pay duties and taxes as specified in rules” shall be liable to be punished as per Section 52 of the Act. As per this provision, particular person is liable to be punished with minimum sentence of felony of fourth degree.

To the contrary, a person who fails to reveal source of supply within Bhutan is liable to be punished as per Section 51 of the Act. As per this particular provision, a person is liable to punished with minimum sentence of felony of fourth degree in addition to misdemeanor.

The present case falls under the first category that is importing of tobacco products without paying duty. Hence, trial court has rightly convicted the Accused under Section 52 and not under Section 51 of the Act.

Can Accused in present case claim lesser punishment under Section 51, by revealing source of supply which is not within Bhutan?

As per Section 51, if person is apprehended for violating Section 11(c), and if he/she reveals source of supply, the person charged shall be punishable with misdemeanor. As per Section 11(c), a person in the country is prohibited from selling and buying tobacco products. This particular provision cover act of selling and buying tobacco within the country. In other words, both seller and buyer should be within the country. Therefore, no person shall sell or buy tobacco in the territory of Bhutan. The expression “a person in the country is prohibited from selling and buying tobacco products” has to be interpreted to mean selling and buying within the territory of Bhutan. However, if the said expression is read to mean selling and buying outside the country, there is no need for incorporating various provisions on import of tobacco products in the Act.

The expression “selling and buying” cannot be equated to expression “import and export”, and if these expressions are read to mean same thing, there is no need for having two different penal provisions, i.e., Section 51 and Section 52. Moreover, if expression “selling and buying” is read to mean “selling and buying” outside the territory of Bhutan, the very purpose of having Section 51 is defeated. That is because, Section 51 provides for a situation where if person fails to reveal the source of supply he/she shall be punished for smuggling. That means if person reveals source of supply, it won’t amount to smuggling. But it may not have been the intention of the Parliament to create such a situation where if a person reveals source of supply then it is not smuggling and if a person fails to reveal the same, then it is smuggling.

If Parliament intended to make defense available even to person importing tobacco products, then every person will reveal foreign sources and claim the defense available in Section 51 of the said Act. If this is the case, the ultimate intent of having Sections 12, 13, 14 and 52 is defeated. Therefore, it must be understood that the very fact of importing of dutiable goods without paying duty tantamount to smuggling.

Therefore, distinction is very clear, the buying and selling happens within the territory, but import and export happens across borders. Therefore, what happened in present case was the import of tobacco products. Therefore, the intent of the Parliament is very clear, that, selling and buying of tobacco within Bhutan is altogether prohibited. The only option available for tobacco consumer is to import tobacco as per Sections 12-13 and comply with Section 14. If a person wants to consume tobacco products, he or she must import as per the quantity approved and must pay duties and taxes accordingly. If any person imports tobacco products violating Sections 12 and 13, he or she shall be guilty of the offence of smuggling. The same thing happened in the present case; the Accused imported tobacco products but failed to comply with Section 13 and 14.

Therefore, for the reason stated above, a person who has violated Section 12 shall not have defense available in Section 51 of the Act, because, Section 51 is punishment for either buying or selling tobacco products within Bhutan only. The exception that “if person reveal the source of supply, he or she shall be punishable with misdemeanour” is available only to person who buys tobacco within the territory of Bhutan, but not to a person who imports tobacco products. Therefore, in the present case, the Accused cannot claim that he revealed the source of supply and is only liable to be punished with misdemeanour, because, the act of importing tobacco products does not tantamount to buying of tobacco products within the purview of Section 11(c). That is why the Accused was convicted for smuggling tobacco products and sentenced to three years imprisonment which is the minimum duration available in case of the felony of fourth degree.

The issue of overriding effect of Penal Code over Tobacco Control Act

Section 280 of Bhutan Penal Code, 2004 states that the punishment for smuggling shall be value based sentencing. However, the minimum punishment provided for smuggling by the Tobacco Control Act is felony of fourth degree. Therefore, difference between two legislations is loud and clear. Therefore, can we say that the Penal Code is mother of penal law and all penal law has to be consistent with it?

The duty of court is to ascertain the intention of legislature. Therefore, judiciary should not interpret any law to give meaning which has no effect or to render it void. It would never be an intention of the Parliament to pass any law which doesn’t have meaning or an effect. Therefore, the expression “interpretation” is basically ascertaining the legislative intent. Similarly, all rules of interpretation of statute are tools for the courts to help in ascertaining the intent of legislature.

Hence, courts should not interpret a statute so as to be inconsistent with other statutes. Whenever there is an inconsistency, the judiciary should attempt to provide harmonious interpretation.[1] A statute of any enacting provision therein must be construed as to make it effective and operative as expressed in the maxim ut res magis valeat quam pereat.[2] In other words, every word of a statute should be read to give it meaning, and so the court must avoid interpretations that render words unnecessary or meaningless.[3]

Similarly in the present case, Section 51 and 52 of the Tobacco Control cannot be rendered void merely because, it imposes higher degree of punishment than that of so mentioned under Section 280 of the Bhutan Penal Code, 2004. Hence, harmoniously constructing, the punishment provided for by Section 280 of the Bhutan Penal Code must be construed to mean punishment for smuggling other goods excluding tobacco products. That way, both the provisions will remain operative.

