Kasho from HM 4th Druk Gyalpo to promote our National Language: Dzongkha

Kasho from HM 4th Druk Gyalpo to promote our National Language: Dzongkha

Gearing for land of Opportunity- The United States of America

Gearing for land of Opportunity- The United States of America 

Millions of people particularly from the developing country including thousands of Bhutanese long to travel to this land. However, due to lack of proper information, while many don’t know how to apply, some got scammed in the name of obtaining visa. Therefore, I am sharing what I knew about the how to apply for US Visa and how to travel to the United States with appropriate links and samples of the documents I have submitted to the US Embassy to obtain  visa and also other necessary information including travel and residing in the United States. 

Who can travel to the United States 

How to obtain VISA 

Since, obtaining VISA is the most important step, I would be discussing  the visa process and in detail. 

What are different types of VISA  and how much each visa cost*** 

These are the types of VISA to the US 

Business/Tourist Visa

Work Visa

Student Visa 

Exchange Visa

Transit/Ship Crew Visa

Religious Worker Visa 

Domestic Employee Visa 

Journalist and Media Visa 

Among these many VISA, generally Bhutanese people would be applying the following Visa 

1. Business/Tourist Visa (B)
2. Exchange Visa (J)
3. Student Visa (F)

What types of VISA permit the legal work 

Obviously the Work Visa would be permitted to work. But besides work visa, other visas like Exchange Visa (J Visa) or Student Visa (F Visa) does also permit an individual work under certain conditions.  For example, J and F Visa permits the work within the campus called On campus work for about 20 hours in a week and also may be permitted off campus under certain conditions. However, the dependents are normally not permitted to work. The actual visa holders get F1 for student and J1 for exchange programs and their dependents hold F2 and J2 respectively. 

Step I: Documents to be kept ready 
Before, you apply for Visa online, I found that following documents and information are necessary.

1. Passport 
2. CID
3. Details of Spouse and children 
4. Details of Parents 
5. Details of Addresses 
6. Health records if any 

Online application 

The US Visa requires two steps to complete the application online, the DS-160 Form fill up and Appointment (interview and biometric) 

Step II: Filling up DS-160 
The first step in the online application is to fill up the DS-160 Form 
What is DS-160 Form 

How to fill up DS-160 Form
First click here. 
On click, one should be able to view as shown below




Click on this option and select INDIA, New Delhi




Then go to the Language, Select English from this option

After selecting the English as Language, click on the start an application 

Step III: Making an appointment 

a. How to make appointment 

b. Payment of Fees (SEVIS and VISA Fee) 

c: What to get printed for the VISA Interview 

Step IV: VISA Process in New Delhi 

a. Biometric Process 

b. Interview 

c. See the progress of VISA 

d. Collection of Passport 

Travel to the US 

Gearing for land of Opportunity- The United States of America

Gearing for land of Opportunity- The United States of America 

Millions of people particularly from the developing country including thousands of Bhutanese long to travel to this land. However, due to lack of proper information, while many don’t know how to apply, some got scammed in the name of obtaining visa. Therefore, I am sharing what I knew about the how to apply for US Visa and how to travel to the United States with appropriate links and samples of the documents I have submitted to the US Embassy to obtain  visa and also other necessary information including travel and residing in the United States. 

Who can travel to the United States 

How to obtain VISA 

Since, obtaining VISA is the most important step, I would be discussing  the visa process and in detail. 

What are different types of VISA  and how much each visa cost*** 

These are the types of VISA to the US 

Business/Tourist Visa

Work Visa

Student Visa 

Exchange Visa

Transit/Ship Crew Visa

Religious Worker Visa 

Domestic Employee Visa 

Journalist and Media Visa 

Among these many VISA, generally Bhutanese people would be applying the following Visa 

1. Business/Tourist Visa (B)
2. Exchange Visa (J)
3. Student Visa (F)

What types of VISA permit the legal work 

Obviously the Work Visa would be permitted to work. But besides work visa, other visas like Exchange Visa (J Visa) or Student Visa (F Visa) does also permit an individual work under certain conditions.  For example, J and F Visa permits the work within the campus called On campus work for about 20 hours in a week and also may be permitted off campus under certain conditions. However, the dependents are normally not permitted to work. The actual visa holders get F1 for student and J1 for exchange programs and their dependents hold F2 and J2 respectively. 

Step I: Documents to be kept ready 
Before, you apply for Visa online, I found that following documents and information are necessary.

1. Passport 
2. CID
3. Details of Spouse and children 
4. Details of Parents 
5. Details of Addresses 
6. Health records if any 

Online application 

The US Visa requires two steps to complete the application online, the DS-160 Form fill up and Appointment (interview and biometric) 

Step II: Filling up DS-160 
The first step in the online application is to fill up the DS-160 Form 
What is DS-160 Form 

How to fill up DS-160 Form
First click here. 
On click, one should be able to view as shown below




Click on this option and select INDIA, New Delhi




Then go to the Language, Select English from this option

After selecting the English as Language, click on the start an application 

Step III: Making an appointment 

a. How to make appointment 

b. Payment of Fees (SEVIS and VISA Fee) 

