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The amendment of Tobacco Control Act of 2010 by the eighth session of Parliament will not be applied retroactively. Which means 63 people, who have already been convicted and sentenced to prison under the act, will not benefit from the amendment to the act.

Currently, there are 84 cases of people contravening the tobacco control act. Five have applied to higher courts while 14 are still under trial. Thirty-nine people are serving prison sentences of three years and more and 24 will serve sentences of less than three years.

While some people think that the amended act should be retroactively applied to all the people charged and convicted under the act, legal experts explain that it is a fundamental confusion. They say that people who are tried and sentenced under the previous law have no chance to reopen their cases, which means they have to serve their sentences.

“Since their cases have already been decided, there were no appeal and no retroactive application of the new law,” said a judge, adding that the amended act will apply retrospectively for only those whose cases remain undecided.

Thus, 19 people, who have been charged under the act but not yet been convicted, will benefit from the amended act.

Mongar MP Ugyen Wangdi, the chairperson of the legislative committee of the National Assembly, said that while the judiciary has the power of interpreting laws, he wondered if it could decide whether a law could be applied retroactively.

MP Kuenley Tshering of the National Council said that there was no question of the new act being applicable retroactively. “People serving prison term can’t have their term shortened following amendment of a law,” he explained.

But some people point their fingers to the lawmakers. They say legislators’ hand in enacting the tough act has led to some people being victimized. “What was that (the previous act)? Was it a trial show?” asked a civil servant, who did not want to be named. “People [those convicted as well as those under trial] committed the same crime but the judgment will be different.”

The family members of those convicted under the act, meanwhile, cry foul of the whole process of enactment of the severe act which has now become less severe.  “Ironically, people who were involved in corruption – embezzling huge amount of public fund – roam freely,” a family member of a convict said.

Some people say that the only hope for the people convicted under the tobacco control act lies with the Throne. The constitution empowers His Majesty the King to grant amnesty, pardon and reduction of sentences.

The amended act allows tobacco consumers to import 300 sticks of cigarettes instead of 200 sticks as prescribed earlier and 400 sticks of bidi instead of200 sticks.

Now a person can bring into the country 50 pieces of cigar instead of 30 and 250 grams of other tobacco and its products instead of 150 grams.

If a person carries more tobacco than the prescribed quantity, he or she is liable to pay fine. A person who possesses tobacco beyond permissible quantity but less than three times will be charged with pretty misdemeanour. A person would be charged with the fourth degree felony if he or she possesses tobacco and its products more than four times the permissible quantity.

In the meantime, while the amendment of the act has made tobacco consumers, mostly under dwellers, happy it hasn’t gone down well with the rural folk.

“The amended law is fair, and I am very grateful to our lawmakers for the amendment,” said Tshering Penjor, an accounts officer with a private firm. However, a farmer from Mongar said that the amendment was unnecessary and that it has taken the tooth off the act.

A smoker in Thimphu said while he knows that the consumption of tobacco is not good, in a democracy, tobacco consumption is a question of fundamental individual right. Earlier, anti-tobacco act activists called the tobacco control act ‘draconian’ even as the rural population appreciated it.

In Hungary, a complete ban on smoking in all working and public places came into force form January 1, 2012, after the amendment of the 1999 tobacco control act adopted by the Hungarian Parliament in April, 2011.

In the last Parliament session, of 69 members present, 68 voted in support of amendment of the tobacco control act. One missed his chance to vote.

The first person to be convicted under the tough tobacco control act was a monk, who is currently serving a three-year prison term for carrying 480 grams of chewing tobacco worth Rs 96 in India.