The Tobacco Control Act 2010 and important provisions in it

Of recent the Tobacco Control Act of Bhutan 2010 and a few provisions in there, particularly the penalty clauses and the act in essence, has come to be questioned. It is also evident that there are supporters of the law and it may be too early to conclude that “the Bhutanese are against the law”. However, it does bring out an understanding that a few DO NOT agree with it, in part or otherwise.

Over the last few weeks I have met people who hold varied opinions, some not as loud as the others. Still a few had nothing to say as they did not understand what the “fuss”, as some put it, was all about. This is just to convey the sort of opinions (or non-opinions) that I have come across.

A law is more than just the penalty clause alone and I thought it was important that while we may continue criticizing it, it is doubly important we understand the nuances of a law, which is by no means limited to the penalty clause alone. In the same “Tobacco Control Act 2010”, there are salient features that need focus to be understood altogether, which consists of 60 clauses (sub clauses to go with them). Not enough may have been understood about the law for in its clauses lays the “INTENT” of the law-makers. I do not want to take the risk of sounding too defensive, so without further explanation, I have put an exhibit of my selective clauses and sub-clauses which together is the “Tobacco Act 2010” to me.

3. No person shall smoke in the following public places but not limited to:

a) Commercial centers: all shops, shopping complexes, supermarkets, showrooms, exhibition halls, lobbies and places to which public have access in hotels, motels, guest houses, inns and lodging, bars and restaurants, clubs, internet cafes;

b) Recreation centers: discotheques, snooker rooms, health clubs, sports and game centers, playing fields and related offices, cinema, theatre, video halls and other buildings of entertainment;

c) Institutions: all offices including those in the private sector, dzongs, monasteries, museums, health, educational, religious and training centers and their vicinity;

d) Public gatherings/spaces: public meetings, Tschechu, festivals and traditional celebrations,vegetable markets, bus and taxi stands,airports;

e) Public transportation: all buses and taxis, all forms of motor vehicles and aircrafts for passenger transport; and

12. A person may import tobacco and tobacco products for personal consumption as per the quantity approved by the Tobacco Control Board.

13. A person importing tobacco and tobacco products for personal consumption shall pay duties and taxes as specified in the rules.

20. The Royal Government shall designate relevant agencies to promote:

a) access to effective and comprehensive educational and public awareness programmes on the health risks including the addictive characteristics of tobacco consumption and exposure to tobacco smoke;

b) the benefits of the cessation of tobacco use and tobacco-free lifestyles;

c) effective and appropriate training or awareness programmes on tobacco control addressed to persons such as health workers, community workers, social workers, media professionals, educators, decision-makers, administrators and other concerned persons;

d) awareness and participation of private agencies and non-governmental organizations in developing and implementing inter sectoral programmes and strategies for tobacco control; and

e) access to information on the adverse health hazards on individual, family, society and environmental consequences of tobacco consumption.

22. The Tobacco Control Board through the Tobacco Control Office shall take effective measures to promote cessation of tobacco use and adequate treatment for tobacco dependence.

23. The Tobacco Control Board through the Tobacco Control Office shall:

a)   design and implement effective cessation programme in the health care facilities;

b) collaborate with rehabilitation centers and organize programme for diagnosing, counseling, preventing and treating tobacco dependence; and

c) collaborate with international agencies to facilitate accessibility and affordability for treatment of tobacco dependence including pharmaceutical products.

The Board:

26. c) facilitate to fulfill the obligations under the WHO Framework Convention on Tobacco Control and its protocols to which Bhutan is a Party.

27.  b) formulate and implement national tobacco control strategy;

g) propose amendments to this Act as and when necessary to the Parliament.

33. The Ministry of Health has the responsibility to:

a) promote awareness on the dangers of tobacco and health hazard to the public and all institutions;

b) establish effective cessation programmes in the health institutions;

c) carry out research on the ill effects of tobacco consumption on health; and

d) implement health promotion measures through all forms of media and through community based programmes;

Functions of the Ministry of Education

36. To conduct awareness and education programme on ill effects of tobacco consumption for in-school and out of school youths.

Functions of the Ministry of Home and Cultural Affairs

37. Shall provide necessary support and cooperation to co-ordinate and conduct awareness programme on tobacco control at the Dzongkhag level

Functions of the Royal Bhutan Police

38. The Royal Bhutan Police have the responsibility to:

a) enforce the provisions under Section 3 of this Act.

