The recent press release from the Office of the Attorney General (OAG) on the detention and possible prosecution of a person for his social media post is generating enormous discourse. The media questioned the detention of the person for 16 days without understanding the parameters provided under Section 191.1 of the Civil and Criminal Procedure Code (CCPC), 2001 and the due process of law. In another press release from OAG this week with an attempt to clarify the issue with numerous legal jargons and philosophies trying to authoritatively interpret the laws is causing even more confusion.

While many netizens and media continue to question the right to free speech and the accountability of the Attorney General (AG) and Authority of the OAG to initiate and prosecute such a case and OAG continues to justify the same issue. However, neither the media nor the OAG has the authority to interpret laws, they only have the right to give their opinions. Article 1 Section 11 of our Constitution makes it clear that the Supreme Court is the final authority of interpreter of our constitution and even otherwise, the authority to interpret laws lies with the judiciary since that is their primary function.  

The right to free speech is a pivotal pillar of democracy but with the ever-increasing online free speech, balancing the right to free speech and the right to reputation has become more complex.  No fundamental right guaranteed by the Constitution are indeed unfettered, the state can impose reasonable restrictions justifiable within the framework of the Constitution. Any excessive restrictions may set authoritarian governance, defeating the very foundations of democracy. However, the definition of what constitutes reasonable restriction, the extent of the right to free speech, the definition of defamation is yet to be tested in court. 

In a democracy, it is not unusual for public officials and personalities from public criticism including negative and at times even unsubstantiated criticisms. The “voters have a constitutional mechanism for expressing dissatisfaction of” their public servants and their functions. It is often described that “even the most vituperative criticism of public officials is protected under the doctrine of fair comment and criticism so long as it is in the form of an opinion.” A “robust and uninhibited discussion of public issues” is a sign of vibrant and strong democratic values. But recognizing the close-knit society, we should not have the right to accuse any public figure falsely or recklessly or maliciously. Free speech and opinion must be exercised with due care and should not be with malice or vested interest for whatever reason.   

Our media must stop interpreting laws based on a one-sided story or based on hearsay or presumptions because such duty is outside the media domain. Any one-sided story or opinionated news or reporting on a legal issue without understanding laws will undermine the fundamentals of media ethics and create doubts on the institutions in the minds of the public and ethical codes of journalism. The primary function of media is to report facts without bias. Media must “behave responsibly and respect the collective interests of society.” Similarly, our state machinery such as OAG must carefully evaluate their opinions as it can cost public confidence in such institutions. Any institution or media disseminating must be in the larger interest of the public and country.  

Sonam Tshering

Lawyer, Thimphu

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