Apologise and appeal

One year +

Today, we celebrated traditional day of offering.

Today is also exactly one year since Sonam Tshering was detained by officials for illegally possessing Nu 120 worth of Baba khaini. Sonam Tshering has already been in jail for one full year.

So today, on traditional day of offering, I thought about how we, parliamentarians, should offer our services to Sonam Tshering and the many others like him who continue to suffer under the oppressive Tobacco Control Act.

First we should apologize. We should apologize and take full responsibility for arrogantly (and foolishly) passing a law that quickly subjected so many of our people to untold pain and suffering.

Then we should appeal. As soon as the Tobacco (Amendment) Bill comes into force, we –  members of the National Council, the ruling party and the opposition party – should collectively appeal to His Majesty the King to grant amnesty to the people who have been incarcerated unjustly because of our foolhardiness.

Sonam Tshering and others like him are in jail because of us. The least we must now do is try our best to get them out.

In action or inaction?

The National Council and National Assembly will meet in a joint sitting tomorrow to discuss two important matters: the Tobacco Control (Amendment) Bill, and state funding for political parties.

On the first matter, the Tobacco Control (Amendment) Bill, I’m delighted that the National Council has come through. Their recommendations aim to amend the draconian law to make it sensible and implementable. Naturally, I agree with their recommendations.

The discussions are not going to be easy. They’re going to be difficult. And complicated. If, at the joint sitting, we agree on the National Council’s proposed amendments, the current ban on the sale and purchase of tobacco products will lifted in favour of taxation to reduce tobacco consumption in our country.

If we agree on the National Assembly’s proposed amendments, the current ban on the sale and purchase of tobacco products will continue, but the penalties for breaking the law will be spread according to the quantity of tobacco involved.

But if we do not reach an agreement – that is, if neither proposal, nor one that the joint committee comes up with by tomorrow, is supported by at least two-thirds of the MPs present and voting – the amendment bill will be declared a “dead” bill. And we will be stuck with the current Tobacco Control Act.

Democracy in action. Or democracy inaction. We’ll see tomorrow.

Controling tobacco control

There's hope

The National Assembly has passed the Tobacco Control (Amendment) Bill. 39 MPs voted for the amendment. One MP voted against it. And I abstained.

I believe that the proposed amendments do not adequately address the shortcomings of the Tobacco Control Act. That’s why I didn’t vote for the amendment. But I couldn’t vote against the amendment either, as doing so would amount to supporting the existing Tobacco Control Act. That would be unthinkable. And so I abstained.

Here’s the main difference between the Act and the amendment: while the existing Act condemns all offenders to prison, regardless of the quantity of tobacco involved, the amendment staggers the penalties for illegal possession of tobacco products based on the quantities.

So, for instance, if you’re caught with less than the “permissible quantity” of 200 sticks of cigarettes or 150g of khaini you’ll be let off with a fine, which will be set by the tobacco control board. (Sorry, you won’t get to keep the contraband.)

If you’re caught with more than 200 sticks of cigarettes or 150g of khaini, but less than three times that “permissible quantity”, you’ll be slapped with a misdemeanor. A misdemeanor carries a prison sentence of one to three years. But the sentence is compoundable. So you could pay thrimthue of Nu 36,500 (at today’s wage rates) instead of serving time in jail. But be careful. If you are a civil servant, according to the civil service rules, you’ll lose your job and your benefits if you are found guilt of a misdemeanor.

And if you’re caught with three times the “permissible quantity” – that’s 600 cigarettes or 450g of khaini – you’ll receive a felony of the fourth degree. That means that you’ll be sent to jail for 3 to 5 years. A felony is not compoundable, so you will not be able to pay thrimthue. You will have to serve your jail sentence.

If the amendment sounds better than the current draconian Act, it is. Yet I didn’t I support it. Here’s why:

First, the amendment, like the existing Act, continues to allow people to legally import tobacco. Travelers, and those fortunate to live in bordering towns, can continue to legally import tobacco up to the “permissible quantity”. The way I see it, if we’re going to allow some people to purchase and consume tobacco legally, we should allow other people to do so too.

