Judges throw more light into retrospective active application of the law
While the amended Tobacco Control Act might have come in a bit too late for 63 people already sentenced under the previous one, it stands to benefit 19 others.Judges have further clarified that the amended law will apply ex post facto or retrospectively for those whose cases remain undecided.Of the 84 people who fell prey to the previous Act between 2010 and 2011, five have appealed to higher courts following judgments from the lower ones and 14 cases are still under trial .“Cases still under trial and pending will benefit from the amended tobacco Act,” a judge said.For the rest, judges said since their cases have already been decided, there was no appeal and no retrospective application of the new law.Their only appeal, judges said, was to the King who had the authority to grant amnesty, pardon and reduction of sentences.
Some lawyers said retroactive application of law could not be entertained in the country just as it was considered unacceptable internationally.
As many as 25 nations across the globe including Australia, Japan, New Zealand, Sweden, United Kingdom and the US have prohibited to apply laws retrospectively, most of them by the Constitution.
“It’s illegal,” a lawyer said. “Just as you can’t have the penalty increased or made more severe as the law changes, you can’t reduce it or have it made milder.”
National Council’s Kuenlay Tshering said there was no question of the new Act being applicable retroactively when it, like any other statutes, was adopted after the Parliament’s passing of it.
“Anyone, or criminals serving prison term can’t have their prison term shortened following amendments in a law,” he said.
A former judge who today runs Sayang Law Chambers, a private legal firm, Shera Lhundup said while the judiciary had no authority to decide whether to apply the new law retroactively, it should have been the Parliament that should have made it clear if the new Act should be applied so.
Another legal expert agreed the courts generally did not give a statute retroactive application unless it was intended by the legislature and its intent expressed clearly in the law.:(
I feel sickened by the idea that this was a long hard fight for the people of Bhutan and that it makes no difference to all the people who have already been sentenced under the tobacco control act.
And so many people only get information thirdhand,me included.
I wonder if the King will be inclined to show these poor people mercy.