The police has returned Penjore’s phone on June 11, but he still feels his rights were violated
By Tashi Namgyal
Although out of detention, Penjore is still claiming that his human rights were violated by the police. Penjore was what he claims ‘arbitrarily arrested’ on May 6 by the Royal Bhutan Police (RBP) following a complaint from the Office of the Attorney General (OAG), and was detained for 16 days.
“My arrest without warrant was illegal and in direct violation of my human rights,” Penjore said. “RBP cannot arbitrarily arrest and detain me without any crime charges against me.” He demanded that the police can detain him only if the court proves him guilty and issues an arrest warrant. His wife also shared the same concern at the police station when he was detained.
Article 7, Section 16 of the Constitution states that “A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.”
Penjore also highlighted about this issue on May 7 infront of the judge when he was taken to Thimphu Dzongkhag Court for remand hearing. It was the same day when the police seized his phone too.
“The incident has already left not only me, but my entire family members in distress and mental agony,” he said.
Penjore has also sought the intervention of Parliamentary Human Rights Committee (PHRC) after the committee visited him in the detention centre on May 11.
“Win or lose, it doesn’t matter to me. My wish is only to prompt and alert everyone about basic human rights and what is meant by its violation.”
Article 7, Section 20 of the Constitution explicitly states that “A person shall not be subjected to arbitrary arrest or detention.”
The OAG earlier reiterated that the detention of Penjore was adhered to all due process of the law. It said that while Article 7(20) of the Constitution ensures no person shall be subjected to arbitrary arrest and detention, the Civil and Criminal Procedure Code expressly prohibits pre-trial detention that extends to 49 days for cases of Misdemeanor and below offenses and 108 days for serious offenses and felony on third degree and above.
According to a former Supreme Court judge, arrest without warrant can be done under certain circumstances only, not all the time. That includes seizure also. The police need to get an arrest warrant within 24 hours if they are compelled to arrest a person during odd hours or odd situations where there is danger of flight of suspect. Detention and seizing phone can be done once you have an arrest warrant.
He said that Penjore’s rights were violated if the case does not fall under exceptions or circumstances reflected under the Police Act. He said that the detention order from OAG will serve as a basis to arrest Penjore but it must comply in accordance with the law and must be treated like any other complaint.Calling it a flimsy case, he said that Penjore’s detention was unwarranted.
“Although it’s less probable that the court will accept this case, if it goes Penjore’s way somehow, the government will have to take action against the OAG,” he added.
A practicing private lawyer from Thimphu said that when a police arrests a person (with warrant or without warrant), the police can seize anything including the phone that is relevant to the arrest offence. However, the police should go through the phone’s contents together with the owner or any person the owner wanted.
“The police can’t go through other contents that are not relevant to the offence of the arrest. Also, the owner or any person can’t be charged of any crimes/offences found in the phone,” he reiterated.
Article 7 Section 19 of the Constitution guarantees every person the right to privacy and “shall not be subjected to arbitrary or unlawful interference of oneself, family, home or correspondence,or to unlawful attacks on the person’s honour and reputation.”
However, the current laws are silent on the requirement of search warrant for phones. Section 176 of the Civil and Criminal Procedure Code (CCPC) 2001 authorizes the police officer the right to take control of possession and seize any weapon, contraband or any other evidence of an offence carried on his/her person.
According to the lawyer, there are categories of offences for which a person can be arrested only with an arrest warrant, and also without warrant (Non-cognizable and cognizable offences). These laws can be found in the Penal Code of Bhutan and the Civil and Criminal Procedure Code.
Article 7 of the Constitution establishes numerous rights, including “many of the basic human rights enriched in international conventions”, which are said to be “essential for development of the human personality and for the full realization of the human potential.”
The final clauses of Article 7 enshrine a right to privacy with respect to arbitrary or unlawful interference only, protect against arbitrary arrest, and provide a right to legal representation as well as a right to undertake legal proceedings for the enforcement of Article 7 rights.
Meanwhile, the PHRC members could not meet this week to discuss about the case due to the ongoing Parliament session. Committee Chairperson MP Passang Dorji (PhD) said that the members will meet right after this session and review thecase. The eight-member committee is made up of four ruling and four opposition MPs.