Second, the amendment, like the existing Act, does not recognize the simple fact that prohibition has never worked and will not work. That’s why a black market quickly (and effectively) established itself in spite of the draconian provisions of the existing Act. That’s why, in the year since the Tobacco Control Act came into effect, many people took their chances despite the stiff sentences in it. Of the many, 84 people got caught. And of them, 39 people have already been sent to jail.

If the amendment goes through, a minority of us will continue to be able to procure and consume tobacco legally. But for the most of us, if we consume tobacco, we will continue to be doing so illegally. That would make us criminals. And because the penalties have now been staggered, expect a bigger black market; expect many more criminals.

There’s no doubt that tobacco consumption goes against our beliefs and our traditions. And there’s absolutely no doubt that tobacco consumption is bad for our health. So we must reduce the amount of tobacco we consume, we must smoke less, and we must chew less khaini.

But I don’t see that happening through the Tobacco Control Act or, for that matter, the proposed amendments. Instead, we should allow the sale of tobacco products. But we should tax the products sufficiently to discourage its indiscriminate consumption. And we should limit the places where tobacco products are sold. We should also set and enforce a sensible minimum age to buy and consume tobacco. And we should make all public places completely tobacco free.

But most importantly, we should educate ourselves about the ills of tobacco consumption. And to educate ourselves meaningfully, all of us – teachers, religious heads, doctors, journalists, businesses, politicians, celebrities, parents, all of us – must work together, hand in hand, to convince ourselves, and then our children, that smoking and chewing khaini may not be worthwhile.

The Tobacco Control (Amendment) Bill is an urgent bill. So it will be discussed in the National Council in the next few days. I remain hopeful that we can correct the excesses of the Tobacco Control Act in a meaningful manner, one that is both logical and implementable.

Thimphu’s lifestyle

In 2007 the Ministry of Health conducted a survey in Thimphu to assess the state of non-communicable diseases in the capital. The results showed that we live dangerously. For example:

  • One out of every five adults consumed tobacco – they either smoked or used smokeless tobacco.
  • One third of the adult population consumed alcohol regularly. One third of them were associated with hazardous drinking and binging.
  • Most adults did not exercise to meet minimum health requirement. More than three-fourths of adults did not get any exercise at all during their free time.
  • Two thirds of the adult population did not eat adequate fruits and vegetables.

The results also showed that our sedentary and indulgent lifestyles were already causing needless suffering. For instance:

  • One out of every ten adults was receiving treatment for hypertension. One fifth of the adult population had raised blood pressure.
  • One tenth of the adult population was either diabetic or suffered immediate risk of developing diabetes.
  • Over half of the adults were overweight.

That was the story back in 2007. I wonder how it would look like today. It’s time for another survey, the results of which will probably force us to take non-communicable diseases seriously.

But some data is already available. The following table, prepared by Dr Gampo Dorji of the Department of Public Health, shows a disturbing trend.

Think about Lhab Tshering

Lhab Tshering has been in detention since 31st January. On that fateful day, he was caught with 64 packets of chewing tobacco (Baba khaini) at the Chunzom checkpoint. He didn’t have a receipt to prove that he possessed the khaini legally. So he was charged for smuggling tobacco under the Tobacco Control Act.

Yesterday, the Thimphu District Court, found Lhab Tshering guilty of smuggling tobacco, and sentenced him to jail for three years.

Lhab Tshering, a driver, had purchased the khaini on 26th January, while repairing his vehicle, a trailer, in Jaigaon, India. He had paid Nu 200 for the 64 packets of khaini, each of which contains 10 grams of tobacco.

In court, he argued that the tobacco was for personal consumption. And he pleaded that he was not aware of the tobacco ban, which had, in fact, been in effect for barely a month.

The Office of the Attorney General, his prosecutors, maintained that ignorance of the law is not a justifiable defense. They are right. But they went on to elaborate that the Tobacco Control Act was:

… enacted by the Parliament which is represented by the elected members of all the people in Bhutan. This is enough to state that he is part of law making process because he is also a voter who elected the member from his constituency and thus he is also represented in the parliament in the enactment of the Act.

Incredible! The OAG, in its convoluted way, seems to blame Lhab Tshering for passing the law that got him into trouble.

Okay, Lhab Tshering may have voted. (And if he did, he most probably voted for the DPT.) But he can’t be held responsible for the laws that his representatives make. That responsibility – especially for crafting laws that harass people instead of benefiting them – lies solely and squarely with his representatives in the Parliament.

