Data protection Media Law Class

Data protection Media Law Class

Media should not be considered government’s mouthpiece

This article appeared in Kuensel on 25 April, 2020 in my legal op-ed series 

April 25, 2020

This week, Kuensel editorial titled “Misunderstanding the media” stated that “spokesperson still remains a joke, young journalist are dictated what to write, time media receives is when the newsmakers benefit, lengthy bureaucratic procedure and media have to wait if the Dasho is on tour.”

How can we get back our fundamental rights from Covid -19?

This article appeared on  18 April 2020 in Kuensel in my legal op-ed series 

April 18, 2020

Covid-19 is bringing a new normal. This pandemic stalled the global economy, paralysed international business, made markets volatile and took away thousands of human lives. Legally, this pandemic has suspended all basic or fundamental rights. Even the most powerful and liberal democracies like India, the United States or European countries are unable to ensure these rights due to this disease. For example, India is still under lockdown and Italy and Spain

The e-commerce regulation in Bhutan – ambiguous and unenforceable

This article appeared in Kuensel on 11 April 2020

E-commerce has “emerged as an important tool to facilitate the conduct of business for consumers and businesses alike” across the globe with an estimated “transaction of $3.535 trillion by 2019” and Bhutan is no exception. E-commerce is generally conducted by “Click-Wrap” or “Click-Through” or “Web-Wrap”. These are “electronic contracts that require the user to scroll through terms and conditions and to expressly confirm the user’s agreement to the terms and conditions by taking some action” such as “I Accept” or “I Agree.”

Consumer right without a right to fair price is no right

This article appeared on 4 April 2020 in Kuensel 

Pricing is one of the building blocks in any market. Price may be defined as the “monetary value of a good or service.” Every business, whether formal or informal, invests with an expectation of some profit. The profit is directionally proportional to the price of the goods. However, sometimes, the sellers hike the price unreasonably because certain circumstances favour them.

Right to privacy law necessary not luxurious

This article appeared in Kuensel on 28 March 2020

The right to privacy is a fundamental right under Article 7(19) of our Constitution, which states: “A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation”.  Article 7(9) gives the right to privacy not only
to the person himself or herself but also to the family from arbitrary or unlawful interference. The protection of privacy has become ever more important. With the ever-increasing number of Bhutanese on social media and as the so-called investigative journalism becomes bolder, the vulnerabilities of leakage of personal information to the public is high. In name of investigative journalism or breaking news or to seek popularity on social media by some netizens or to fulfil vested interests, many innocent citizens may become a victim.

Alan Westin defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”. Therefore, the right to privacy is not just protection from divulging personal information but also the right to protect how to divulge and to what extent. This also indicates that, though a person may agree to give his or her personal information, a person who receives the information does not have the right to use the information as one wishes. A scholar said that in a democracy, it is our responsibility to “develop privacy standards that are capable of structuring the right kind of information use”.

This week, the right to freedom of the press and the patient’s right to privacy confronted each other. During one of the Press Conference, some of the journalists questioned the Minister of Health why the information about the first Bhutanese Covid-19 case was kept secret including travel history. The Health Minister responded that the right to privacy of the patient is the priority and there were no benefits out of additional information. The Minister also rightly pointed out that since Bhutanese society is very small and revealing information would make the patient’s identity easy to know.  The right to health privacy is among the most important privacy issues because, “certain diseases have long been associated with great stigma (e.g., leprosy, HIV/AIDS); other diseases are correlated in other people’s minds with certain lifestyles and behaviours”. Revealing health information may also pose a threat to the possibilities of getting jobs, reputation and respect within the communities.  For example, many might distance themselves from a patient who is diagnosed with Covid-19 in the present case even after she recovers from the disease due to fear of getting infected.

However, should the media or even any person may reveal details of the patient there is no statutory protection of the right of the patient in Bhutan. Further, Bhutan does not have any privacy torts which “provide remedies for intrusions into areas where one is receiving health care or public disclosures of private medical information”. Therefore, it is important to enact a privacy law that will regulate the “confidentiality of the relationship between patients and their physicians or other health caregivers” in the country. The media and individuals must remember that, as per Article 7(2) of our constitution, among others, a person shall not infringe on the rights and freedoms of others which includes the right to privacy.

Sonam Tshering Lawyer, Thimphu

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

Right to privacy law necessary not luxurious

This article appeared in Kuensel on 28 March 2020

The right to privacy is a fundamental right under Article 7(19) of our Constitution, which states: “A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation”.  Article 7(9) gives the right to privacy not only

Getting out a of contractual liability due to Covid-19

This article appeared on 21 March 2020

After the confirmation of the first Covid-19 case in the country, the government had to take numerous steps to prevent further spread of the virus. As a result, the entire tourism sector came to a standstill, entry of labourers from India is stopped, entertainment centres closed, and the transportation sector faces restrictions. The government also informed that, should the situation worsen, some districts or the entire country may get locked down.

Clash of national identity and national emergency

This article appeared in Kuensel on 14 March 2020

After the country got the first case of COVID-19, numerous press briefings are being conducted almost every day. Among many issues, one major criticism is that the media professionals are not able to ask questions in Dzongkha.

