Bhutan
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Background and Legal System
Bhutan is a democratic constitutional monarchy with King Jigme Namgyel Wangchuck as head of state and Prime Minister H.E. Dasho Tshering Tobgay as head of government.
The law in Bhutan is a hybrid system of civil law and common law as it is derived from legislation, treaties, and case law.
The supreme law is the Constitution of 2008. Prior to this Constitution, it came from the fiat of the King of Bhutan and was heavily influenced by English common law and the theocratic Tsa Yig legal code.
Bhutanese law is premised on promoting Gross National Happiness (GNH) that is considered to be more important than their GDP. These laws are passed through a bicameral process requiring the assent of the National Assembly and the National Council of the Parliament and the assent of the King. The final authority on the law remains the Supreme Court. Laws enacted prior to the Constitution remain intact as they do not conflict with it. Furthermore, the law includes regulations and procedural frameworks from agencies of the Ministries with the Cabinet and independent Commissions. Overall, these laws are enforced by the national Police.
Legal Aid
Section 34 of Chapter 5 of the Civil and Criminal Procedure Code of Bhutan 2001 (CCPC) states that ‘only an indigent Accused shall have legal aid provided for one’s defence where the interest of justice so requires’. The legal aid services will be provided by the Legal Aid Centre at Bhutan National Legal Institute (BNLI) in the Supreme Court complex at Hejo. It will include legal advice, assistance, and representation to the indigent person at the expense of the State. Legal aid will be provided by private lawyers and paralegals registered with the Bar Council of Bhutan.
There are currently 119 private lawyers registered with the Bar Council. The Bar Council will also assist the Center in monitoring the quality of the service and taking necessary action when service providers violate their duties.
First, an indigent person is one who cannot provide the necessities of life (food, clothing, shelter) for themselves and one without sufficient means to afford a lawyer. The applicant must qualify for means and merits tests for both criminal and civil cases. These may be directly submitted to the Centre or through relevant institutions. Under the means test, the test will consider household income and disposable capital to determine the applicant’s financial capacity. Under the merits test, the Centre will assess the applicant’s case to decipher the legal problem and assess whether the Centre will grant aid for such an issue.
Second, the services included in the legal aid depends on the type of case (civil/criminal). In civil cases, legal aid services will only include legal advice and assistance. Representation will be granted only if required. In criminal cases, all three types of legal services will be available. However, currently legal aid in criminal cases will only be available to indigent accused charged with offences that are felony in nature. Additionally, the Centre will also provide services to victims and vulnerable persons and offer legal information and education.
Third, it is important to note that children in conflict with the law and persons with permanent physical or mental and social disabilities are provided legal aid and assistance regardless of their financial capacity, when the interest of justice so requires.
Source of Defendants Rights
The supreme law is the Constitution of the Kingdom of Bhutan 2008
The other main sources of rights are:
Rights of the Accused
Chapter 29 of the CCPC outlines Bhutan’s law on searches by warrant.
Section 168 states that a Court may issue a search warrant upon probable cause of criminal offence to conduct a search for criminal evidence. The police requesting the search warrant would have to present to the Court the name and address of the accused, the suspected criminal offence, the place of search and the facts establishing probable cause for the search. Section 169 requires all search warrants to be executed within 21 days of their issuance, unless an extension has been granted.
As per Section 171 of the CCPC, A search has to be made in the presence of a Chimi/Gup/Chipon/member of Dzongkhag and Geog Yargye Tshokchung/witness. The police executing the warrant would announce that they are police and show the search warrant. If there is a danger of destruction of evidence and/or distances from the Court to the places to be searched are substantial, the police can conduct the search without the search warrant. Furthermore, they may use ‘reasonable force’ to break into the premises if the police ‘is refused entry after identification as an agent of the law’. They are allowed to frisk a person on the scene if they appear to be dangerous. This discretion extends to arresting a person on the premises if there is ‘reasonable cause’. Additionally, if it is necessary for a woman to be searched, ‘another woman shall make the search with strict regard to decency’.