c: What to get printed for the VISA Interview 

Step IV: VISA Process in New Delhi 

a. Biometric Process 

b. Interview 

c. See the progress of VISA 

d. Collection of Passport 

Travel to the US 

In recent times, media have started publishing photo(s) and details of people suspected or accused of crime resulting in naming and shaming preceding a judicial process. Such trend is worrying and unprofessional as it violates not only the fundamental rights but also legal rights. Even more worrying is the publication of only a selected few that could construe as bias reporting and discriminatory undermining the basic human rights of these people. No freedom is absolute and freedom of media is not an exception. Media must enjoy the right to exercise the democratic culture as Bhutan embarks on the journey of democracy. However, such democratic culture must stay within the limits of the Constitution. Fountain of justice is the prerogative of judiciary and not Media. Therefore, media has neither constitutional nor legal right to punish any person including naming and shaming. With the adoption of the constitution of country, Bhutan’s criminal justice system rests on Article 7 of the Constitution, the Fundamental Rights. This means that every person has right to life, liberty and may be taken only with due process of law. He or she also has right to security, equality before law, equal protection of the law, protection against discrimination, presumption of innocence until proven guilty, protection against arbitrary or unlawful interference with his privacy, home or correspondence and unlawful attack on his honour and reputation. Due process of law and fair trial are cardinal rules of criminal justice. Thus, media by naming and shaming of any person without due process of law, no matter how heinous the crime that person might have committed or suspected to have committed or accused of committing would tantamount to violation of his numerous fundamental rights under the Constitution. It could cause an accused or suspect and his or her family members an irreparable damage to their reputation, unimaginable mental trauma and stigmatization in the society particularly a small society like ours. Researches around the globe revealed that, the media trials tend to influence judges and subconsciously a pressure is created to affect the sentencing. Courts have stated that, in the eyes of public, media trial provokes public hysteria akin to the extent of lynching mob making the fair trial nearly impossible and regardless of the result of the trial, in public perception, the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny. Thus, it is now a universal settled law that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings. Besides the Constitutional Rights, any suspect or accused also enjoys numerous legal rights. Section 96.2 of the Civil and Criminal Procedure of Bhutan states, “Finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the Court has established a proof beyond reasonable doubt.” And Section 207 of the Penal Code of Bhutan requires that a person can be punished only if the elements of the charge where guilt beyond reasonable doubt have been proven to full satisfaction of the court. By Section 6 of the Penal Code of Bhutan, a person can be convicted of a criminal offence and shall not be sentenced otherwise than accordance with this Penal Code. Thus, where does the media derive jurisdiction of punishing any suspect or accused through naming and shaming even before their trial begins. The Media must remember that for any suspect or accused to be punished, the prosecution has duty not primarily to convict, but to seek justice proving the accused beyond reasonable doubt while the accused must be accorded to defend any accusations by all lawful, fair and honorable means, so as not to deprive his or her of life or liberty, through due process of the law. The preamble of the Penal Code states that the law is enacted to “perpetuate good and chaste actions, correct those, who have gone wrong,” guilty not to escape and innocent not to suffer and to secure justice to ourselves and our posterity.” Therefore, how does the pre-trial naming and shaming by media justify such rights of the accused or suspect. Naming and shaming of suspect or accused before formal court proceedings also undermines the pre-trial as well as other rights enshrined in the Civil and Criminal Procedure Code including determination of sufficient cause of accusations made, whether to plead guilty or not (Nolo Contendere). The Code of Ethics for Journalists framed under Section 26(d) of the Bhutan Information, Communications and Media Act prohibits the journalist from reporting judicial proceedings that might affect or alter the trial unfairly or publish anything that is defamatory of any person or organization. The Code also requires the journalist not to identify relatives or friends of any person accused or convicted of crime, or imply guilt by association in relation to such relatives or friends, unless there are compelling reasons, such as relevance to the story being published, or evidence that might reasonably point to such guilt. The Code further mandates that the journalist stand by the principle that all persons are equal before law. It is even more worrying when the media try to name and shame few selected as in the recent cases, the principle of all persons to be treated equal before law and equal protection of law is completely ignored. In fact, such reporting would warrant a suit against such reporter or media for the damage the suspect or accused and his family suffered in the society. In a nutshell, media must remember that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.

This Article was published in Kuensel as Opinion 

In recent times, media have started publishing photo(s) and details of people suspected or accused of crime resulting in naming and shaming preceding a judicial process. Such trend is worrying and unprofessional as it violates not only the fundamental rights
but also legal rights. Even more worrying is the publication of only a selected few that could construe as bias reporting and discriminatory undermining the basic human rights of these people.

No freedom is absolute and freedom of media is not an exception. Media must enjoy the right to exercise the democratic culture as Bhutan embarks on the journey of democracy. However, such democratic culture must stay within the limits of the Constitution. Fountain of justice is the prerogative of judiciary and not Media. Therefore, media has neither constitutional nor legal right to punish any person including naming and shaming.

With the adoption of the constitution of country, Bhutan’s criminal justice system rests on Article 7 of the Constitution, the Fundamental Rights. This means that every person has right to life, liberty and may be taken only with due process of law. He or she also has right to security, equality before law, equal protection of the law, protection against discrimination, presumption of innocence until proven guilty, protection against arbitrary or unlawful interference with his privacy, home or correspondence and unlawful attack on his honour and reputation. Due process of law and fair trial are cardinal rules of criminal justice. Thus, media by naming and shaming of any person without due process of law, no matter how heinous the crime that person might have committed or suspected to have committed or accused of committing would tantamount to violation of his numerous fundamental rights under the Constitution. It could cause an accused or suspect and his or her family members an irreparable damage to their reputation, unimaginable mental trauma and stigmatization in the society particularly a small society like ours.

Researches around the globe revealed that, the media trials tend to influence judges and subconsciously a pressure is created to affect the sentencing. Courts have stated that, in the eyes of public, media trial provokes public hysteria akin to the extent of lynching mob making the fair trial nearly impossible and regardless of the result of the trial, in public perception, the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny. Thus, it is now a universal settled law that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings.

Besides the Constitutional Rights, any suspect or accused also enjoys numerous legal rights. Section 96.2 of the Civil and Criminal Procedure of Bhutan states, “Finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the Court has established a proof beyond reasonable doubt.” And Section 207 of the Penal Code of Bhutan requires that a person can be punished only if the elements of the charge where guilt beyond reasonable doubt have been proven to full satisfaction of the court. By Section 6 of the Penal Code of Bhutan, a person can be convicted of a criminal offence and shall not be sentenced otherwise than accordance with this Penal Code. Thus, where does the media derive jurisdiction of punishing any suspect or accused through naming and shaming even before their trial begins.