Otherwise also, it is general rule of interpretation that when two provisions or statutes conflict, the latter or one enacted last prevails. This principle is enunciated in maxim “Leges posteriores priores contrarias abrogant.[4] Therefore, in the present case, to the extent of punishment for smuggling tobacco products Sections 51 and 52 will prevail over Section 280 of the Bhutan Penal Code.

Also it is generally accepted principle that general things do not derogate from special things. This is so rooted in the maxim generalia specialibus non derogant,[5] Therefore, punishment provided for under Section 280 of Bhutan Penal Code is for general smuggling, when punishment provided for by Section 51 and 52 of Tobacco Control Act is specifically for smuggling of tobacco products. Hence, when it comes to imposing punishment for smuggling of tobacco products, it is the Tobacco Control Act which shall have upper hand.

Moreover, in interpreting a statute, the court presumes that the legislature is aware of the law on the same subject and the effect of new enactments on existing laws.[6] In the present case as well, court has to presume that the existence of Sections 279 and 280 of Bhutan Penal Code is known to Parliament while incorporating Sections 51 and 52 of the Tobacco Control Act. Therefore, we can’t outweigh the intent of Section 51 and 52 of the Tobacco Control Act, which was enacted in latter point of time.

Likewise, the intent of legislature can be ascertained from the language of the Section 2 of the Tobacco Control Act which states that “any provision of any law, rule or regulation, government directives, circulars and announcements that are inconsistent with this Act shall be repealed.” Therefore, it is very clear that when it comes to the control of tobacco products the governing law should be Tobacco Control Act and not any other law.

Similarly, validity of any law or provision is tested in light of the provisions of the Constitution and not based on the provision of other legislations. Therefore, as long as the Statute enacted does not violate the provisions of Constitution, the said law is perfectly fine. Moreover, it is not desirable to test the validity of law twice.

Therefore, on considering all above reasons, it is my opinion that, provision of Bhutan Penal Code will have no overriding effect over Tobacco Control Act. However, not to say that, provision of either Statute is rendered void altogether by one another. When it comes to smuggling of tobacco products, the Tobacco Control Act shall prevail. In other words, Sections 51 and 52 has to be read as exception to Sections 279 and 280 of the Bhutan Penal Code. When it concerns smuggling of goods other than tobacco products, then the Accused has to be dealt as per Section 280 of the Penal Code of Bhutan.

Can Accused in the present case claim the defense of the ignorance of law?

The provisions of the Tobacco Control Act do not enquire whether the guilty person has committed the wrong intentionally, negligently or innocently. Therefore, liability under Section 51 and 52 of the Tobacco Control is absolute. Moreover, when a statute imposes liability, the presence or absence of guilty mind is irrelevant.[7]

Therefore, ignorance of law cannot be used to prove non-existence of guilty mind, and this principle is so strongly engraved in maxim ignorantia juris neminem excusat. Assumption is that, every individual has absolute responsibility to know the law. According to Salmond, “the law is in legal theory definite and knowable; it is duty of every man to know that part of it which concerns him; therefore, innocent and inevitable ignorance of the law is impossible. Men are conclusively presumed to know the law, and are dealt with as if they did know it, because, in general, they can and ought to know it.”[8]According to Austin, “…..it not frequently happens that the party is ignorant of law, and that his ignorance of the law is inevitable. But if ignorance of law were ground of exemption, the administration of justice would be arrested. For, in almost every case, ignorance of law would be alleged.”[9] Therefore, in the present case, the court was very right in not accepting the defence of the ignorance of law.

Did court do justice by sentencing Accused for three years imprisonment?

To answer this question we need to first understand the mandate of Judiciary. As per Article 21(1) the Judiciary is entrusted with duty of safeguarding, upholding, and administering Justice fairly and independently without fear, favour, or undue delay in accordance with the rule of law to inspire trust and confidence and to enhance access to Justice.[10] What does expression “…administering justice……in accordance with the rule of law” mean? Does it mean justice according to law, or justice in higher degree? The outcome would basically depend on how we define the expression “rule of law”.

If we define “rule of law” to mean “according to law”, then the duty of judiciary is to administer justice as per the words of law. Therefore, courts can give to people not what can be called justice in true sense but merely justice according to law. In other words, the administration of justice according to law is commonly taken to imply recognition of fixed rules.[11] For instance, a person may have actually committed a murder. He may confess his guilt before a police officer who is an honest man. However, he does not make a confession before a judge. He cannot be convicted on the basis of his confession before the police officer. Therefore, courts have no authority to correct defective laws. If law is defective, it is duty of people to demand from their legislators to alter the same. However, so long as a particular law is on the statute book, the same has to be enforced unmindful of the consequences. Judges are expected to give justice according to the law of the country and not according to what they consider to be just under the circumstances.[12]

Therefore, as per Section 52, any person found smuggling tobacco or tobacco products shall be guilty of an offence of smuggling and shall be punishable with minimum sentence of felony of fourth degree. From the expression “…shall be punishable with minimum sentence of felony of fourth degree” we can construe that court have a discretionary power to the extent of imposing sentence which is higher in degree than that of fourth degree. However, from the same expression, we can construe that hands of court is tightened in the sense that somehow court has to impose minimum sentence of felony of fourth degree. If court decides to impose sentence lower than that of the felony of fourth degree it is not doing justice according to law though it may be doing justice in strict sense.

