Recent reports indicate that Bhutanese has been one of the most obedient and cooperative countries in fighting against Covid-19.  This includes staying under lockdown for months, mass vaccination programme, maintaining physical distance, and following other health protocols.

 Unlike Bhutan, many nations have faced anti-mask, anti-lockdown protests and litigations for imposing similar preventive measures. Bhutan got united so well in one spirit, especially after His Majesty travelled in many highly risky places at the expense of his safety and health. 

Going by recent news, people are punished for not wearing the mask. The “police escorted the defaulters from the spot directly to the nearest police station” and they were “only released with a warning after submitting their details, thumb impression to the police for future records” and some defaulters even got fined and were handed over to the police thereafter.

Mask wearing is one of the most effective preventive measures to fight this pandemic. The strict implementation of mask-wearing in these districts are praiseworthy and their intentions remain at best. However, actions of handing over to police or forcing the people to provide thumb impressions need a careful analysis as it may amount to a violation of Constitutional and legal rights.

Article 7 Section 1 of our Constitution states that a person’s right to life, liberty and security can be deprived only as per the due process of law established by parliament. Further, both the Constitution and Civil and Criminal Procedure Code prohibits the state from any form of arbitrary arrest and detention.

An arrest may be defined as when a state authority such as police “restrains the freedom of a person to walk away freely.”  Arrests can be made only if a person has committed or is being committed or is about to commit a crime. In most instances, arrest warrants are required and CCPC provides detailed lists on arrest without warrant and arrest by warrant.   

The moment a person is arrested, it affects the person’s free movement, security and right to privacy. It triggers the right to consult a jabmi, the right to be informed of grounds for the arrest.  To arrest any person or hand over a person to the police, there must exist an element of criminal offence. Otherwise, any such action may amount to arbitrary arrest and detention.  Thus, irrespective of the intentions, good objectives, or reasonableness, no one can be arrested for not wearing a mask. Any evidence so obtained can’t be admitted in the court under the principle of the fruit of the poisonous tree.

For now, wearing a mask remains the duty of every individual to fight this pandemic. The state can enforce duties only through laws made by parliament or the executive.  Further, if such constitutional requirements are not adhered to, future governments can use current practice as precedent or reason to fulfil their political interest to silent the dissents.

Therefore, though the best intentions exist currently to fight this disease, such state actions cannot be contrary to provisions within the limits of the law. The rule of law is fundamental to democracy, as His Majesty said: “failure of justice persecutes an individual, but the lack of adherence to rule of law persecutes an entire nation. Rule of law begets discipline, which in turn begets order, and peace, which leads to trust and stability.”

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.