The Media must remember that for any suspect or accused to be punished, the prosecution has duty not primarily to convict, but to seek justice proving the accused beyond reasonable doubt while the accused must be accorded to defend any accusations by all lawful, fair and honorable means, so as not to deprive his or her of life or liberty, through due process of the law.

The preamble of the Penal Code states that the law is enacted to “perpetuate good and chaste actions, correct those, who have gone wrong,” guilty not to escape and innocent not to suffer and to secure justice to ourselves and our posterity.” Therefore, how does the pre-trial naming and shaming by media justify such rights of the accused or suspect. Naming and shaming of suspect or accused before formal court proceedings also undermines the pre-trial as well as other rights enshrined in the Civil and Criminal Procedure Code including determination of sufficient cause of accusations made, whether to plead guilty or not (Nolo Contendere).

The Code of Ethics for Journalists framed under Section 26(d) of the Bhutan Information, Communications and Media Act prohibits the journalist from reporting judicial proceedings that might affect or alter the trial unfairly or publish anything that is defamatory of any person or organization. The Code also requires the journalist not to identify relatives or friends of any person accused or convicted of crime, or imply guilt by association in relation to such relatives or friends, unless there are compelling reasons, such as relevance to the story being published, or evidence that might reasonably point to such guilt. The Code further mandates that the journalist stand by the principle that all persons are equal before law.

It is even more worrying when the media try to name and shame few selected as in the recent cases, the principle of all persons to be treated equal before law and equal protection of law is completely ignored. In fact, such reporting would warrant a suit against such reporter or media for the damage the suspect or accused and his family suffered in the society.

In a nutshell, media must remember that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.

In recent times, media have started publishing photo(s) and details of people suspected or accused of crime resulting in naming and shaming preceding a judicial process. Such trend is worrying and unprofessional as it violates not only the fundamental rights but also legal rights. Even more worrying is the publication of only a selected few that could construe as bias reporting and discriminatory undermining the basic human rights of these people. No freedom is absolute and freedom of media is not an exception. Media must enjoy the right to exercise the democratic culture as Bhutan embarks on the journey of democracy. However, such democratic culture must stay within the limits of the Constitution. Fountain of justice is the prerogative of judiciary and not Media. Therefore, media has neither constitutional nor legal right to punish any person including naming and shaming. With the adoption of the constitution of country, Bhutan’s criminal justice system rests on Article 7 of the Constitution, the Fundamental Rights. This means that every person has right to life, liberty and may be taken only with due process of law. He or she also has right to security, equality before law, equal protection of the law, protection against discrimination, presumption of innocence until proven guilty, protection against arbitrary or unlawful interference with his privacy, home or correspondence and unlawful attack on his honour and reputation. Due process of law and fair trial are cardinal rules of criminal justice. Thus, media by naming and shaming of any person without due process of law, no matter how heinous the crime that person might have committed or suspected to have committed or accused of committing would tantamount to violation of his numerous fundamental rights under the Constitution. It could cause an accused or suspect and his or her family members an irreparable damage to their reputation, unimaginable mental trauma and stigmatization in the society particularly a small society like ours. Researches around the globe revealed that, the media trials tend to influence judges and subconsciously a pressure is created to affect the sentencing. Courts have stated that, in the eyes of public, media trial provokes public hysteria akin to the extent of lynching mob making the fair trial nearly impossible and regardless of the result of the trial, in public perception, the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny. Thus, it is now a universal settled law that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings. Besides the Constitutional Rights, any suspect or accused also enjoys numerous legal rights. Section 96.2 of the Civil and Criminal Procedure of Bhutan states, “Finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the Court has established a proof beyond reasonable doubt.” And Section 207 of the Penal Code of Bhutan requires that a person can be punished only if the elements of the charge where guilt beyond reasonable doubt have been proven to full satisfaction of the court. By Section 6 of the Penal Code of Bhutan, a person can be convicted of a criminal offence and shall not be sentenced otherwise than accordance with this Penal Code. Thus, where does the media derive jurisdiction of punishing any suspect or accused through naming and shaming even before their trial begins. The Media must remember that for any suspect or accused to be punished, the prosecution has duty not primarily to convict, but to seek justice proving the accused beyond reasonable doubt while the accused must be accorded to defend any accusations by all lawful, fair and honorable means, so as not to deprive his or her of life or liberty, through due process of the law. The preamble of the Penal Code states that the law is enacted to “perpetuate good and chaste actions, correct those, who have gone wrong,” guilty not to escape and innocent not to suffer and to secure justice to ourselves and our posterity.” Therefore, how does the pre-trial naming and shaming by media justify such rights of the accused or suspect. Naming and shaming of suspect or accused before formal court proceedings also undermines the pre-trial as well as other rights enshrined in the Civil and Criminal Procedure Code including determination of sufficient cause of accusations made, whether to plead guilty or not (Nolo Contendere). The Code of Ethics for Journalists framed under Section 26(d) of the Bhutan Information, Communications and Media Act prohibits the journalist from reporting judicial proceedings that might affect or alter the trial unfairly or publish anything that is defamatory of any person or organization. The Code also requires the journalist not to identify relatives or friends of any person accused or convicted of crime, or imply guilt by association in relation to such relatives or friends, unless there are compelling reasons, such as relevance to the story being published, or evidence that might reasonably point to such guilt. The Code further mandates that the journalist stand by the principle that all persons are equal before law. It is even more worrying when the media try to name and shame few selected as in the recent cases, the principle of all persons to be treated equal before law and equal protection of law is completely ignored. In fact, such reporting would warrant a suit against such reporter or media for the damage the suspect or accused and his family suffered in the society. In a nutshell, media must remember that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.

This Article was published in Kuensel as Opinion 

In recent times, media have started publishing photo(s) and details of people suspected or accused of crime resulting in naming and shaming preceding a judicial process. Such trend is worrying and unprofessional as it violates not only the fundamental rights

Kasho (Decree) from HHS the Je Khenpo on evils of consumption of tobacco from Buddhist Perspective

Kasho (Decree) from HHS the Je Khenpo on evils of consumption of tobacco from Buddhist Perspective

Youth unemployment vs. Government policy of overseas employment

Posted on my fb on 8th May 2016

The urgency and caution: The desperation of unemployment should not be cause of our youth's future in misery and sufferings in a foreign land.