(Note: This is interesting looking at last week’s news reports)

Functions of Road Safety and Transport Authority of Bhutan

40. To coordinate and conduct awareness programme on tobacco control in public and private transport system.

Functions of Civil Society Organization

41. To conduct awareness programme on ill effects of tobacco consumption in their locality and community.

Search and seizure

45. Any authorized officer shall have the power of search and seizure in accordance with the provisions of the Civil and Criminal Procedure Code of Bhutan.

47. The Board shall have the authority to impose fines on the offenders and may revise the fines (as given in the annexure) when necessary.

Now the much talked about provision(s) under penalty chapter:

11. No person in the country shall:

a) cultivate or harvest tobacco.

b) manufacture, supply or distribute tobacco and tobacco products.

c) sell and buy tobacco and tobacco products.

50. Any person who contravenes the provision of section11 (a) and (b) shall be punishable with a felony of the fourth degree as per the Penal Code of Bhutan.

51. Any person who contravenes the provision of section11(c) shall be punishable with misdemeanor if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanor.

52. Any person found smuggling tobacco or tobacco products shall be guilty of an offence of smuggling and shall be punishable with minimum sentence of felony of fourth degree.

53. Any person who contravenes the provision of section19 shall be punishable with a petty misdemeanor and shall be penalized as per the Penal Code of Bhutan.

19. Scenes depicting tobacco use including smoking should be strictly prohibited from domestic production of videos, movies and cultural shows except in educational clips produced for the purpose of health promotion.

54. Any person found with more than the permissible quantity for personal consumption under section 12 shall be guilty of the offense for smuggling and shall be punishable with minimum sentence of felony of fourth degree.

12. A person may import tobacco and tobacco products for personal consumption as per the quantity approved by the Tobacco Control Board.

 

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About Sangay Khandu

Sangay Khandu is a Member of Parliament, serving his 2nd term representing the people of Gasa Dzongkhag to the National Council.
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9 Responses to The Tobacco Control Act 2010 and important provisions in it

  1. drukpa says:

    for the record, it is important to point out that most people against the tobacco act are not specifically against the drive to stamp out smoking. Most people, smokers included with laud such a goal. The problem lies in the manner in which this law has been written. Very obviously, it has been written by non-smokers who don’t give two hoots about the rights of already addicted smokers.

    The only sensible part of the legislation is that it allows smokers to smoke (in designated areas). However, the other rules negate this benefit. You have to go to another country to buy the cigarettes because obviously there are no sellers within the country and recently I have heard that you can’t have a friend buy cigarettes for you. Having gone all the way to another country, you can buy only 10 days worth of cigarettes. Now which normal human being can meet these requirements of this law? You can’t be driving down to Pling every other day.

    The point is this: the fact that smokers are allowed to smoke still is laudable because it recognizes individual rights. Having gone that far, it is important to protect the rights all the way. Let them buy when they need and how much they want. The rest of the law you can keep the same. The only reason why there are still smugglers is because there are no legal sellers left in the country. It is now cheaper to pay taxes and buy cigarettes than buy from black marketeers. If you want to get rid of black marketeers, allow smokers to buy more than 200 pieces in a month, and for those posted in the centre of the country, allow them to purchase through a friend. Black marketeers will find their market eaten up and will soon disappear.

    Punishments
    Article 51 is ridiculous. How can you punishment somebody twice for the same crime, both as a felony and as a misdemeanour? it goes against universal standards of justice.

    The entire act is missing any reference to degree of crime. Every crime has degrees and the punishment must be proportional to the degree. If such a clause had existed, the judges would have had room to recognize that Sonam Tshering had very little tobacco and proportionately punished him. This claim that ‘law is law’ is a stupid statement to make. If you kill one person or a busload of people, there is a difference that is referred to as ‘counts of murder’, and each one will carry a capital sentence in many countries. Severity of crime makes a difference and the law needs to recognized it.

    Finally, the tobacco act should not be viewed in a vacuum as though no other problems or crimes exist. The punishments must be proportionate to the crime as normal human sensitivities can easily make out. Which is worse, a cigarette smuggler or a drug smuggler? Which is worse, a rapist or a cigarette seller or smoker? Which is worse, a pedophile or a cigarette smoker? The answers are obvious, yet the punishments that have been specified are totally the opposite.

    These are the things that must be addressed and immediately changed in our tobacco act or else the picture is going to get ugly very quickly.

  2. Dear Drukpa,

    Thank you for your genuine comments.

    First it’s good that we (tobacco users and non-users) alike appreciate the intent to stamp out the use of tobacco.

    Second it’s good you recognize the designation of places to smoke as being practical.