Anyway, Lhab Tshering has been sent to jail. And he doesn’t know what to do. In fact, there’s almost nothing he can do.

But the question is: what can we do about it?

At the very least, we can pause and think about Lhab Tshering.

Think about Lhab Tshering, a fellow citizen. He’s being sent to jail for three whole years for possessing a mere 64 packets of khaini worth all of Nu 200.

Think about Lhab Tshering, the sole bread earner in his family. He earned Nu 7,000 a month as a driver. But since his detention, five months ago, he hasn’t received a salary. And he won’t be able to do so for the next three years.

Think about Lhab Tshering, the young husband and father. His wife is 20 years old. And his son is just two. They’ve had to leave their home in Khuruthang, and are now living with Aum Choden, Lhab Tshering’s distant relative, in Thimphu. Yangchen Lham, Lhab Tshering’s wife, has no money, so she and her son are completely dependent on Aum Choden.

Think about Lhab Tshering, Aum Passam’s only “capable” child. She lives in a bamboo shack in Patale, Tsirang, with two of her children, both teenagers. She does not own any land, and, until recently, was supported by her son, Lhab Tshering.

Think about Lhab Tshering, Tshering Lhamu’s and Phub Dorji’s older brother. Tshering is in Class 3, and Phub is in Class 5. They go to school in Khuruthang and, until recently, they lived with their brother, Phub Tshering. While undergoing trail, Phub Tshering has had to request his Aunty, Wangchuk Dema, a gardener at Ugyen Academy, to take care of Tshering Lhamu and Phub Dorji.

Think about Lhab Tshering, a young man, criminalized by the Tobacco Control Act, and ask yourself if there’s justice in that law.

Think about Lhab Tshering, your fellow citizen, and demand that his representatives in Parliament – and your own representatives – correct this injustice.

Utter nonsense

The National Assembly’s live TV broadcasts are proving useful. One observer, for instance, a senior civil servant, followed the recent debate on the Anticorruption Bill, and noticed that I “didn’t utter a word” during the discussions. She spoke to Kuensel about it, which reported that:

A senior civil servant said the opposition leader was very emphatic about the severity of the tobacco Act’s penalty that he went to the extent of hiring a lawyer for the first Bhutanese to be convicted under the Act, pro bono.

“He didn’t utter a word when members were deliberating the corruption amendment bill,” she said.

Yes, the senior civil servant is correct when she says that I was “emphatic about the severity of the tobacco Act’s penalty”. Yes, I objected to the excessive penalties for seemingly minor infractions provided in the Act. But I, like most of Bhutan, completely agree with the aim of the Tobacco Control Act, which is to reduce – perhaps even eradicate – the consumption of tobacco in our country.

And yes, the senior civil servant is correct when she says that I “didn’t utter a word” when we deliberated the Anticorruption Bill. I did not speak – either for or against the Bill. But I, like all of Bhutan, completely agree with the aim of the Anticorruption Bill, which is to reduce – hopefully even eradicate – corruption in our country.

Why didn’t I speak? I didn’t because I couldn’t. And I couldn’t, because I was not given the floor on the two occasions that I put my hand up.

The speaker probably did not see me. But had he noticed my hand go up, and had he given me leave to address the Parliament, I too would have argued that the penalties proposed in the Anticorruption Bill were excessive, and I too would have supported the revised penalties.

The senior civil servant seems to insinuate that I should have opposed the revised penalties. I couldn’t. Not because I didn’t get to speak. But because this time, I actually agreed with the majority. Even if I were given floor, I would have just recorded my support for the revised penalties.

That, incidentally, is why I voted “No” for the Tobacco Control Bill, and “Yes” for the revised Anticorruption Bill.

I hope that the senior civil servant in question will now see some consistency in my actions. I do not, and I cannot, oppose for the sake of opposing.

But were the penalties that were originally proposed in the Anticorruption Bill excessive? You decide…

According to the original draft, the penalty for all bribery and embezzlement offences was:

A person guilty of an offence under this section shall, on conviction, be liable to imprisonment for a term not less than five years to not more than nine years.