The comments by the suspended Overseas Agent, if

Photos

Photos

What constitutes defamation in the media and social media in Bhutan

This Article was Published by The Bhutanese as Opinion on 2nd November 2017

Defamation generally means the protection of an individual’s reputation or feelings from unwarranted attacks or against false statements of fact which cause damage to a reputation.

It may be libel, slander, calumny, insult, desacato or lese majeste.

The defamation may be civil tort or criminal offence and  it is a

criminal offence, according to Section 317 of Penal Code of Bhutan, if the defendant intentionally causes damage to the reputation of another person or a legal person by communicating false or distorted information about that person’s action, motive, character, or reputation’.

Thus, the prosecutor must prove these elements beyond reasonable doubt.  However, in case of civil tort, it is often a civil suit filed by the person who feels, he is defamed and seek damages as in case of recent defamation cases between DPT vs Dasho Benji or Sonam Phuntsho vs Dr. Shacha and Namgay Zam.

Often in case of civil suits, to protect free, vibrant and warranted debate or prevent harassment of each other, it may be more appropriate to create proportionate remedies rather than seeking unreasonable amount of damages while filing the suit.

Generally, whether it is a criminal or civil suit, it is considered defamation when someone makes a statement which is false, cause’s injury (his or her reputation is affected), the statement is published (whether in written or spoken) and it is not an honest mistake.  But then it is left to the judiciary to interpret these through basic principles of law, equality, reasonableness and self-conscience validated by evidences.

Every individual has right to freedom of speech, opinion and expression as provided under Article 7(2) and freedom of press, radio, television and others including electronic under Article 7(5) of the  Constitution but they must also exercise these rights and freedoms responsibly as there exists a very thin line between freedom of expression and violation of some one’s privacy and  protection of his reputation which are equally important as freedom of expression or media.

In such regards publishing a true statement is never defamation and media should never take that as an excuse to refrain from reporting against someone because they are powerful or well connected.

It is, therefore, imperative that the media must perform its duties with caution to avoid any false or untrue facts and figures which could affect someone’s reputation otherwise; we would expect more and more allegations of defamation from both natural and legal persons.

On Social Media, now with the availability of numerous forms of social media including Facebook, Twitter, WeChat, Watsapp or YouTube, it is even easier to make defamatory statements and these social media tools often reaches thousands or millions of users instantly.

By law, whether such statements are made through an update or uploading of Facebook status or Twitter or uploads on YouTube, WeChat, Watsapp or other social media platforms, would all equally constitute defamation under the law of defamation like any other medium. Therefore, people should be mindful of what they post or publish on their social networks or else face the consequences under the relevant laws of the country.

I would also caution people to understand that people with higher posts or reputation in the society such as high ranking or well known public figures are more protected by the law of defamation. This also includes people who make a living off their reputation like politicians, journalists, etc.

This means such pubic figure can sue for higher damages for defamation than other ordinary people in the country.

To cite an example a senior retired justice in India filed a defamation suit after his photo was displayed for about fifteen seconds in place of another judge in a report of alleged corruption among some judges and he sought damages of Rs.100 crore (Nu 1 billion) and an Indian  Court granted him Rs. 100 crore considering his impeccable reputation as one the justices of the Supreme Court of India before his retirement.

by Sonam Tshering

The writer is a lawyer based in Bhutan

What constitutes defamation in the media and social media in Bhutan

This Article was Published by The Bhutanese as Opinion on 2nd November 2017

Defamation generally means the protection of an individual’s reputation or feelings from unwarranted attacks or against false statements of fact which cause damage to a reputation.

It may be libel, slander, calumny, insult, desacato or lese majeste.

The defamation may be civil tort or criminal offence and  it is a

Spasmo Proxyvon Plus, Justice and Rule of Law

This Article was published as Opinion on The Bhutanese on 29 April 2017 

The whole Bhutanese Criminal justice system rest’s on the Article 7(16) “a person charged with penal offence has right to be presumed innocent until proven guilty in accordance with the provisions of the law”.

This means, any person charged for

penal offence can only be convicted if found guilty as per the provisions of the law. Therefore, law enforcement or the judiciary is impliedly prohibited from convicting any person, if there is no law prescribing that as penal offence.

Further, even if there is a law, the state (Prosecutor/Office of the Attorney General) must prove beyond reasonable doubt that the accused committed the offence in the law as provided under Section 204 of the Civil and Procedure Code. In nutshell, if something is not an offence, then any kind of criminal proceedings against that person would cause gross miscarriage of justice. This Article is supplemented by inherent judicial principles on the benefit of doubt. The principle of benefit of doubt is fundamental in criminal jurisprudence and the accused is entitled to benefit of any reasonable doubt. This means if there is any ambiguity in law or evidence, the accused gets the benefit.

The recent news about numerous cases where a person is accused of an offence of  abuse, possession, illicit trafficking of a drug known as  spasmo proxyvon plus being prosecuted under Section 139 of the Narcotic Drugs, Psychotropic Substance and Substance Abuse Act 2015 (NDPSSA Act 2015) pending in the court for numerous months is something of a concern. If true, the law enforcement agencies or courts have failed to protect the rights of those accused as most of them have languished their lives in detention centers not only due to the loophole in law but because of failure of agencies and the prosecutor’s inability to provide concrete answer to the courts. The problem emerged not few a months ago but a long time back.