According to Chapter 30 of the CCPC, the scope of a search warrant can extend to an apartment, a person, and/or a vehicle, aircraft, vessel or conveyance. Different rules apply accordingly.
Furthermore, there are certain grounds outlined in Chapter 31 of the CCPC that allow the police to conduct searches without a warrant. If the police arrest a suspect without a warrant, they have the right to search the area under the suspect’s immediate control/possession. They can ‘seize’ any weapon, contraband or any other evidence of an offence carried on the person. Moreover, if the police are in hot pursuit of a felony suspect and have reason to believe that a suspect entered a private premises, they have the right to enter the premises to search for them. They can ‘seize’ items and evidence of criminal behaviour during this search as well. Lastly, if the third party consents to a search, they are allowed to search without a warrant.
In terms of seizure of articles, Section 180 of Chapter 32 of the CCPC states that ‘a police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances, which create suspicion of the commission of an offence’.
The police can prepare a list of articles taken into possession and provide it to the owner or person in occupation of the premises. If an article has to be immediately destroyed for public safety, the police officer is lawfully allowed to destroy it. If an article is irrelevant to the case, then it should be returned to the owner without delay.
Section 20 of Article 7 of the Constitution states that a person shall not be subjected to arbitrary arrest or detention.
In terms of the physical conditions of the detention centres, it is noted that there are no separate prisons designated for women. Prisoners who have served 75% of their sentence and exhibited good conduct are eligible for a transfer to the Open-Air Prison system (OAP). One of the OAPs is for women and their children who are permitted to live there up to the age of nine. This system allows the prisoners more freedom than traditional prisons, allowing them to earn money by working in the community, have greater access to family members, move freely in the vicinity of the facility and use telephones.
In terms of arbitrary detention, the police may arrest a person if they have ‘probable cause’ or a ‘court-issued warrant’. As aforementioned, police may ‘stop and frisk’ only when they believe a crime has been committed. Arresting authorities must issue an immediate statement of charges and engage in reasonable efforts to inform the family of the accused. While there are some dedicated pretrial detention facilities for children, the UN Working Group identified that there were no dedicated pre-trial detention facilities for adults. Police held pretrial detainees in police stations where pretrial detainees comprised the largest number of persons being held.
The law requires that the authorities bring the arrested person before a court within 24 hours, exclusive of travel time from the place of arrest.
Furthermore, the police may hold remanded suspects for 10 days pending investigation. This can be extended up to 49 days. In cases of ‘heinous crimes’, it can be extended to 108 days if the investigating officer shows adequate grounds. Nonetheless, the law prohibits pre-trial detention beyond 118 days. It is to be noted that the law provides for compensation to those detained or subjected to unlawful detention but later acquitted.
Section 17 of Article 7 of the Constitution confers the right that a person shall not be subjected to torture or to cruel, inhumane or degrading treatment or punishment.
Section 21 of Article 9 of the Constitution states that the State shall provide free access to basic public health services in both modern and traditional medicines.
Arresting authorities must issue an immediate statement of charges and engage in reasonable efforts to inform the family of the accused.
The law requires authorities to bring an arrested person before a court within 24 hours, exclusive of travel time from the place of arrest.
Section 16 of Article 7 of the Constitution confers the right to presumption of innocence until proven guilty in accordance with the law.
Section 21 of Article 7 of the Constitution confers the right to consult and be represented by an attorney (‘Bhutanese Jabmi’) of his or her choice.
First, in the case of Criminal Offences, the case will be prosecuted by Royal Bhutan Police if the offence charged is a petty misdemeanour (less than one-year imprisonment) and the rest are prosecuted by the Office of the Attorney General.
Therefore, in the case of criminal cases, one can hire defence counsel (Jabmi) to defend the accused.