In other words, almost all offenses were originally categorized as third degree felonies, regardless of the magnitude of offense. So if a person is caught giving a Nu 100 bribe, that person is liable to spend five years in jail. But if a person is caught offering a Nu 13 lakh bribe – or for that matter a Nu 13 million bribe – that person is liable to spend a maximum of nine years in prison.

The penalties did not differentiate between the severity of the offenses. And while the penalties for small offenses were excessive, those for very big offenses were exceptionally lenient.

So the Parliament, in a joint sitting, revised the penalties as:

An offence under this section shall be a misdemeanor or value based sentencing, whichever is higher, subject to maximum of a felony of Second degree if the value of the amounts involved in the crime exceed the total amount of minimum wage at the time of the crime for the period of 35 years or more.

Under the revised penalties, a person caught offering a Nu 100 bribe could be sent to jail for 1 to 3 years. But, on the other hand, a person caught offering a Nu 13 lakh bribe could now be sent to jail for 9 to 15 years, not just between 5 to 9 years as was originally proposed.

The new penalty structure is more reasonable. And it’s more logical. As such, it should be a much more effective weapon in our war against corruption.

That’s why I did not oppose it. And that’s why I voted for it.

Digging deeper

Yesterday, the government released the Tobacco Control Rules and Regulations. The rules, which come a week after the government had issued guidelines to relax the implementation of the Tobacco Control Act, have made matters even more complicated.

According to the rules, we will not be sent to jail for attempting to bring tobacco into the country without declaring it or for possessing tobacco products. Instead, we’ll be let go with a warning or penalized in line with Sections 86, 87 and 90 which state that:

86.     If a person tries to bring permissible quantity of tobacco and tobacco product without declaring at the authorized port of entry, the tobacco and tobacco product shall be confiscated and the person shall be warned in writing.

87.     If a person tries to bring permissible quantity of tobacco and tobacco product without declaring at the authorized port of entry for the second time and thereafter, the tobacco or tobacco product shall be confiscated and the person shall be imposed a fine of minimum daily wage rate of one year.

90.     If a person is in possession of permissible quantity of tobacco and tobacco product, which is brought into the country without payment of tax for personal consumption, the person shall be imposed a fine of Nu. 10,000/- and the tobacco and tobacco product shall be confiscated.

But there’s a problem: These rules may say that we won’t be sent to jail, but the Tobacco Control Act says that we will. The Act is quite clear on this – that’s why the judiciary has already sentenced several of our fellow citizens to prison.

And there’s another problem: These rules say that we won’t be sent to jail, but they are immediately undone by Section 92 of the rules itself according to which:

92.     If a person violates section 11(a), (b) and (c) of the Act, he/she shall be charged as per the provisions of the Act, irrespective of the quantity of tobacco and tobacco product.

Section 11(c) of the Act prohibits us from buying tobacco. And, according to the Act, the offense for doing so is a misdemeanor (1 year to 3 years in prison) but only if we reveal the source. If we can’t reveal the source, a felony of the fourth degree (3 years to 5 years in prison) is added to the misdemeanor sentence.

The Tobacco Control Act is draconian. So we must correct it; we must correct the extreme penalties prescribed by the Act. But developing rules and regulations intended to circumvent the provisions of the Act is not the answer.

The answer is to amend the oppressive Act. We, members of Parliament, must accept that the Tobacco Control Act is causing unimaginable hardship and suffering to our fellow citizens throughout the country. We must amend the Act.

 

Facebook strikes

Listen to them!

After several friends suggested it, I’ve added a new page called “News clips”. The idea is to provide links to news articles, especially to critical ones, that talk about what the opposition party and I have been doing.

The first link is to a story by Kuensel. It’s about the growing influence of social media in Bhutan, a discussion that took place during the recent Mountain Echoes literary festival.

Social media has already made remarkable inroads in Bhutan. In past five years, there’s been a proliferation of discussion forums, social networking sites and blogs. And some of them – like Bhutantimes.com, Nopkin, Kuzu-Bhutan Weblog, Kuzu.net and several Facebook groups – have emerged as powerful ways of creating, sharing and discussing information.

Foremost among them is Amend the Tobacco Control Act, a Facebook group created by Kinley Shering, dedicated to discussing the tobacco law. The group’s 2,252 members have already logged 1,417 posts, and both, numbers of members and posts, keep increasing each day.