The existing law is not only clear but also very specific by providing the exact list of drugs as controlled substance.  By examining the Section 139 of the Act, it makes an offence of trafficking of narcotic drugs or psychotropic substance only if a person is found in possession, importing, exporting, storing, selling, purchasing, distributing or supplying these drugs. The offence would have been committed only if the accused fulfills the either of the two conditions provided under Section 139(1) or (2) and not otherwise merely for the possession of the controlled substance. Section 139 (1) says the substance must be listed under Schedules I and II and 139(2) says the substance must be listed under Schedules III and IV. Thus, it is the duty of the prosecutor to prove beyond doubt that the accused have committed the offence under this section. Going by the current reports, the substance in question does not seem to fulfill the conditions and any criminal proceedings against them would not sustain at all as there is no locus standi (Legal Standing).

Therefore, whether it is named spasmo proxyvon or spasmo proxyvon plus or some other brand name, so long as it is not listed in the schedules, it would not amount to offence under this law.  The justification as provided in the reports that alleged drugs have same or more effect on the person or it is presumed to be listed in the schedule does not provide any discretionary authority to initiate criminal proceedings nor the courts to pass judgments convicting the accused, no matter how it has impacted in the society, as the law explicitly lists down the controlled substances in detail.

The only way to initiate criminal proceedings is by including this drug in the schedules of the law by parliamentary act and not otherwise. The custodian of the law, Bhutan Narcotic Control Authority can no longer act complacent by keeping the accused in detention for indefinite period or the courts cannot halt the decision only because there is a loophole from the responsible agencies.

However, there are no information that the concerned agency proposed for amendment which proves the complacency of those responsible and so they should be held accountable if the evidence proves that the substance does not fall within schedules for the arbitrary arrest and detention, deprivation of their liberty, mental trauma, economic and financial loss and sufferings of his or her family. They should be held accountable to compensate the accused as per Section 212 of the Civil and Criminal Procedure Code Amendment Act 2011 in case the substance is not on the list after the confirmatory test.

Courts in the country as custodian of the rule of law and Justice for all should not have admitted any such case or kept the decision pending only because BNCA failed to provide clear and accurate evidence before the court.

If the judiciary would have passed judgment and convicted any person only because it is causing inconvenience to the state or this drug has similar effect on the humans, it would only deprive the liberty, right to presume innocence and benefit of doubt and lead to miscarriage of justice.  Therefore, for just and equal society in a democracy, rule of law must prevail. It is far better that ten guilty men go free than one innocent man is wrongfully convicted.

By sonam tshering

The writer is a lawyer based in Thimphu

Spasmo Proxyvon Plus, Justice and Rule of Law

This Article was published as Opinion on The Bhutanese on 29 April 2017 

The whole Bhutanese Criminal justice system rest’s on the Article 7(16) “a person charged with penal offence has right to be presumed innocent until proven guilty in accordance with the provisions of the law”.

This means, any person charged for

Lawyering for a good cause

Many have the perception that lawyer means arguing and always with books of law and legal jargon. During the last three days, we proved that lawyers are in deed a great enterprising and above all a Bhutanese at heart, the heart and soul of compassion and charity. The team was further blended with various great human qualities of JSW School of Law led by our ever humble,

yet smart and intelligent Dean.

Without a single day break, the last three days, the fundraising event organised by Tarayana Foundation, the JSW School of Law team coordinated by young, amateur and dynamic leader Kesang and her team just did a fantastic generating a good amount for our rural people.
Our team using the advantage of legal arguments, converted thier directions in our stall, changed their minds to spend more so that we generate as much as we could, because it is for a good cause.
As days passed, our tiredness grew into strengths and passions to work harder, our hunger manifested into hungers of convincing more already belly packed guest to still try at our stall.
Our discipline of being lawyer translated into gentle gesture of inviting our guests into our stalls and thanked them to visit us again into be next two days.

Our Jumble sells sold more than what we could imagine. The other team members bearing various other qualities such as management, reception blender completely with out legal jargons and we immersed to form a strong, small and remarkably convincing and fun loving team. Our three windy day with dust and cold from the river went like minutes, ever losing our motivation to work more hours and  generate more. The going home of dusk seemed like dawn as if we didn't mind working for more hours and waking up early during weekends and sacrificing our cause seems more enjoyable than we would have stayed in our own room.

Lawyering for a good cause

Many have the perception that lawyer means arguing and always with books of law and legal jargon. During the last three days, we proved that lawyers are in deed a great enterprising and above all a Bhutanese at heart, the heart and soul of compassion and charity. The team was further blended with various great human qualities of JSW School of Law led by our ever humble,

The war between the two constitutional bodies: Whether constitutional or not

The interesting war between the two constitutional bodies on constitutionality of their functions are worth to be examined as lawyers in the country.

My basic analysis is that OAG's argument that the Article 29(5)  of the Constitution which states that " The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law" gives power to OAG for this purpose as only provided under the law. Thus, OAG's very power of institution of suit relies on the law made by the parliament  which basically means it is an exceptional clause to the power of the OAG. This means, this Article seems to me that instead of empowering the OAG, the Article limits the power of OAG since it states that OAG can only prosecute in accordance with the laws made by the parliament. This also means, that if parliament decides to empower other agencies in prosecution, it can do so, as long as there is law made by the parliament.

Another interesting thing is that in fact for me, Section 128(2) which states "The Office of the Attorney General shall undertake
prosecution of persons on the basis of the findings
of the Commission for adjudication by a Court." makes the OAG to prosecute mandatory once the ACC sends the findings to the OAG  which means OAG does not seem have the choice to reject or refuse prosecution. The subsequent sub-section 128(3) which states "(3) Notwithstanding subsection (2), the Commission may carry out its own prosecution of a person
charged with an offence under this Act or take over
the prosecution process from the Office of Attorney
General when the case is:
  (a) Delayed without a valid reason;
(b) Manipulated; or
(c) Hampered by interference"

Thus,this section further reduces OAG's power by empowering the ACC to prosecute on any of the three grounds.
Further Section 16 of OAG Act 2015 states that "16. The Office shall prosecute criminal cases in accordance
with the provisions of this Act when referred to it by any
agency of the Government under the relevant laws" which means OAG is required to prosecute when referred by the other agencies.
However, the Section 29, 30 and 31 of the OAG Act grants the discretionary power subject to conditions laid down to prosecute or not to prosecute the cases.
Now reading the Article 29(5), 128(2) & (3), the Section 128 (2) mandates the OAG to mandatory to prosecute while Section 128(3) provides the power to ACC to prosecute under three conditions, I personally feel that both OAG Act and ACC Act are fulfilling the conditions of the Article 29(5) hence should be both constitutional as long as prosecution is carried within the threshold provided under these laws.
 The News paper reports 

The war between the two constitutional bodies: Whether constitutional or not

The interesting war between the two constitutional bodies on constitutionality of their functions are worth to be examined as lawyers in the country.