Additionally, the CCPC allows the litigant themselves to initiate suits as well as his or her joint family or Jabmi of his/her choice.
The right to liberty has been protected by Bhutan in laws that require the presentation of arrested individuals before a judge within 24 hours, sentencing laws, and expeditious trials.
Section 15 of Article 7 of the Constitution states that ‘all persons are equal before the law’, and ‘are entitled to equal and effective protection of the law’ and shall ‘not be discriminated against on the grounds of race, sex, language, religion, politics, or other status.’
Section 186.1 of the CCPC confers discretion upon the court to admit bail in lieu of detention ‘depending on the nature of the crime’.
Section 199.2 states that the Court, in determining bail, must consider the severity of charges, past criminal record, likelihood of flight, potential threat posed to society, age and physical/mental health condition, and views of the victim or aggrieved person.
However, the court is prohibited from granting bail if the accused has been charged with an offence ‘against the security and sovereignty of the country or an offence of or above felony of the second degree’ (Section 199.8A CCPC).
Moreover, if the defendant is indigent or the charge is not a serious threat to public safety, a Court may release the defendant without posting a bond based on a promise to return and other conditions set by the Court.
While non-retroactivity is a universal standard, Bhutan has not enforced a law of ex post facto prosecution.
Section 68 of the Penal Code of Bhutan states that if the conduct of a defendant leads to the commission of more than one offence, the defendant shall be prosecuted for each offence in a single trial and shall not be subject to a later trial for an offence arising out of the same criminal conduct.
Accordingly, Section 69 of the Penal Code states that a defendant shall not be convicted for more than one offence if one offence is included in the compoundable offence or consists of a conspiracy or other form of preparation to commit the other offence.
This is further affirmed by Section 206 of the CCPC that states that a person shall not be subject to the same offence to be twice put in jeopardy of life or limb by law.
Section 4 of Chapter 1 of the CCPC states that every person is entitled to a ‘fair and public trial by an independent and impartial Court in any proceeding’.
The Court may in its discretion exclude the press and the public only if there is a compelling need to do so in the interest of public order, national security, the privacy of parties, protecting the privacy of a juvenile and any other situation if publicity would seriously prejudice the interests of justice.
The law requires that defendants must receive fair, speedy, and public trials, and the government generally respected this right.
It must be noted that there are no jury trials available.
Furthermore, a preliminary hearing must be held within 10 days of registration of a criminal matter. Before registering any plea, a court must determine whether the accused is mentally sound and understands the consequences of entering a plea.
As aforementioned, defendants benefit from a presumption of innocence, have the right to confront witnesses, and cannot be compelled to testify. In these cases, conviction requires proof beyond a reasonable doubt.
Additionally, there is a standing rule to clear all cases within a year of filing. In practice, most trials were completed within a year of starting proceedings.
The law does not require that defendants receive the free assistance of an interpreter. However, in practice, interpreters are provided free of charge or the proceedings are conducted in a language the defendant understands.
The law expressly prohibits pretrial detention beyond 108 days. Therefore, detainees may pursue a writ of habeas corpus to obtain a court-ordered release.
This is further affirmed by Section 7 of Chapter 1 of the CCPC, which states that ‘a member of a family may, on behalf of a person imprisoned on a criminal conviction or a person detained, request the Supreme/High Court to issue an order of Habeas Corpus for the production of the person before the Supreme/High Court.’
Section 18 of Article 7 of the Constitution states that a person shall not be subjected to capital punishment.
Section 23 of Article 7 of the Constitution allows all persons in Bhutan the right to initiate appropriate proceedings in the Supreme Court or the High Court for the enforcement of the rights conferred by Article 7 of the Constitution, subject to restrictions in Section 22 of the Article and procedures prescribed by the law.
Rights of Counsel
The defendant has the right to plead or defend themselves in person and their right to a speedy trial does not limit their time to prepare a defence. In most civil cases, the plaintiffs and defendants defend themselves.
