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Bhutan welcomed the New Year in a somber mood with a realization that it has created a space for more possible criminals.

The culprit is the new regulation on tobacco made effective by the Tobacco Control Board which in actuality is the Bhutan Narcotic Control Agency (BNCA).

There is no doubt that the new rule has a noble cause.

But the way in which it has been interpreted and enforced by the Tobacco Control Board (TCA) undermines several ground realities.

To put it simply, the rule, in its present form, is unrealistic.

Let us review the rules.

It says a smoker, if caught will be fined instantly with Nu 500 on the spot. Then he has an option to show the receipt authenticating that he has paid taxes for it. If he doesn’t have the receipts, which is more likely to be the case, he has two options. He can reveal the shop he bought it from or choose to hide it.

If he reveals the shop, he will still be charged for a case of misdemeanor and be liable for buying the cigarette illegally and be liable for a prison term of one to three years. He can choose to bail out himself and pay the monetary compensation.

If he doesn’t reveal the shop, then the case intensifies with the new interpretation of the rule which makes him liable for smuggling, a criminal offence and a felony of the fourth degree. It is a case where one cannot get bail and has to go behind bars for three to five years.

The rule raises several issues. First, the rule is designed to control smoking and it can more aptly be defined as an anti-smoking rule rather than a tobacco control measure. The rule is almost silent on people who consume tobacco in any other form.

Second, the rule makes every smoker in the country a potential criminal.

Third, the attempt of the TCA to equate a smoker without a tax receipt to a criminal charged of smuggling is too extreme. Here, it is necessary to compare it with other criminal offence of the same degree which includes human trafficking, abduction, rape, arson, robbery, impersonating a uniformed personal, torture, and riot among others.

It means that every cigarette smoker is equal to a kidnapper, robber, rapist, torturer, or a human trafficker.

It is also intriguing to note that many other severe crimes have a lesser penalty including illegal abortion, complicity in suicide, illegal buying and selling of human organs, assault, battery, child abuse, blackmail, prostitution, black marketing, harassment, and computer pornography. Most of these cases are classified as misdemeanor cases warranting a one to three-year prison term. A smoker caught without a tax receipt is charged for a misdemeanor case even if he reveals the shop he bought it from which makes him liable for the same penalty as the above mentioned cases.

This means that a smoker caught without a tax receipt and even if he reveals the shop is equal to the one buying and selling of human organs, blackmailing, prostitution or promoting pornography.

The interpretations are not less than disturbing.

Fourth, the attempt of the new rule to equate the act of smoking to a fourth degree felony also contravenes with the Penal Code of Bhutan which clearly defines the punitive measures for selling tobacco products and also for consuming it.

Articles 386 and 388 of the Penal Code of Bhutan state that the use and sale of tobacco or other health hazard substance shall be a “violation”. A violation is the lowest category of offense for which the Code says one shall be charged a daily minimum wage rate for a maximum of 90 days.

Thus, the new rule contravenes these clauses of the Penal Code when it compares a smoker to a smuggler. By extension, the new rule calls for these clauses of the Penal code to be revisited.

Interestingly, the Penal Code classifies the offence of public intoxication to be just an offence of violation. It gives space for the new tobacco rule to be interpreted to mean that smoking is the greater social evil.

The new rule also comes against the backdrop of so many bans failing to make an impact. It thus has the potential to pose a political dilemma for the elected government which will be severely criticized if it is not implemented seriously and even if it does, it will still result in a lot of social complications.

It goes without saying that if the government seriously implements the rule, a lot of people will be put behind bars. It will raise a series of issues and will affect not only smokers but the family members of the smokers put behind bars.

While it is necessary to have an anti-smoking rule, it would be much more practical to impose heavy monetary fines on the spot than trying to send people behind bars. Moreover, there is a need for strong advocacy and campaign necessary against tobacco. Instead, the Tobacco Control Board has rather stamped the tag of a criminal on all smokers in the country and assumed that they are not law abiding citizens. The move can have severe repercussions.

The above post first appeared as an editorial in Business Bhutan on January 8, 2010