𝑻𝒉𝒆 𝒓𝒊𝒈𝒉𝒕 𝒕𝒐 𝒑𝒓𝒊𝒗𝒂𝒄𝒚 𝒈𝒆𝒏𝒆𝒓𝒂𝒍𝒍𝒚 𝒆𝒏𝒄𝒐𝒎𝒑𝒂𝒔𝒔𝒆𝒔 𝒂𝒏𝒅 𝒑𝒓𝒐𝒕𝒆𝒄𝒕𝒔 𝒕𝒉𝒆 𝒑𝒆𝒓𝒔𝒐𝒏𝒂𝒍 𝒊𝒏𝒕𝒊𝒎𝒂𝒄𝒊𝒆𝒔 𝒐𝒇 𝒕𝒉𝒆 𝒉𝒐𝒎𝒆, 𝒕𝒉𝒆 𝒇𝒂𝒎𝒊𝒍𝒚, 𝒎𝒂𝒓𝒓𝒊𝒂𝒈𝒆, 𝒂𝒏𝒅 𝒑𝒉𝒐𝒏𝒆𝒔 𝒂𝒏𝒅 𝒔𝒐 𝒐𝒏 𝒔𝒐 𝒇𝒐𝒓𝒕𝒉.
By Tashi Namgyal
It is not uncommon to hear that when any person gets arrested irrespective of the severity of the accusations or crimes one is suspected of, the first thing they lose is their mobile phones.
Detainees are questioning whether law-enforcers in general and police in particular can bulldoze through the privacy laws of the country while detaining any person.
“They initiate the proceedings by snatching the phone away first and foremost,” said a former detainee, Sonam Dorji.
Another detainee who requested anonymity said that he was kicked and punched when he refused to hand over his mobile phone to the police prior to his detention over a drink and drive case.
The issue here is that can the law enforcement agencies also ask the detainees to open their phones or hand over their passwords without assigning reason and without a court warrant if law enforcement officers ask the detainee?
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 nor to unlawful attacks on the person’s honour and reputation.
”On the other hand, a detainee too cannot file a lawsuit against the police in the court for infringement of privacy. “In my opinion, we can’t charge any authority in the court for seizing the phone. There are many unwritten laws/ not required to be written (implied in legal principles) where the police and other law enforcement agencies can’t be sued/charged in the court for many things they do,” the lawyer added.
He said that mobile phones have become most valued and priced property in everyone’s life because the modern phones can store millions of pages of text, thousands of pictures, or hundreds of videos and other personal stuff and any state intrusion into personal phones could infringe on the privacy.
Citing a famous international case, the lawyer said that even in the case of a garbage bag, a search warrant must be there because, the trash bag “is a common repository for one’s personal effects” which can reveal intimate details about sexual practices, health, personal hygiene, financial, professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests, and so on.
“In the modern day with the increasing use of phones and reliance on technologies, our phones contain far more information than trash bags,” he said, adding that cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record.
“The phone’s capacity allows even just one type of information to convey far more than previously possible and the data on the phone can date back for years. This has several interrelated privacy consequences,” he said.
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.
“Our phones cannot itself be used as a weapon to harm an arresting officer or to effectuate neither the arrestee’s escape nor its data will endanger no one,” a former Drangpon said. “Section 172 and 373 of CCPC requires that search warrant be necessary to search private premises, buildings, and many other areas.
This is because a person’s home receives the highest level of protection as our home is primarily founded on the belief that the home is the most private of places. But now, our phones have become more private than our homes,” he added.
He stated that the right to privacy plays a pivotal role in the development of individuality and consciousness of individual choice in life particularly in democratic societies, since qualities of independent thought, diversity of views, and non-conformity are considered desirable traits for individuals.
He said, “The state should not enjoy the unfettered authority to get access to any detainee’s phones. It is time that our legislature recognizes the importance of right to privacy particularly in the case of phones and amend the CCPC by inserting a requirement for warrant to search phones.
”According to him, 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.
Asked if the law itself deviates and if certain loopholes are there, where and what needs to be amended, he asserted that law is a complex subject, where everyone knows law but no one knows thoroughly.
“Therefore, our field personnel needs to be constantly updated on laws associated to investigation, arrest, seizure, detention and other consonants,” he reminded.
Today, there are approximately 465,085 mobile subscribers for Bhutan Telecom and 295,475 for Tashi Cell. The right to privacy generally encompasses and protects the personal intimacies of the home, the family, marriage, and phones and so on so forth.