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Published online by Cambridge University Press: 06 January 2020
The Penal Code of Bhutan was introduced just four years before that nation became a democratic state in 2008. After a brief outline of the origins of that Code, this article proceeds to describe the qualities of a ‘good’ code, as viewed by Thomas Macaulay, the principal drafter of the Indian Penal Code. Thereafter, the Penal Code of Bhutan is measured against these qualities and found to be wanting in many significant areas. This article concludes with two possible solutions to rectify this unsatisfactory situation.
Senior Lecturer, JSW School of Law, Bhutan.
Visiting Research Professor, Faculty of Law, National University of Singapore and Visiting Professor, JSW School of Law, Bhutan. The authors would like to thank Mark Brown, Michael Hor, and the two anonymous reviewers for their helpful comments on an earlier version of this article.
1. See eg Law Commission, Criminal Law: A Criminal Code for England and Wales: Volume 1, Report and Draft Criminal Code Bill (Law Com No 177, 17 Apr 1989) <https://www.gov.uk/government/publications/the-law-commission-report-on-criminal-code-for-england-and-wales-april-1989> accessed 20 Nov 2019; Law Commission, Criminal Law: A Criminal Code for England and Wales: Volume 2, Commentary on Draft Criminal Code Bill (Law Com No 177, 17 Apr 1989) <https://www.gov.uk/government/publications/the-law-commission-report-on-criminal-code-for-england-and-wales-april-1989> accessed 20 Nov 2019; Criminal Code Officers Committee & Australia Attorney-General's Department, Model Criminal Code: Chapter 2, General Principles of Criminal Responsibility: Final Report (Australian Government Publishing Service 1993).
2. National Assembly of Bhutan, ‘Translation of the Proceedings and Resolutions of the 82nd session of the National Assembly of Bhutan 2004’ (NAB 2014) <www.nab.gov.bt/assets/uploads/docs/resolution/2014/82nd_Session.pdf> accessed 20 Nov 2019. Although engaging the High Court to draft legislation was contrary to the doctrine of separation of powers, this was done as a matter of expediency, since the judges of the High Court were the most equipped to undertake this task among the few legally trained Bhutanese at the time.
3. This legal expert was Carrie H Cohen, former Assistant Attorney General of New York City. See Asia Society, ‘Bhutan's Transition to Constitutional Monarchy: Challenges for Change’ (Asia Society, 30 Apr 2003) <https://asiasociety.org/bhutans-transition-constitutional-monarchy-challenges-change> accessed 20 Nov 2019.
4. Unfortunately, clear and comprehensive documentation on the origins of the Penal Code of Bhutan (PCB) and related codes on criminal procedure and evidence is scarce. For an informative source derived from personal interviews and oral history, see Sonam Tshering, ‘A Nation with a Legal System without a Lawyer: The King guides the Court: In Pursuit of Justice for the Happiness of His Subjects’ (Paper presented at the 16th Asian Law Institute (ASLI) Conference on ‘The Rule of Law and the Role of Law in Asia’, National University of Singapore, 11–12 Jun 2019).
5. To ameliorate this situation, all candidates standing for Parliament must now possess a university degree: see the Election Act of the Kingdom of Bhutan 2008 (Act No 425 of 2008), ss 176, 177.
6. See eg Goldbach, Toby, Brake, Benjamin & Katzenstein, Peter, ‘The Movement of US Criminal and Administrative Law: Processes of Transplanting and Translating’ (2013) 20 Indiana Journal of Global Legal Studies 141CrossRefGoogle Scholar; McLeod, Allegra, ‘Exporting US Criminal Justice’ (2010) 29 Yale Law and Policy Review 83Google Scholar; Rosen, Richard, ‘Theory in Practice: Code Drafting in Eritrea’ (2001) 27 North Carolina Journal of International Law and Commercial Regulation 67Google Scholar; Sornarajah, M, ‘Interpretation of the Penal Codes’ (1991) 3 Malayan Law Journal cxxixGoogle Scholar.