    To me the balance the Act brings is when it allows users to import tobacco for personal consumption. How much and and how little, has been left with the concerned agency to decide (the Tobacco Control Board). The law has not prescribed the limit and I see flexibility in making the allowable quantity reasonably justified without having to touch any clauses in the law. I also want to say that the law does not detail out any provision regarding a friend procuring it for you as long as the due tax and formality is completed. This also leads one to believe that it may be in the rules and regulations, which still remains far more flexible, not needing any change in the law itself.

    As for punishment under section 51, my understanding is slightly different.

    51. Any person who contravenes the provision of section11(c) shall be punishable with misdemeanor if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanor.

    A person who reveals the source should only be sentenced under ‘misdemeanor’ where as a person who fails to reveal source gets sentenced on 2 counts – section 11 (b) and (c) like you have mentioned in comparison. 11 (b) being supply of contraband & (c) being trading of contraband. So I see no conflict really but then again the courts would the freedom to apply principles of application of law.

    As for the severity and more importantly fairness in relation to other offences and crimes viz-a-viz penalty, YES I agree we may have to re-visit.

  3. Anuj Pradhan says:

    Thank you for linking the full text of the act.

    It is evident, after reading the Act, that most of the currently vocal supporters and detractors are quite misinformed.. or to be fairer, are not entirely well informed of the details and provisions of the Act. So it is very helpful to actually have the full text available..

    This act is actually quite admirable in that it shows the collective wisdom of the lawmakers with respect to the background, scope, control, education and responsibilities of the government bodies. However, the Act bitterly fails in the final sections on Enforcement and Offenses/Penalties (Chapter 10 & 11)..

    Here are a few examples:
    Section 43: (Powers of Authorized officer).
    This section gives almost unlimited powers to enforcement agencies to stop and or ‘raid’ locations based on ‘hunches’ – as evidenced by the language in the act where the operative term used is ‘believe’, as in, “where he/she believe tobacco.. is stored”.
    These sweeping powers given to law enforcement can lead to rapid and blatant misuse, can lead to profiling and extortion, and pave the way for venal individual to line their pockets heavily.
    Sec 43 (a) & 43 (b) are not clear cut and can lead to lots of misinterpretation and misuse.

    As pointed out by commenter above, section 50 & 51 are confusing and not clear cut. Section 11 (b) & (c) seem to overlap offenses (of trade) and thus sections 50 & 51 to indicate two different possible penalties for similar offenses.

    The Act states that penalties for manufacturing, growing,selling, distributing, smuggling tobacco products are all punishable with a minimum felony of the fourth degree as per PCB. The PCB states this as imprisonment of 3-5 years. There is distinction between the buyer, the pan-dokan seller, the large scale bootlegger, the professional smuggler, or the casual smuggler. The act could have recommended degrees of punishment based on the quantities involved. One cannot get 3-5 years for a pack of cigarettes as well as for a truckload of cigarettes.

    I agree with Drukpa above who argues that there is minimal provision for those who are already addicted to nicotine. It is a well researched and well documented scientific fact that nicotine addiction is one of the most egregious and most difficult one to break. The lawmakers should take that into account and introduce on a war footing scientific and public health measures to help curb and break the addiction.

    The Act mainly looks at preventing sale & punishing offenders, and just makes passing reference to implementation of education policies, health countermeasures and public health resources for the hundreds who are already clinically addicted to nicotine.

    Enforcement seems to have been stared by overzealous authorities without realizing that the first step to be taken here is education, rather than enforcement.

    The Act has provisions for amendment, and I am confident that with participation by the citizens, the lawmakers will be convinced that this Act needs to be further restructured and polished so that it considers personal rights for individuals as well as the wider public health context.

  4. Anuj Pradhan says:

    Ugh.. this’ll teach me to ‘post’ long comments without double checking.. Plz note foll. typos I made in the last comment..

    In para 6 I meant – “There is NO distinction between the buyer, the pan-dokan seller, the large scale bootlegger, the professional smuggler, or the casual smuggler.”

    2nd last paragraph, I meant – “Enforcement seems to have been started by overzealous authorities without realizing that the first step to be taken here is education, rather than enforcement.”