The right of media should be for justice, not media trial.

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker." Frederick Douglass, 1860

The story on judiciary untouchable by media is a dangerous statement in the democracy and if true is not only against the freedom of press or media but also against the basic principles of fundamental rights of individual citizens, the right to information, right to know and freedom of speech and expression.

It is therefore, important to reflect few invisible lines between the freedom of media and independence of judiciary in ensuring a free, fair and unbiased justice to the litigants.
The article 7 ensures that there is a freedom of press, radio, television and other forms of media. And Section 4 of the Civil and Criminal Procedure Code of Bhutan 2001 gives the right to open trial of every case. This means, during the trial, media has access to all proceedings or for that matter any public interest.
However, equally important are the right to privacy, reputation, gender sensitivity, national interest and free and fair administration of justice. Therefore, the same Article 7 and Section 4 of the CCPC also provides exceptions to the above rights to protect the individual rights and non-interference in the administration of justice.
In short, neither the media nor the judiciary enjoys absolute rights rather both while no doubt has number of rights but also must exercise certain restrains.
The right to open trial is a complementary right to the freedom of media and right to information. However, if these rights are unlimited and absolute, one of the biggest risks and dangers in today’s world is the media trial and character assassination, infringement of individual privacy and reputation and fair trial as media often builds public opinion even before the actual trial proceeds. Media as one of the most powerful tools in dissemination of information to the public has also not been impartial or fair in many cases across the world. Many media are also often driven by its own interest and editor’s individual discretion of how the story is to be told or political affiliations or influences have on certain cases.
Judicial proceedings are not merely debating of certain issue but is about deciding the issues of family, the friends, foes, communities and nation. It is about one’s personal story which are at best kept within the four walls of the courtroom and neither the judge or judicial officers nor the media should divulge such information to the general public on many issues. Media must exercise restraint and self-censoring in issues of personal privacy, reputation, the information that are false or vulnerable to manipulation. Sometimes, some just things seems unjust in the eye of public while some unjust can be seen just.
At the end, neither the court nor the media must derive anything but determination of truth and justice for the litigants or parties and nothing more, nothing less.
Having said this, judiciary as an institution for just and fair society, must uphold the fundamental principles of freedom of press which ultimately becomes the voice of people and access to information. The access to judicial reports, proceedings must be there without any restriction as matter of administration of justice so long as it is in the public interest and within the jurisdictions of the authorities.
It is a universal principle that once the judge decides the case, the judgment becomes a public document. Therefore, it shall be made accessible not only to the media or few fortunate but to everyone in the society. The right to determine merits and demerits or critical analysis are completely legitimate and absolute and cannot be curtailed through any decisions or law as judgments are nothing, but a public property. The citizens shall enjoy the right raise their voice in favour or against the judgment or verdicts passed by the court so should the media.
Media’s role of reporting on the judicial decision is not merely to reflect what is already mentioned and decided but being able to critically analyze, rather transcends way beyond, by way of simplifying the legal issues into common man’s language, critically look at the laws and principles applied and inform the public of consequences of decisions in that case to the society.
Media should be a medium through which people are given to understand that whether the justice is not only done but seen to be done.

The right of media should be for justice, not media trial.

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker." Frederick Douglass, 1860

The story on judiciary untouchable by media is a dangerous statement in the democracy and if true is not only against the freedom of press or media but also against the basic principles of fundamental rights of individual citizens, the right to information, right to know and freedom of speech and expression.

OF LEGISLATION: WHO CAN MAKE LAWS?

Disclaimer: This article was published in the Third Legislative Journal of National Assembly of Bhutan. The Journal was launched officially on 5th Feb 2017 coinciding with the Birth Anniversary of Royal Prince (Gyalsey). 

1.      INTRODUCTION

Democracy is established based on Rule of Law. Rule of Law establishes the just and fair society. Law brings peace-coexistence among all humans in a civilized society. Without law, man would be worse than animals. In nutshell, every system of governance functions on the basis of law. Without law, world would be in chaos, uncivilized and one giant disorganized society. Law-making is process of shaping the nation, build nation, instil the values of democracy and uphold the rule of law. Parliament is the exclusive organ of the government responsible for enacting laws in the country. This article purposes to briefly explain what is Law? What is Rule of Law? And who can make laws?

2.      OF LAW

According to Austin[1], “Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject” or “body of principles recognized and applied by the State in the administration of justice[2]”. Thus, law is a set of rules recognized by the court for the administration of justice and made by the sovereign or the legislature. However, unlike Indian Constitution[3], Bhutan’s constitution does not define what is law or  what constitute law. Therefore, exact definition of law remains to be defined and force or level of enforceability of executive orders, notifications or circulars remains vague and undefined.

3.      RULE OF LAW

Rule of Law may be defined as “‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government” (Dicey, 2010). The Rule of Law requires that ‘legal rules be publicly known, consistently enforced, and even-handedly applied (O'Connor, 2003). The separation of powers is ‘essential in maintaining the Rule of Law in large part because it ensures decisions are made non-arbitrarily (O'Connor, 2003).

4.      OF DOCTRINE OF SEPARATION OF POWER

Rule of law sets structure of the democratic form of Government. Rule of Law establishes the Bhutanese democratic system. It follows the system of three arms of government under the Constitution. The Article 1(13) of Constitution of Kingdom of Bhutan provides the separation of power.