7. See Rosen (n 6) 69.
8. National Assembly of Bhutan, ‘Penal Code (Amendment) Bill of Bhutan 2019’ (NAB 2019) <http://www.nab.gov.bt/assets/uploads/docs/bills/2019/Penal_Code_amendment_bill_of_Bhutan2019.pdf> accessed 20 Nov 2019.
9. Indian Penal Code 1860 (Act No 45 of 1860).
10. The ensuing discussion draws upon the analysis in Stanley Yeo, ‘Revitalising the Penal Code with a General Part’  Singapore Journal of Legal Studies 1.
11. Cited in Trevelyan, George Otto, The Life and Letters of Lord Macaulay (Longmans, Green, and Co 1923) 303Google Scholar.
13. See Rupert Cross, ‘The Making of English Criminal Law (5) Macaulay’  Criminal Law Review 519.
14. Macaulay, Thomas et al. , A Penal Code Prepared by the Indian Law Commissioners (Pelham Richardson 1838) vGoogle Scholar.
15. See Wright, Barry, ‘Macaulay's Indian Penal Code: Historical Context and Originating Principles’, in Chan, Wing-Cheong, Wright, Barry & Yeo, Stanley (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform (Ashgate Publishing 2011) 22–25Google Scholar. See also Lyonpo Sonam Tobgye, ‘The Blessings of Enlightened Laws – A Foundation for Peace and Happiness’ (2019) XI Bhutan Law Review 4, 12: ‘Statute[s] must be direct, unambiguous, concise and definite. If laws are vague the Courts will be constitutive and abrogative’.
16. For a very recent example, see the Supreme Court of India's decision in Navtej Singh Johar v Union of India (Writ Petition No 76 of 2016) <https://www.refworld.org/cases,IND_SC,5b9639944.html> accessed 20 Nov 2019. In that case, Dipak Misra CJI held, at para  of the judgment, that the criminalization of consensual homosexuality between adults under the IPC was unconstitutional, ‘irrational, indefensible and manifestly arbitrary’.
17. Gledhill, Alan, The Penal Codes of Northern Nigeria and the Sudan (Sweet and Maxwell 1963) 19Google Scholar.
18. Several examples are described in detail in Yeo ‘Revitalising the Penal Code with a General Part’ (n 10).
20. For example, the following words contained in the IPC: ‘wantonly’; ‘maliciously’; ‘common intention’; ‘unsoundness of mind’.
21. Law Commission, Criminal Law. A Criminal Code for England and Wales: Volume 1, Report and Draft Criminal Code Bill (n 1) 5.
22. See Yeo, Stanley, Morgan, Neil & Cheong, Chan Wing, Criminal Law in Malaysia and Singapore (2nd ednLexisNexis 2012) 1040–1042Google Scholar.
23. Macaulay et al (n 14) (referring to the legislative quality of the illustrations appearing in the proposed Code).
27. See eg Navtej Singh Johar (n 16).
28. The ensuing discussion does not refer to decisions of the Bhutanese courts for two reasons. The first is that the authors have encountered difficulty finding relevant cases. Secondly, and perhaps more importantly, an evaluation of the judicial handling of the PCB provisions would sidetrack from the thrust of this article, which is to show that the PCB is in need of a major review.
29. Model Penal Code: Official Draft and Explanatory Notes (The American Law Institute 1985), s 2.02Google Scholar (General Requirements of Culpability).
31. Model Penal Code: Official Draft and Explanatory Notes (n 29).
32. US Code, s 2.20(a).
33. A possible interpretation is to regard s 64 as dealing with cases where the principal perpetrator committed the crime, helped by the accomplice. The provision states that the accomplice will be guilty of the same crime as the principal perpetrator, but will receive a reduced penalty. On the other hand, ss 125 and 126 are concerned with cases where the principal perpetrator did not commit the crime. They hold the secondary offender guilty of the offence of aiding or abetting a crime, or solicitation to commit a crime (as the case may be) in spite of the principal offence not being committed. As such, they are forms of inchoate crimes, as attested to by the provisions coming under Ch 10, alongside attempt and conspiracy. This interpretation, albeit correct, does little to resolve the many problems of imprecision and ambiguity described in the main text.