As per felony of fourth degree, a person is liable to punished with minimum imprisonment of three years and maximum of five years. In this case, the judge can decide whether the circumstances of the crime merit punishment at the high end of the range, at the low end, or somewhere in the middle. Mandatory sentencing laws, on the other hand, are inflexible from start to finish; the convict must serve each and every day of the prescribed sentence. The judge cannot consider the criminal’s intentions or life circumstances. Mandatory sentencing allows no room for the case-by-case discretion. By taking the judging function out of the judge’s hands, mandatory sentencing reduces the judge to a mere clerk. Similarly, in present case, judge was reduced to a mere clerkship. But by imposing minimum sentencing available, court has done all possible justice according to law. As already mentioned earlier, its hands are being tightened by requirement to impose convict with minimum of three years imprisonment. There is nothing Judiciary can do. Moreover, it has no authority to correct defective law, as courts are mandated to administer justice according to law and not according to their conscience and belief.

But what if “rule of law” is defined to mean something higher in degree? Let us say, “Rule of law” is defined to mean “fairness”, can court then decide otherwise? Disproportionate punishment is unfair and unreasonable. It is true that traditionally, throughout the world, governments used harsh punishment to prevent the crime. However, the actual punishment delivered to any individual did not exceed the “eye for an eye” limit. The “eye for an eye” principle forbids us from visiting excessive severity upon an individual. Imposing excessive punishment was practice of primitive societies. However, it seems that the Tobacco Control Act has once again given birth to such practices. However, punishment which is not proportionate to severity of crime is condemned by human rights advocates. Similarly, excessive punishment violates fundamental rights not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[13] Therefore, law which violates principle of proportionality or “eye for an eye” limit may be ultra vires Constitution. Therefore, mandatory minimum punishment of felony of fourth degree for smuggling tobacco products, an act which visits no harm upon any other person is disproportionate.

Similarly, law which imposes disproportionate punishment cannot be said to be fair, just and reasonable, hence, violating person’s fundamental right to life to live with human dignity under Article 7(1) of the Constitution of the Kingdom of Bhutan. Therefore, if the Constitutional validity of the Tobacco Control Act is challenged, Higher Courts (but not by lower courts for want of jurisdiction under Article 7(23)) may strike down the Section 51 and 52 of the Act on the grounds of disproportionality and unreasonability. In other words, law that is unreasonable and disproportionate violates the substantive due process of law. As per substantive due process of law, the Court should not merely decide on whether the procedure laid down by a law for depriving right is reasonable, fair and just, but it should also examine whether the substance of law itself is fair, just and reasonable or not.[14] Therefore, it is essential that both the substance and procedure prescribed by law for depriving a person of his rights must conform to the norms of justice and fair play. Finally, if “rule of law” is defined in wider sense, then judiciary can administer justice not merely in accordance with law but also according to the principle of reasonableness and fairness.

Legislature has all legislative powers; the powers to enact and amend laws whenever required. However, that doesn’t mean that they can enact unreasonable and disproportionate laws. They should be mindful of law that they enact, as Shakespeare in Measure for Measure wrote, “O it is excellent to have giant’s strength, but it is tyrannous to use it like a giant.” Similarly, enactment of law which is unreasonable and devoid of fairness would be against the basic purpose and spirit of the Constitution that forbid or limit all kinds of arbitrariness. Therefore, legislature must while making law, ensure that it enacts laws which are reasonable, just and fair because, lawmaker who devises laws of excessive severity commits injustice.

[1] http://en.wikipedia.org/wiki/Statutory_interpretation#cite_ref-2

[2] CIT v. S. Teja Singh, AIR 1959 SC 666, p. 668.

[3] In re MCI Communications, 460 Mich 396,415 (1999)

[4] ‘Leges posteriores priores contrarias abrogant’ http://statutoryinterpretation.blogspot.com/2007/10/leges-posteriores-priores-contrarias.html Accessed 2 November 2010.

[5] ‘Generalia specialibus non derogant http://interpretationofstatutes.blogspot.com/2010/07/generalia-specialibus-non-derogant_15.html. Accessed 3 November 2010.

[6] Wayne County v Wayne County Retirement Comm’n., 267 Mich App 230, 244 (2005)

[7]VD Mahajan, “Jurisprudence and Legal Theory” at p.432

[8] Ibid at pp.Page 423-424

[9] Ibid at p.424

[10] Article 21(1) of the Constitution of Bhutan

[11] VD Mahajan at p.133

[12] Ibid.

[13]Article 7(17) of the Constitution of Bhutan.

[14] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others.

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