Contrastingly, in criminal cases, defendants may choose representation from a list of licensed advocates.
Additionally, the defendant has the right to confidential communication with their representation. Section 33 of Chapter 4 of 2003 Jabmi Act states that all organisations shall recognize and respect any communications and consultations between Jabmis and their clients within their professional relationship, which are deemed confidential.
Furthermore, under Section 22 of Article 7 of the Constitution, all rights that are conferred under Article 7 can be reasonably restricted by the law when it concerns interests of sovereignty, peace, stability, friendly relations, incitement to an offence on the grounds of race, sex, language, religion or region, and the rights and freedoms of others.
Means of Protecting and Enforcing Rights
Contempt:
Chapter 16 of the CCPC outlines information with respect to contempt.
A person showing disrespect to the Court during proceedings can be subjected to criminal or civil sanctions in accordance with the laws of contempt.
Disrespect may take the form of interference with a case, failing to comply with judicial orders or obstructing the course of justice.
Court Procedures
A preliminary hearing allows the Court to entertain challenges to pleadings based on cause, procedure, and jurisdiction and clarify substantive and procedural legal issues.
Section 190 of the CCPC states that the Court shall conduct a preliminary hearing of a case within ten days of registering it in the Registry of the Court.
Then, the Court will determine whether sufficient cause exists for criminal prosecution and if so, whether the suspect should be detained or released on bail. During this hearing, the suspect shall be asked for their pleading (guilty or not guilty or Nolo Contendere).
Furthermore, if a police investigation cannot be completed in time to enable a preliminary hearing, the police shall produce the accused before the Court. The Court can then authorise detention for an additional period not exceeding 49 days if satisfied that adequate grounds exist or 108 days where the ‘investigation relates to a heinous crime’ (Section 191 of the CCPC).
Additionally, it is to be noted that for every distinct offence, there shall be a separate charge presented in the preliminary hearing.
The preliminary step before entering a plea is determining whether the defendant appears mentally competent and understands the nature of the charge, the mandatory minimum and maximum penalties provided by the law, that the Court may order the defendant to make restitution to any victim of the offence and that if the defendant accepts a plea of guilty forfeits the right to a trial (Section 195 of CCPC).
If the defendant pleads guilty, the Court may ask to ‘furnish an explanation’. If satisfied with the pleading, the Court may convict them and pass sentence in accordance with the law.
If the defendant pleads Nolo Contendere, it shall be accepted by the Court only after ‘due consideration of the views of the parties and the interest of the public in the effective administration of justice’. If accepted, the Court can proceed to provide judgment and sentencing.
If the defendant pleads not guilty to one or more of the charges, the Court shall set a date for the trial. This date must be set in a manner that provides sufficient time to prepare the prosecution and defence adequately.
According to Section 44 of the CCPC, the party may obtain discovery regarding any matter, not privileged, that is relevant to a specific claim of defence in an action.
The party requesting discovery shall show both need and that refusal to allow discovery would prejudice or cause extreme hardship to them.
Discovery will not be allowed if the suit has not been legally initiated, is unreasonably duplicative, the information can be obtained through more convenient, there are less burdensome and less expensive sources, it is irrelevant information, it is to harass or embarrass a party or a witness, it is privileged information as per the Code, it is to protect the witness in a criminal trial and/or against the interest of national security (Section 45 of the CCPC).
According to Chapter 43 of the CCPC, sentencing may only be passed where guilt has been proven beyond a reasonable doubt to the full satisfaction of the Court.
A defendant may be imprisoned, released on probation, or fined or ordered to pay compensation or damages and make restitution to the victim or their legal heir.
Section 18 of Article 7 of the Constitution states that a person shall not be subjected to capital punishment. The Court may also decree a forfeiture of property/judicial sale/cancellation of licence/financial penalty/impose any other penalty deemed fit.