  5. drukpa says:

    well it is good to conclude that some revisit is essential to this tobacco act. As Anuj says, the fundamental problem with this act is that it has rushed to implementation without the necessary steps of education or support for cutting down. It also does not recognize that without the will to cut down, addicted smokers will not succeed in stopping smoking and the act is designed to send these people straight to jail. ‘Draconian’ describes this accurately.

    regarding section 51, let me change what i said. I agree now that there are two possible counts of offences, one of buying and the other of smuggling. But the only possible charge can be of smuggling if you have bought it in jaigaon. The act says no person IN the country shall buy or sell tobacco products, and it is obvious that the jaigaon shopper did not purchase it in Bhutan so there can be no charge against the person for the count of buying in Bhutan. He could be charged with possession of an illegal product, but the law has no charges against possession per se.

    The issue that is bigger than just the tobacco act is that majority rights should not infringe minority rights. and this is what is happening in this act. Smokers should have the right to smoke in the privacy of their own homes and have access to cigarettes without having to smuggle, which is what this act is forcing them to do.

  6. Ngawang says:

    The intend of this act is very good but the penalty of smuggling tobacco and tobacco product looks bit too harsh especially if one is smuggling just few packets. Three to five years non bailable sentence under fourth degree felony is really very sever but at the same time, just penalizing with monetary fine is really not adequate and not working to deter black market. We all know that black market was really booming in the country, and people really don’t mind taking risk as they can get rid off easily by paying fine, if caught.
    I was just wondering whether it is not possible to amend “fourth degree felony” under penal code of Bhutan-my suggestion is, a person charged with fourth degree felony can be imprisoned ranging from 6 months to five years instead of existing 3 to 5 years. Here, judge can decide the penalty based on amount, and whether one has smuggled intentionally for financial gain or out of ignorance of law. Since amendment of penal code of Bhutan is under process and will be discussed in coming sessions of NA and joint sittings, can’t this portion be amended? Of course, Honorable MPs should see how much it will effect adversely to other laws/acts, if this portion is amended……..just a wild suggestion by someone who doesn’t have legal background.

  7. drukpa says:

    the other law that is unjust, a law that was imported overnight into a traditional culture, is the law regarding underaged sex. When it is almost traditional for girls to be married off way younger than the imported ‘age of consent’ law, don’t you think they should have spent much more time and effort in spreading the info about the new law? Now we have a young man in jail for a long time for something that was always considered acceptable. And if the police get serious and start digging around the countryside, there will be too many people put behind bars. So this law needs to be amended as well.

  8. Thank you drukpa:

    Although the law does state the illegality of trading the tobacco in the country, once it has been smuggled into the country to be retailed, a person may still ‘buy’ tobacco products and in which case, revealing the source leading up to prosecution would qualify the ‘buyer’ for a penalty of misdemeanor resulting into the prosecution of the actual culprit – the smuggler with fourth degree penalty. Whereas when one buys tobacco products from outside of the country and fails to or does not intentionally declare and pay taxes, the buyer/importer then becomes liable for smuggling. Anyway, the point is, I see a lot of sense in questioning this law from the perspective of the principle of proportionality and it is along this line that I agree in seeing merit in re-visiting.

    Thank you Ngawang:

    I realize you agree with me and drukpa with the intent of the law, thank you. Also, you realize simply imposing fine may not necessarily deter ‘smugglers’ from engaging in it; I think we have all seen the efficacy it has had in the past (work began as early as 1998) with advocacy and awareness on the ill effects and health hazard tobacco causes to human health. I was just trying to relay my idea of agreement on perhaps needing a re-visit simply on the reason of proportionality.

    Thank you for your suggestion regarding the penalty by amending the Penal Code of Bhutan. In my opinion too, amending the Penal Code will have far more impact than desired and so it would be much simpler to re-visit the Tobacco Control Act and for that there are processes that have been set in motion I suppose.

  9. drukpa says:

    well i have to repeat my earlier point. A person who buys cigarettes abroad and doesn’t declare can be prosecuted for smuggling but cannot be prosecuted for buying in the country. It is therefore incorrect for Sonam Tshering to be found guilty on both counts by the court. And so the law is badly drafted when it concludes that “Any person who contravenes the provision of section11(c) shall be punishable with misdemeanor if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanor.” A person cannot be guilty of both purchasing in Bhutan and smuggling from India for the same case! These acts are mutually exclusive and it has to be either one or the other. If they want to penalize the fellow for not divulging his source, then he can be charged for aiding and abetting, for which provisions already exist I’m sure in the penal code.

    Also, isn’t the basic rule of justice that you are innocent until proven guilty? This assumption of the guilt of smuggling just because he is not revealing his source is totally unjust.

    In Sonam Tshering’s case it is much worse because he did reveal that his source was in India. So the written law itself absolves him of the charge of purchasing in Bhutan.

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