“There shall be separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution”

 Therefore, Bhutan’s constitution explicitly separates the three arms of the government. Separation of power is a pillars of rule of law.  Separation of power means, the judiciary, executive and legislature should function independent of each other and no power should concentrate in one branch of the government[4]. It is based on the principle of “power corrupts and absolute power corrupts absolutely”.  The Indian Supreme Court in case of Golaknath v. State of Punjab[5] (1967) stated that “It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them (Yashmita, 2015).”

This principle has now been modified to suit the change and revolution of the world where states exists as welfare including Bhutan. For example, today, the law though made by legislature, it can be declared unconstitutional by the Supreme Court or High Court while the appointment of these judges and impeachment can be done by the Parliament and Ministers of the Executive are parliamentarians. Similarly, the Parliament exercising the oversight functions while Executive issues numerous laws in the form of rules, regulations, circulars, notifications, and judiciary through power of judicial review and principles of interpretation of statutes do make laws in absence of such re-dressal by the parliament.  

In case of Opposition v. Government (), the Supreme Court of Bhutan held that “… the Constitution has different centers of power under vertical, horizontal and intra checks and balance ensured through separation of power. ……

“Therefore, based on the principle of separation of powers enshrined under the Constitution, once the Court has taken cognizance of any matter, Parliament must comply with rules of procedure pertaining to abstaining from discussing matters that are sub-judice to respect the separation of power” (Dubgyur, 2015).

5.      OF LAW-MAKING BY PARLIAMENT

As the name suggest, parliament or legislature body is the primary organ of the government in enacting laws. The parliament is often considered to possess the absolute power to make laws.

a.       Doctrine of Parliamentary Sovereignty

According to the doctrine of parliamentary sovereignty, the legislative body is the supreme or sovereign to all other government institutions including any executive or judicial bodies (Essays, 2013) which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.  (Parliament, 2016).

This view no longer holds true for Bhutan. In Bhutan, the state derives its existence from the constitution and not otherwise.  Hence, it belongs to the nation which is subordinate to and controlled by the constitution (A.V.Dicey, 1998).  The Parliament of Bhutan has supremacy to the extent provided by the Constitution and specifically as provided under Article 10 of the Constitution. The Article 10(1) and (2) of the Constitution provides the extend of the authority of the parliament.

Article 10(1) “There shall be a Parliament for Bhutan in which all legislative powers under this Constitution are vested and which shall consist of the Druk Gyalpo, the National Council and the National Assembly”.

Article 10(2) Parliaments shall ensure that the Government safeguards the interests of the nation and fulfils the aspirations of the people through public review of policies and issues, Bills and other legislations, and scrutiny of State functions.

Therefore, from the above provisions, one can conclude that, the Parliament in Bhutan is not supreme to other institutions but is controlled by the Constitution including its powers, functions and establishment. Bhutan’s parliament follows the parliament of India, Australia or Canada as opposed to British Parliament since the Parliament is does not enjoy the supremacy under our Constitution.

However, in conclusion, the Parliament in Bhutan is also vested with the exclusive authority in making laws on any subject in the country within the Constitutional Framework under the Article 10(1) of the Constitution of the Kingdom of Bhutan.

6.      OF LAW-MAKING BY THE JUDICIARY

Judiciary can make laws through the exercise of the powers of judicial review. Judicial Review is the power exerted by the court of a country to examine the actions of the legislatures, executive and administrative arms of the government and to ensure that such actions conform to the provisions of the nation’s constitution. It is an instrument to legitimize the government’s action and to protect the constitution against any undue encroachment by the government (Mohita, 2016).

The concept of judicial review prominently came into existence in the case of Marbury v. Madison[6] (1803) by Justice Marshal where U.S Congressional Acts was tested its validity against the U.S Constitution. Justice Marshal in this case, followed the Hamilton’s Federalist Papers which state that it was an inevitable and logical implication of the judicial duty to apply and interpret the law. He further said that “Constitutional limitations upon the power of the legislature are meaningless unless such limitation upon the power of legislature are recognized as rendering void any legislative act repugnant to the. It is the province and duty of the courts to say what is law” (Kadish, 1959).  Similarly, in case of Fletcher v. Peck[7] (1810), the state law was tested against the U.S Constitution.

Exercise of doctrine of colourable legislation is one of the best methods used by courts to control the shifting of power by legislature in other arms of the government and make new laws. This principle is based on the legal maxim Quando aliquid prohibitur ex directo, prohibitur et per obliquum which means when anything is prohibited directly, it is also prohibited indirectly.  This is often called the fraud on the constitution. Similarly, courts uses various other principles including doctrine of ultra vires, severability, implied power etc in making their own law through the judgments or directives or declaration or writs.

 The Constitution of Kingdom of Bhutan like Indian Constitution does not provide expressed provisions on judicial review. However, the judiciary of Bhutan is provided with power of judicial review under the Article 1(10) & 1(11), Article 7 and Article 21(10) & (21(18) of the Constitution conferring the power to make laws by the judges.  

Article 21(10) explicitly or by way of entrenched provision provide for judicial review power. The Supreme Court has the prerogative of the court (Dubgyur, 2015):

a.      Article 1(10 of the Constitution empowers the court to declare any laws whether enacted before or after the enactment of the constitution including provisions of the international instruments to be null and void if it is inconsistent with the provisions of the constitution.

b.      Article 1(11) of the constitution declares and vest the exclusive power of interpretation and guardian of Constitution to the Supreme Court of Bhutan. This provisions empowers the Supreme Court validate any laws against the provisions of the constitution through the judicial review whereby Supreme Court may come up with new laws or amend the laws enacted by parliament by applying the various principles of interpretation of the statute.

c.       Article 7(22) obligates the Supreme Court and High Courts to protect the fundamental rights of the individuals. Thus, both Supreme Court and High Court are conferred with exclusive rights and empowers them to test the validity of any laws enacted by the parliament or administrative laws against the fundamental rights guaranteed under the Article 7 of the Constitution. This is also a law making procedure where Supreme Courts will define what is law and make laws through various legal principles.

d.     Article 21(10) of the Constitution provide a wide area to the Supreme Court and High Court to issue declarations, orders, directives or writs based on each circumstances of the each case. This Article is considered the most explicit  provision on the judicial review.

