By Manel Fonseka
When looking at how other countries have treated the death penalty1, the approach to it, and to constitution-making, by Bhutan, is of particular interest. After a long period of suspension of capital punishment, and many debates in the National Assembly, it was finally abolished by royal decree on 20 March 2004 and is prohibited by the Constitution of July 2008. The concern to abide by Buddhist spiritual values is evident.
Buddhists constitute 75% of the population of Bhutan. Article 3(1) (Spiritual Heritage) of the Constitution states: ‘Buddhism is the spiritual heritage of Bhutan, which promotes the principles and values of peace, non-violence, compassion and tolerance.’
The Constitution also says ‘It shall be the responsibility of religious institutions and personalities to promote the spiritual heritage of the country while also ensuring that religion remains separate from politics in Bhutan. Religious institutions and personalities shall remain above politics.’ Under Fundamental Duties, Article 8(3) states: ‘A Bhutanese citizen shall foster tolerance, mutual respect and spirit of brotherhood amongst all the people of Bhutan transcending religious, linguistic, regional or sectional diversities.’
Although the last occasion when capital punishment took place in Bhutan was in1964, the death penalty remained on the statute book. It is interesting that in 1998, courts sentenced a multiple offender to life imprisonment, despite calls in the National Assembly for the death penalty to be awarded in such a situation.
The judiciary came under heavy criticism at the time. In explaining the life sentence ‘a judiciary official stressed that the “law [does] not exist merely to impart penalties. The judiciary aim[s] to correct and rehabilitate wayward individuals as [a] means to human and social development.’ It would seem that the judiciary had a more enlightened view of its role than the legislators of the time.
Capital punishment was eventually abolished in 2004. The abolition received constitutional endorsement in 2008, and it is clear that this move was based on Buddhist values. A new Constitution provided that ‘The State shall strive to create conditions that will enable the true and sustainable development of a good and compassionate society rooted in Buddhist ethos and universal human values’ (Constitution of 2008, Principles of State Policy Article 9(20).
The Constitution further provides that ‘A person shall not be subjected to capital punishment’ and that ‘A person shall not tolerate or participate in acts of injury, torture or killing of another person…and shall take necessary steps to prevent such acts.’ (Article 7(18) and Article 8(5).
Perhaps, we have something to learn from Bhutan’s concern for the proactive role of Buddhism, the attempt to observe it in deed as well as spirit.
1 e.g. Cambodia abolished it in 1989, and the Constitution of 1993 states ‘All people have the right to life, freedom and personal security. There shall be no capital punishment’ (Art. 32).
- ‘Transgressing the Law: Karma, Theft and its Punishment’ (2008).
- ‘Severing the Silken Knot? Buddhism, Constitutionalism and the Dual System in Bhutan’ (unpublished paper 2006), by Richard W. Whitecross.