A/HRC/42/39/Add.1
the International Covenant on Civil and Political Rights, which contains important safeguards
in relation to the right to liberty, and to other international human rights treaties.
B.
National legal framework
10.
The Constitution was adopted on 18 July 2008 and marked the country’s transition to
a democratic constitutional monarchy. Article 7 (fundamental rights) provides for the right
to life, liberty and security of person and prohibits the deprivation of such rights except in
accordance with the due process of law (art. 7 (1)). The Constitution also enshrines the
prohibition of arbitrary arrest or detention (art. 7 (20)) and the right to consult and be
represented by a Jabmi (legal counsellor) of one’s choice (art. 7 (21)). There are exceptions
to the above-mentioned rights (art. 7 (22)) in cases involving the sovereignty, security, unity
and integrity of Bhutan; the peace, stability and well-being of the nation; or friendly relations
with foreign States. Moreover, article 10 (25) stipulates that international conventions,
covenants, treaties, protocols and agreements acceded to by the Government after the
adoption of the Constitution will become national law only upon ratification by parliament,
unless such agreements are inconsistent with the Constitution.
11.
The Penal Code, 2004, as amended in 2011, criminalizes illegal arrest (sect. 416).
While it is unclear whether the scope of the offence is limited to formal arrest and detention
or includes any physical apprehension, in practice section 416 of the Penal Code has been
applied quite liberally to include all forms of illegal arrest as long as it is carried out without
probable cause. Unlawfully detained persons are subject to compensation under section 212A
of the Civil and Criminal Procedure Code (Amendment) Act, 2011. Neither the term “arrest”
nor “detention” is defined in the Penal Code.
12.
The Civil and Criminal Procedure Code, 2001, sets out general principles of the
judiciary, including the independence and impartiality of the judiciary (sects. 2, 5–6 and 15),
equality before the law (sect. 3) and the right to a fair and public trial by an independent and
impartial court (sect. 4).
13.
The Code also includes the right to habeas corpus (sect. 7), but it appears to limit the
exercise of that right to family members of detained persons, rather than extending it to
detained persons themselves. However, reading section 7 together with section 31.1 (e), the
right to habeas corpus is provided to detained persons and also extends to family members.
Section 31.1 lists individuals who can register a case and that right extends to detainees, legal
counsel or the next of kin. In addition, section 188.1 imposes a legal duty on the concerned
authority to produce the arrested person before a judge within 24 hours.
14.
A detained person has rights under section 164.5 of the Code to challenge an
“improper arrest” and under article 7 (23) of the Constitution to initiate appropriate
proceedings in the Supreme or High Court for the enforcement of, among other things, the
right not to be subjected to arbitrary arrest or detention, “subject to procedures prescribed by
law”.
15.
The right to legal aid is stipulated under section 34 of the Civil and Criminal Procedure
Code, which states that “only an indigent accused shall have legal aid provided for one’s
defence where the interest of justice so requires”.
16.
The Working Group urges the Government to amend the country’s Penal Code by
introducing legal definitions of the terms “arrest” and “detention” and broadening the scope
of the offence of illegal arrest to include any physical apprehension that results in the
deprivation of liberty.
III. Positive measures and initiatives
17.
During its previous visits to Bhutan in 1994 and 1996, the Working Group made a
series of recommendations to address the arbitrary deprivation of liberty. Throughout its
current visit, the Working Group was encouraged to see that a number of those
recommendations had been implemented and progress had been made.
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