34. Emphasis added.
35. Lyonpo Sonam Tobye, ‘The Blessings of Enlightened Laws – A Foundation for Peace and Happiness’ (n 15) 13–14.
36. In particular, a detailed definition of ‘accomplice’ is provided for under s 2.06(3), and the mens rea of an accomplice is clearly described in s 2.06(4).
37. Model Penal Code and Commentaries (Official Draft and Revised Comments): Part I, General Provisions, §§ 3.01 to 5.07 (The American Law Institute 1985) 297Google Scholar.
38. For example, Sexual Offences Act 2003 (England and Wales), s 1; Crimes Act 1900 (New South Wales), s 61HA; Criminal Code (Queensland), s 349.
39. A felony is punishable with between three to five years’ imprisonment, whereas a petty misdemeanour attracts between one month to one year of imprisonment.
40. See main text accompanying note 35.
41. US Code, s 211.1. Occasionally, assaults are classified as psychic and physical, with the former constituting a common assault and the latter a battery.
42. See eg US Code, s 211.1 (the offence of ‘assault’).
43. See eg IPC, ss 350–352 (the offences of ‘criminal force’ and assault’).
44. Note that the requirement of ‘reasonable belief’ under s 89 of the PCB creates an inconsistency in that the other justificatory defence of ‘use of force’ under s 95 only requires an honest belief. In contrast, the equivalent provision in the US Code, namely s 3.04(1), follows s 3.02(1) in only stipulating that the belief be honest.
45. Emphasis added.
46. Model Penal Code and Commentaries (n 37) 14.
47. Emphasis added.
48. For a similar analysis in relation to the PCB's provisions on the defence of property, see Stanley Yeo, ‘Use of Force to Protect Property’ (2019) XII Bhutan Law Review (48).
49. PCB, ss 49–50; US Code, s 2.01.
50. The conditions of substantial capacity are the same as those for the defence of mental disease or defect under s 4.01 of the US Code. The PCB has an identical provision under s 118.
51. See n 3 and accompanying main text.
52. Lyonpo Sonam Tobye, ‘The Blessings of Enlightened Laws – A Foundation for Peace and Happiness’ (n 15) 13–14.
53. For example, negligent homicide (s 144); negligent assault (s 156); and negligent burning or exploding (s 233).
54. US Code, s 2.02(2)(d).
55. Some examples of this are Australia, Canada, England, and India.
56. The offence is categorized as a felony in the fourth degree, which, under the PCB, attracts a penalty of between 3 years and 5 years’ imprisonment.
57. Since s 177 is silent on the mens rea for rape, s 58 operates to stipulate that it is established if the defendant acts purposely, knowingly, or recklessly with respect to the material elements of the offence. Consequently, the prosecution must prove that the defendant had purposely engaged in sexual intercourse knowing that the victim did not consent, or was reckless as to whether she consented or not to such intercourse.
58. US Code, s 2.04(1)(a).
59.  UKHL 3,  AC 182.
60. Interestingly, this has always been the law under the IPC where s 79 requires the mistake of fact to be ‘in good faith’, which the IPC defines as ‘with due care and attention’.
61. Alexander, Dolly F, ‘Twenty Years of Morgan: A Criticism of the Subjectivist Vew of Mens Rea and Rape in Great Britain’ (1995) 7 Pace International Law Review 207Google Scholar; Crofts, Thomas, ‘Rape, The Mental Element and Consistency in the Codes’ (2007) 7 Queensland University of Technology Law & Justice Journal 1Google Scholar.
62. No formal surveys or interviews have been conducted on this issue. However, the authors gauged the response of the 25 law students at the JSW School of Law, Bhutan, whom they taught the course on ‘Penal Law and Restorative Justice’ in 2019. This group of students comprised a fairly good representation of members, aged between 19 and 22 years, of urban and rural communities across the whole of Bhutan. After the students were presented with these two alternatives, more than 90% were in favour of requiring the accused's belief to be based on reasonable grounds.
