The Supreme Court, through an order on July 24, repealed section 199.8 (A.B) of the amended Civil and Criminal Procedure Code of Bhutan 2011 saying it contravened the Constitution.
Section 199.8 (A) of the amended CCPC 2011 specifies non-bailable offence where sub-section (b) of the clause states that the court shall not grant bail to a person who has been charged with an offence of or above second-degree felony.
The SC, through the order signed by Chief Justice Tshering Wangchuk, ruled that the section contravenes section 16 of Article 7 of the Constitution, which states, “A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law”.
It stated that it considers the section null and void in accordance with section 10 of Article 1 of the Constitution, which states that the provisions of any law, whether made before or after the adoption of the Constitution, which are inconsistent with the Constitution, shall be null and void.
The order, many legal practitioners say, has made all offences bailable. Many questions if the SC has the authority to repeal the clause as the legislative power rests with the Parliament. Some even accused SC of usurpation of legislative power.
While SC did not respond to Kuensel’s request for an interview and judiciary officials said they do not want to comment on the issue, legal practitioners say that there is an unwritten law within the judiciary that considers SC as the ultimate interpreter of law, but any law that is inconsistent with the Constitution should go through a judicial review, meaning SC could declare a provision of the law unconstitutional through judgements and the Parliament would amend it.
“In this case, like in many other SC orders, the Chief Justice alters, repeals or considers certain provision null and void based on appeals submitted to him,” a source, who shared the SC order with Kuensel said.
According to the order, three women from Paro appealed to the SC on July 18, requesting bail for their husbands, who were detained by police in a gold smuggling case.
The women justified that no prime facia was established that the offences their husbands’ were charged were second or third-degree felony. They also reasoned that they needed their husbands home since they depend on agricultural works and the husbands are the main bread earners.
It was learnt that while two men were charged for offences graded second degree felony, one was denied bail since he violated the bail condition set for him that mandated him not to involve in smuggling cases while on bail.
Some legal practitioners alleged that if SC has to declare any provisions of the law unconstitutional, a quorum of judges should be met and all judges should sign the order.
Sources said that section 199.8 was inserted in the amended CCPC 2011 since the CCPC enacted in 2001 did not specify bail and non-bailable offences. “Many judges confused bail and non-bailable provisions with compoundable and non-compoundable sentencing and Parliament had to insert the provision,” a source, on the condition of anonymity said.
The source said that bail is a fundamental right and everyone should avail bail unless the offence he or she is accused with is not against the security and the sovereignty of the country. He said that the SC should declare the provision unconstitutional and leave it to the Parliament to amend it. “The SC issued an order last year that cannibalism should be allowed if it is a cultural practice and inserted a clause on it too without the provision being discussed in the Parliament.”
Another source alleged that courts are also in dilemma with the many executive orders SC issued in recent years. “Lawyers appearing before court defending litigants question the validity and legality of the orders and courts have no answers.”
The source said that courts appear confused whether to go by the law passed by the Parliament or the SC order whose legality is in question. “Someone needs to clear this mess, as it would create more provision.”