Win or lose, Penjore hopeful for a systemic review on human rights law

Parliamentary Human Rights Committee adopting a holistic review approach and will write to the heads of agencies involved in the Penjore case for consultations.

By Tashi Namgyal

Thimphu

The Parliamentary Human Rights Committee (PHRC) will soon submit their report and recommendations to the Speaker of the National Assembly (NA) based on their findings concerning the human rights violation and arbitrary detention of Penjore Penjore.

“The case is being reviewed within the Committee and is almost complete,” Chairperson of the Committee, MP Passang Dorji (PhD) said. He said that it is necessary to review the case in-depth within the Committee members before consulting or inviting the relevant agencies and individuals involved in the case.

“It is a hectic task because most of the Committee members are out of station and it is difficult to form a quorum during the meetings,” he said. “We are not sure when the final report will be compiled but we will definitely submit a comprehensive one to the Speaker,” he added.

The Committee has completed five rounds of meetings, including public consultations. They will soon invite relevant agencies and individuals before making their final report and corresponding recommendations to be submitted to the NA.

MP Passang Dorji (PhD) said, “We will write to the head of the agencies involved for consultations. It is their decision whom to depute or send as a representative to clear the fog.”

“People ask us what we are doing. We are not just looking at an individual case. We are approaching the case in a holistic manner so that necessary amendments could be inculcated in the laws and policies for future reference. Basically, we might as well plug some loopholes in the process,” the Chairperson said.

He reiterated that the Committee is reviewing the procedures of detention and interrogation in general.

The Chairperson also said that PHRC is working in accordance with Section 2, Article 10 of the Constitution which states that the “Parliament shall ensure that the Government safeguards the interests of the nation and fulfills the aspirations of the people through public review of policies and issues, Bills and other legislations, and scrutiny of State functions”.

According to the Chairperson, the decision is usually taken based either on consensus or a simple majority. The committee can file reports on various human rights issues after deliberations which will be reported to the Speaker. If the committee wants to move a resolution then it has to be put up to a plenary session, where if it gets majority vote, it will get through to be presented on the floor.

However, the Committee, made up of four ruling and four opposition MPs does not have the right to pass any judgment on who is right or who is wrong. They will only submit the report and recommendations whilst it is the mandate of the judiciary or the court to issue the verdict.

Penjore Penjore’s claims

Article 7, Section 20 of the Constitution explicitly states that “A person shall not be subjected to arbitrary arrest or 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.

Law experts this paper consulted conformed the role which the PHRC is playing in this case.

“They cannot take up a specific or a particular case but can only recommend for systemic improvements by looking into a class/general need of consideration, which they are doing,” said a law expert.

He said that it is also upto the government, individual or institution whether to consider the PHRC’s recommendations or not. “They can’t take any action against anyone for not abiding by their recommendations and report.”

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.

Law review: Phone seizure and privacy violation

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.”

The Current Law: Arrest Warrants, Search Warrants& Human Rights

The PHRC is reviewing the procedures of detention and interrogation in general which also includes SOPs on search warrants, arrest warrants, etc.

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

Law experts and the public are now waiting for what the relevant authorities/organizations where Penjore put up his appeal have to say.

“The judiciary has done their part by dismissing the case whilethe PHRC is working and reviewing the human rights violation case,” a Thimphu based lawyer resonated.

A complaint letter from Penjore regarding corruption was shared with the PM by the ACC in June.“We are waiting for what the ACC and PMO have to say on this,” said the lawyer.

As for Penjore,he said that he only wants to make a wake-up call. “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.”