The tobacco group’s discussions are diverse, vibrant and persistent. And its members readily express their opinions and vent their frustrations. This, however, is not exactly new, as online discussion forums, like Bhutantimes.com, also host lively discussions.

But Amend the Tobacco Group is different in several other ways. One, and most obviously, the group’s members are not anonymous – Facebook profiles generally have real names along with real addresses, photographs, email IDs and even telephone numbers.

Two, the discussions are focused on just one topic, tobacco, and have some order and discipline – members are not unnecessarily nasty, abusive or profane.

And three, the group has organized real measures to back up their virtual demands. First, they collected signatures – online and off – to petition for an amendment to the Tobacco Control Act. That has not worked, so now they have begun to write letters to their respective MPs and to publish those letters on Facebook.

All this is powerful stuff. And potentially dangerous too.

If the group is ignored, if their voices remain unheard, and if frustration grows, emotions could escalate and spill onto Thimphu’s streets. That would not be good. And that must not happen.

So the government would be well advised to take the group seriously. They should join the group and explain their position. They should take part in the discussions, listen to the grievances, and spearhead common solutions.

In a healthy democracy, citizens must be able to express themselves – individually and collectively. Facebook has provided a platform to do so. We can protest, rally, picket and demonstrate online, on Facebook. But for that to work, the government must also take part, and ensure that the voices on Facebook groups are heard.

The government should use Facebook, not ignore it. That’s why I say: “Rather than taking to the streets, take it to Facebook!”

Stop digging!

Listen...don't dig

Denis Healey, a British politician, once famously said: “When you’re in a hole, stop digging.”

Digging. That’s what the government is doing by issuing guidelines to relax the implementation of the controversial Tobacco Control Act. According to the guidelines:

Any Bhutanese bringing in tobacco products, more than the permissible quantity for personal consumption through designated port of entry, will not be directly charged for smuggling, but would be levied a 200 percent tax.

The excess quantity would be seized, the citizenship identity card number noted, so that the offender would be charged on the second attempt to bring in more than the prescribed limit.

Why do the guidelines amount to “digging”? There are several important reasons:

First, the government does not have the authority to grant exceptions to the Tobacco Control Act. According to the Act, any person found selling or buying tobacco products “… 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.”

The law is straightforward. And the government must not undermine it. Doing so, like granting exceptions to first time offenders – letting them off with a small fine – could amount to interfering in the judicial process.

Second, why did the police draft these guidelines? That’s not their job. It’s the Bhutan Narcotics Control Agency’s job to make rules for the implementation for the effective implementation of the Tobacco Control Act. And why did the cabinet approve the guidelines? That’s not their job either. Their job is to ensure that the rules made by the BNCA are in line with the provisions of the Tobacco Control Act.

And third, what happens to the 27-odd people already under detention. Some of them are being tried. And some, as we know, have already been incarcerated.

Through the guidelines, the government has now admitted that possessing illegal tobacco for personal consumption is a trivial offense, one that should carry a fine of only 200% of the cost of the tobacco. If so, amend the Tobacco Control Act.

The 7th Session of the Parliament has just begun. So if the government proposes an “urgent bill” to amend the Act, there’s enough time to discuss and amend the Act in this session itself. Otherwise, at least begin the process in this session. In the meantime, get BNCA to take another look at their rules. And stop digging.

Going out of control

The Tobacco Control Act is going out of control.

The Thimphu district court sentenced Gelong Sonam Tshering, a monk, to 3 years in prison for possessing a mere 48 packets of chewing tobacco. He appealed to the High Court. But the High Court has upheld the 3-years prison sentence.

Countless others – I’ve lost count … really – are in detention or undergoing trail in various parts of the country. We’re told that there are a couple of tobacco smugglers among them. But all the others were caught with small amounts of tobacco, obviously meant for their personal consumption.

And today, the Paro district court sentenced three men to jail for three years each. Their crime: they were caught smuggling ten packets of cigarettes.

Ten packets of cigarettes, just ten packets – that’s how much most smokers consume in ten days – and three people are going to jail for a total of nine years!

I called the Tobacco Control Act draconian. It’s much worse. It’s utter madness.

Amend the Tobacco Control Act.  And stop this madness before our people go out of control.