Sunday, March 13, 2011

Questioning the purpose of the law

March 06, 2011: (Thimphu)

The Opposition Leader (OL), Lyonpo Tshering Tobgay has personally arranged a lawyer for the 23-year-old former monk, who has been sentenced to three years imprisonment by the Thimphu district court for breaching the revised Tobacco Control Act.Cheda, an advocate with UC Associate will represent Sonam Tshering (the monk) in the high court.
“He looks like a broken man.... keeping his head down like he has no mind. He’s taken it very badly. I asked him if he wanted to appeal and he agreed,” said the OL Tshering Tobgay.

The district court verdict shocked most observers who were expecting leniency from the judiciary because considering the quantity of tobacco confiscated from Sonam Tshering, it seemed he would be booked for self consumption but surprisingly the court charged him for smuggling.

Talking to the media during a press conference on Friday, Lyonpo Tshering Tobgay, who has been aggressively lobbying for the amendment of the Act, expressed his dejection over the verdict and openly called for the people, including the media fraternity, to support Sonam Tshering’s case.

“I found it very difficult to comprehend how a fellow citizen can be sent to three years in jail for possessing tobacco worth just Nu 98. How can we do that?” he asked.

Speaking along a similar line the opposition MP, Damcho Dorji, recommended awareness campaigns over harsh punishment to discourage the use of tobacco, which he say is more effective and rational. He strongly feels that the sentence meted out to Sonam Tshering is not proportionate to the crime he has committed.

“What do we do? Do we do nothing? Ultimately we have to do something. The parliament will have to do something, the people of Bhutan will have to do something,” he said.

In order to support his argument, he cited the example of the research that was carried out in the United Kingdom and US. The research predicts that in next 30 years, with successful awareness campaigns, people in these areas will quit smoking.

Regarding the issue of linking smuggling with self consumption, Damcho Dorji, said if an accused reveals the source he should be charged for possession and in Sonam Tshering’s case the source happened to be from across the border but then the law does not specify that the source should be from within the country and under the legal principles the accused gets the benefit of doubt.

“If Sonam Tshering is forced to reveal the source then he is being used as a witness against himself, he is an informer against himself. There could be problem under the doctrine of self incrimination, which means the prosecutor cannot obtain information from him unless he confesses voluntarily,” he said, adding the high court might bring down the charge to misdemeanor and convict him for possession and not smuggling.

While the smokers blame the government for framing such draconian law, the OL said that even the government empathizes with Sonam Tshering.

He said that the government and the opposition thought along the same line because the father of Sonam Tshering first went to the Prime Minister from where he was directed to the Druk Phuensum Tshogpa’s office and there the party workers helped him with his letters.

“So they felt exactly the way we did. It is not political; I am not saying the government is wrong. All we are doing is questioning the purpose of the law and how we are going to implement it. There will be many more such cases to come,” he said.

In addition, he also clarified the accusation of the Prime Minister and the Health Minister that he is fervently supporting Sonam Tshering because they share the same constituency, as baseless.

“He can not even vote,” he explained, “ Since it is the first case, it strikes our heart and conscience and I have to do something.”

Asked whether he would be supporting and providing lawyers to every person convicted for violating Tobacco Control Act, he said, he will not entertain those genuinely involved in smuggling and spreading the use of tobacco.

‘They deserve to go to jail,” he added.

But, he continued, if the quantity is small then his moral duty will not allow him to stay without doing anything and he would do everything within his capacity to check the injustice from happening.

During the last ‘meet the press,’ the cabinet also attacked the OL for calling ‘citizens’ movement’ to oppose the Tobacco Control Act, which they argued would disrupt the harmony in the country. Countering the government’s stand, the OL clearly stated that demonstration and defiance against the government is the last thing he wants and he is not in favor of it.

“There are many people who came to us and said that they want to meet at the clock tower square, they all want to have a smoking session together, they want to defy the Act,” he said, adding that he warned them not to carry out any such activity that would make the mockery of democracy.

He added that the elegant solution would be to write to their respective members of parliament (MP) and urge them to reconsider and amend the Act and if there are enough people then the MPs should listen because that’s how democracy functions.

However, neither the government not the opposition can move the motion for the amendment of Tobacco Control Act during this summer session of the parliament because as per the legislative norm, an Act can not be revised before one year.

(this articles in taken out from