Furthermore, the Court may direct that any sentence of imprisonment shall run concurrently or consecutively with the sentences awarded in the same trial or already undergoing for another offence.
Moreover, if the defendant has been previously detained in any prison following their arrest for the crime for which a sentence was prescribed, such period of detention shall be deducted from the term of their sentence (Section 211 of the CCPC).
According to Chapter 17 of the CCPC, a party to a case may file an appeal to a higher Court against a judgment of the subordinate Court.
The Appellate Court shall determine whether there was an error and whether such error warrants either a remand or full or partial reversal.
It is to be noted that the Party cannot introduce fresh evidence on appeal or rely on evidence not introduced during the proceedings of the lower Court.
The Appellate Court may dismiss the appeal, reverse all or part of the judgment, remand the case to the lower Court with instructions, order a new proceeding or charge reasonable costs to be paid by the party submitting the appeal if the appeal is dismissed.
Any party having fully exhausted the judicial appeal process and still aggrieved by the decision can appeal to His Majesty the Druk Gyalpo.
Rights in Prison
The Immigration Act of the Kingdom of Bhutan 2007.
First, foreign nationals can file an appeal in Bhutan. However, they must abide by Bhutanese laws throughout the process.
Second, Bhutan has reportedly no immigration detention centres and few cases of people being placed in detention for immigration reasons.
Third, an immigration officer may require or obtain from a foreigner who is arrested, detained or subjected to a removal order, any evidence such as photographic, fingerprint or otherwise that may be used to establish his identity in compliance with this Act.
- Women:
Refer to Section 1 on the ‘Right Against Unlawful Detention’.
- Juveniles:
Bhutan’s domestic laws on juveniles complies with the Convention on the Rights of Child and international and regional instruments regarding child justice.
They require the State to respect and protect all children from ‘any forms of discrimination’ and exploitation.
Article 9 of Section 18 of the Constitution requires the State to take appropriate measures to ensure that children are protected against any form of discrimination.
The Child Care and Protection Act of Bhutan 2011 is the primary legislation that protects the rights of a child in Bhutan.
br> Furthermore, under the PCB, a child who is 12 years or below is not liable for any offence. If a child is above 12 years, the court is required to sentence to a minimum of half of the prescribed sentence. It can consider the availability of other measures aside from imprisonment.
Separate detention centres for juveniles are present in Thimphu, Phuntsholing, and Paro.
If convicted, the court will send the children to Youth Development and Rehabilitation Centres (YDRC). This allows them to continue their education and participate in rehabilitative methods like group therapy, family counselling, and drug abuse treatment programs. They are also allowed visits from friends and family.
On a procedural note, the CCPC requires the Court to exclude the public from trial to protect the child’s privacy.
There are also Diversion Guidelines for Child in Conflict with Law 2019 and the Standard Operation Procedure (SOP) that is an important guide for the police, probation officers, facilitators, prosecutors and the court in streamlining child-friendly procedures and rehabilitative programs, enhancing collaboration with key stakeholders in administering child justice, and specifying clear roles to the key agencies involved.
- LGBTQ Prisoners:
The law does not criminalise consensual same-sex sexual conduct.
However, while the constitution provides equal protection and application of rights, it does not explicitly protect individuals from discrimination based on their sexual orientation, gender identity, or expression or sex characteristics. This lack of legal gender framework renders it difficult for transgender persons to obtain government identity documents, obtain gender-affirming care or marry. - Mentally Ill Prisoners:
Currently, Bhutan does not have any mental health legislation to protect the rights of people with mental illnesses.
It does not have any legal protections against unlawful institutionalisation, coercive medication and therapies, and inappropriate detentions for psychiatric evaluations in the absence of psychotic symptoms.
Treatment including the supply of psychotropic drugs are provided freely by the government. As a result, only a few are brought from the criminal justice system or from prison to be admitted to hospitals.