63. PCB, s 199.
64. Examples include Australia, England, Nepal, Singapore and several US states. India is also moving in this direction. See Sarthak Makkar, ‘Marital Rape: A Non-criminalized Crime in India’ (HHRJ Online, 1 Jan 2019) <https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/> accessed 20 Nov 2019.
65. 95% of the law students in the group referred to in n 62, thought so.
66. R v Windle  2 QB 826 (CA).
67. Stapleton v R (1952) 86 CLR 358 (HC).
68. R v Chaulk (1990) 62 CCC (3d) 193 (SC).
69. Crimes Act 1961 (New Zealand) (Public Act No 43 of 1961), s 23(2)(b).
70. IPC, s 84.
71. US Code, s 4.01(1).
72. Model Penal Code: Official Draft and Explanatory Notes (n 29) 62.
73. Buddhism, the national religion of Bhutan, is subscribed to by a vast majority of the population. It is practised alongside Bhutanese folk beliefs called luso, as well as vestiges of Bon, the pre-Buddhist religion prevalent across the Himalaya.
74. Simester, Andrew, Brookbanks, Warren & Boister, Neil, Principles of Criminal Law (5th edn, Thomson Reuters 2019) 458Google Scholar.
75. PCB, Ch 3.
76. For a discussion of recent thinking and developments under US Federal law, see Paul Larkin Jr & Evan Bernick, ‘Reconsidering Mandatory Sentences: The Arguments for and Against Potential Reforms’ (The Heritage Foundation, 10 Feb 2014) <https://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against> accessed 20 Nov 2019.
77. For an account of the role that Buddhism has played in the Bhutan criminal justice system, see Dubgyur, Lungten, ‘Buddhism – A Source of Bhutanese Criminal Justice System’ (2019) XI Bhutan Law Review 17Google Scholar. See also Whitecross, Richard, ‘Of Texts and Drama: Delivering Justice in Bhutan’ (2016–2017) 2 Buddhism, Law & Society 77Google Scholar.
78. See National Assembly of Bhutan, ‘Translation of the Proceedings and Resolutions of the 82nd session of the National Assembly of Bhutan 2004’ (n 2).
79. Yargay, Lobzang Rinzin, ‘Mediation: Treading the Middle Path in Dispute Resolution for Community Vitality and Gross National Happiness’ (2019) XI Bhutan Law Review 29Google Scholar.
80. See the main text accompanying n 27.
81. cf Tobgye, Lyonpo Sonam, ‘Judges and Judging in Democratic Bhutan’ (2018) IX Bhutan Law Review 19, 28Google Scholar, stating that ‘[j]udges do not make law’ and, quoting the Thrimzhung Chhenmo, that the ‘judge shall decide cases and award punishment strictly in accordance with the provisions of the law. He shall not allow himself to be swayed by any personal opinions while interpreting the provisions of law.’
82. Thomas Macaulay et al (n 14) v (referring to the legislative quality of the illustrations appearing in the proposed Code).
83. His Majesty the Gyalpo, Druk, Wangchuck, Jigme Khesar Namgyel, ‘The Roles of the Judiciary in creating a Just, Civil Society: A Society based on Justice, Equality and Fairness’ (2018) IX Bhutan Law Review 4, 5Google Scholar. It must be emphasized that His Majesty is highly revered by his citizens.
84. As noted previously, the Singapore Penal Code is almost identical to the IPC.
85. Cheong, Chan Wing, Yeo, Stanley & Hor, Michael, Criminal Law for the 21st Century, A Model Code for Singapore (Academy Publishing 2013)Google Scholar.
86. Ministry of Home Affairs, ‘Penal Code Review Committee Report’ (MHA Aug 2018) <https://www.mha.gov.sg/docs/default-source/default-document-library/penal-code-review-committee-report3d9709ea6f13421b92d3ef8af69a4ad0.pdf> accessed 20 Nov 2019.
87. Criminal Law Reform Bill (Bill No 6/2019) <https://sso.agc.gov.sg/Bills-Supp/6-2019/Published/20190211?DocDate=20190211> accessed 20 Nov 2019.
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