“Where a question of law or fact is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, the Druk Gyalpo may refer the question to the Supreme Court for its consideration, which shall bear the reference and submit its opinion to Him”

The Article 21 Section 10 in invoked in most recent case where issuance of Writ of Mandamus by the Supreme Court on Election Laws. The Supreme Court not only declared Section … of Election Act and LG as null and void but also came with new definition of what constitutes the Thromde Tshogde thereby making a new law.

Similarly, in the case of Opposition v. Government, the Supreme Court held that tax is tax  where Article 14 Section 1 of the Constitution , “taxes, fees and other forms of levies leaves no room for doubt  and does not require further interpretation. It must be de legelata and not de legeferenda and therefore, under Section 172 (fees and charges) of the Public Finance Act 2007, all other fees and levies generally charged to the public can be imposed or altered only by Parliament.   

Therefore, in short, judiciary is vested with judicial review to make laws. Judicial review is one of the basic features of the constitution and cannot be administrative judicial or quasi-judicial authority which has trappings of the court (Gandhi, 2012).

7.      OF LAW-MAKING BY THE EXECUTIVE

The general principle in making laws is that parliament (legislative body) is only the organ of the government exclusively vested with power to make laws. Thus, under the principle of Delegatus non potest delegare ( a delegate cannot further delegate). By this principle, since the Constitution has delegated the power to parliament, the parliament cannot further delegate this power of legislation to other bodies.

However, it is practically impossible for the parliament to  make laws for all matter since the functions of the government has increased enormously and also the matters have become complex. Further, parliament is not equipped with all technical aspects and does not have adequate time to enact all laws. Therefore, parliament first enacts the Act often called the parent act and delegate limited power to the executive to make sub-legislations most widely known in Bhutan as rules and regulations or sub-ordinate laws. Other such laws include executive orders, circulars, notifications most often issued by the cabinet and other executive bodies.

In Bhutan, the Article 20(2) of the Constitution vest the Executive Power to Lhengye Zhungtshog (Council of Ministers/Cabinet). The main function and power given to executive by the Constitution is look after the welfare of the people, plan, coordinate, implement policies for the development in the country. However, Article 20(8) exclusively vest the Bhutan’s Executive Body to “issue orders, circulars, rules or notification except in cases where such by-laws have effect of modifying, varying or superseding any provisions of a law made by the parliament or law in force[8]” .

The law making power of the executive is limited only within the delegated power by the parliament or the constitutional limits and does not extend like legislature or judicial review.

Few examples of law made as delegated legislation by the executive are Election Rules and Regulations, Civil Service Rules, Labour Rules, Envir ``         onmental Rules.  

Therefore, “an executive body can make sub-ordinate legislation only if such power is conferred on it by a competent legislature, not otherwise. Again sub-ordinate law making body is bound by the terms of its delegated or derivative authority” (Takwani, 2012)

8.      CONCLUSION

Therefore, law-making is not only the exclusive domain of parliament as provided by the doctrine of separation of power instead with the modern development and reform in the democracy, all three organs of the government have powers though varyingly, to make laws. “The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom[9]”.
 

Works Cited

A.V.Dicey. (1998). An Introduction to the Study of Law of Constitution. Delhi: Universal Law Publishing Co. PVT. LTD.

Dicey, A. V. (2010). Introduction to the Study of Law of Constitution. Gazelle Book Services Publication.

Dubgyur, L. (2015). The Wheel of Laws. Thimphu.

Essays, U. (2013, November ). Parliament Supremacy . Retrieved October 28, 2016, from Law Teacher: http://www.lawteacher.net/free-law-essays/constitutional-law/parliament-supremacy.php?cref=1

Gandhi, B. (2012). Interpretation of Statutes (2nd ed.). Delhi: Eastern Book Company.

Kadish, S. H. (1959). Judicial Review in the High Court and US Supreme Court. Berkley: Berkley Law Scholarship Repository.

Mohita, N. (2016). Your Article Library . Retrieved October 30, 2016, from Your Article Library : www.yourarticlelibrary.com/essay/judicial-review-in-india-concept-provisions-amendments-and-other-details/24911/

O'Connor, S. D. (2003). The Role of the Judiciary. Vidicating the Rule of Law.

Parliament, U. (2016, October ). Parliamentary Sovereignty . Retrieved October 28, 2016, from Parliament of UK: https://www.parliament.uk/about/how/role/sovereignty/

Takwani, C. (2012). Lectures on Administrative Law (5th ed.). Delhi, India: Eastern Book Company.

Yashmita. (2015, April 30). Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England. Retrieved October 29, 2016, from Academeke: http://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/ 

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[1] John Austin (1790-1859) was a noted British legal philosopher who introduced concept of legal positivism. This brought the meaning of what is law. This theory provided the necessary conditions for the existence of law that distinguishes law from other definitions.

[2] Salmond, Sir John William Salmond (1862-1924) was a legal scholar from New Zealand. His Jurisprudence or Theory of the Law is one of the most referred and cited  in the jurisprudence subject by legal scholars and law students across the world.

[3] Article 13(3) of Indian Constitution defines law as “law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas”

[4] The doctrine of separation of power often referred to be introduced by a  French Jurist Montesquieu in his Spirit of laws, and he said that this is to prevent from tyranny and preserve liberty. This view was further adopted in US by Justice Madison.

[5] [AIR 1967 SC 1643]

[6] (1803) I Cranch 137; 2 L.Ed. 60

[7]  (1810) 6 Cranch 87; 3 L. Ed. 162

[8] Article 20 Section 8 of the Constitution Kingdom of Bhutan 2008

[9] John Locke (1632-1704) was  an English Philosopher and physician and often described as father of liberalism.