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,