Being responsible netizens

This appeared on 7 March 2020 

With large number of Bhutanese on social media, impact of social media can be enormous. Art. 8(1) of the Constitution imposes a duty on every citizen to preserve and protect the unity in the country and Art. 8(6) mandate that, “ A person shall have the responsibility to provide help,

NA and NC at loggerheads – lost in definition of S.213 and 214

It appeared in Kuensel on 29 February  2020

Last week, Kuensel reported that, “Two Houses at loggerheads over unnatural sex provisions”.  These loggerheads may have been caused by inability to balance the impacts of amending or retaining this provision. Section 213 states, “A defendant shall be guilty of the offence of unnatural sex, if the defendant engages in sodomy or any other sexual conduct that

When the legislature derails essence-innocent citizens face injustice

This article appeared in Kuensel on weekly legal column on 15 Feb 2020

A Kuensel news reported last week reported “A twist in the tale with a happy ending”. This kind of news is a wakeup call for our parliamentarians. The current provisions on rape is not only confusing but also does not take into the account the actual issue. Particularly, Section 183 of Penal Code of Bhutan was enacted to punish the rapist but instead

NA dumping two Bills passed by NC is a waste of time and resource

This article appeared in Kuensel on weekly legal column on 1 Feb 2020

The fundamental duty of the parliament is legislation. Therefore, parliament is also known as legislative body or legislature. The news of confusion where the National Assembly (NA) decided not to deliberate two bills passed by the National Council (NC) is worrisome and waste of public resources. This issue may not attract much attention because it does not have immediate impact on the public as the current bills pertain only public servants.

Of separation of power and tussle between the legislature and judiciary

This article appeared in Kuensel on weekly legal column on 25 Jan 2020

During the deliberation on the amendment of Civil and Criminal Procedure Code (CCPC) in the National Council, a member raised concerns about the judiciary amending the laws made by the parliament and the need to include a provision to control such powers.  This was followed by a Kuensel article “Contradicting Supreme Court Orders confuse courts”, which discussed on a standing order and many legal experts raised concerns of such orders.

This standing order was issued on November 26, 2019, instructing all the courts to implement the earlier standing order issued on June 17, 2015, which declared S.199.8A unconstitutional making every criminal offence a bailable.

In Bhutan, though Article 1(13) of the Constitution makes it  clear: “Separation of the Executive, the Legislature and the Judiciary” except as permitted by the Constitution. The separation of power adopted by numerous constitutions centuries ago mainly “as the system of checks and balances among the three arms of the government”.

Article 1(11) our constitution appoints the Supreme Court as the guardian and the final interpreter of the Constitution. This is an enormous authority the Supreme Court enjoys. However, reading this Article with Article 21 (8) and (10) does seem to limit the scope of authority of the Supreme Court.

For example, under Article 21 (8), Supreme Court can interpret the Constitution when there is a question of law or fact referred by His Majesty and under article 21(10), the Supreme Court can issue declaration, writs, orders, directions only based on circumstances of each case.

This indicates that there must be a case in order to exercise authorities under Article 21(10). Similarly, to interpret the provision on fundamental rights, it can be done only when a person aggrieved by action of the state is challenged. Thus, it is unclear, if current practice of Supreme Court issuing merely a standing order to amend or repeal parliamentary acts is within the framework of separation of powers.

Contrarily, Article 10 (1) explicitly states: “there shall be a Parliament of Bhutan in which all legislative powers under this Constitution were vested”. Therefore, legislative authority is an exclusive domain of the parliament. This can be inferred even from Article 1 (1) which states that, “Bhutan is a sovereign and sovereign power belongs to people of Bhutan” and parliamentarian are representatives of the people and not the judiciary.

When the principle of Separation of Power was propounded by a French Philosopher Montesquieu to fight against tyranny of the leaders who hold on absolute powers, he suggested that there is should absolutely no encroachment of each other. But with changing of times and shift in governance system towards people centric democracy, absolute separation of power is impossible and some overlap authorities into each other’s boundaries are inevitable.

Therefore, it is not uncommon for any legal system across the world that courts, in particular appellate courts, does amend lot of parliamentary acts through its decisions when a case has been filed before the court. But amendment of laws through issuance of standing order are often seen very rare in any democracy set up as it is often seen as direct infringement on the parliamentary domain.

Therefore, our judiciary must exercise due care when it requires to enter into domain of legislature to protect public confidence in the judiciary. Any form of power tussle between the judiciary and parliament is unhealthy for a democracy.

Sonam Tshering

Lawyer, Thimphu

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

Of separation of power and tussle between the legislature and judiciary

This article appeared in Kuensel on weekly legal column on 25 Jan 2020

During the deliberation on the amendment of Civil and Criminal Procedure Code (CCPC) in the National Council, a member raised concerns about the judiciary amending the laws made by the parliament and the need to include a provision to control such powers.  This was followed by a Kuensel article “Contradicting Supreme Court Orders confuse courts”, which discussed on a standing order and many legal experts raised concerns of such orders.

Right to mediation exist in every civil case not special as media indicated

This article was published in Kuensel for Saturday Legal Column Series 

This week, both Kuensel and BBS indicated, the right to settle out of court in civil case as some kind of special consideration by Trongsa District Court.  Such news may create confusion among the general public who are ignorant of litigation. However, this remedy known as “negotiated settlement” under the Bhutanese legal system has been a part of our judicial process since decades. In fact, S. DA-3-1 of Thrimzhung Chhenmo provide this right any case including criminal offences except larceny, armed robbery, murder and treason.

Need for a social welfare law to protect common people

This article was published in Kuensel for Saturday Legal Column Series 

A Kuensel headline this week stated “Authorities’ inaction worrying resident more than cracks” in Trongsa and  another headline reads “Poor drainage system spoils the winter charm in S’jonkhar”. Similarly,  an alarming headline in 2018 reported “24 babies infected in NICU, 15 survive, 9 die in JDWNRH” and list goes on. There are numerous reports of wall collapses, potholes, unsafe

A paradigm shift from punitive to restorative justice system

This article was published in Kuensel for Saturday Legal Column Series 

This week, the Trongsa Dzongkhag Court deviated from conventional punitive judgment to corrective or reformative judicial process. Such new thoughts from our courts are welcome, though effects of this paradigm shift remain uncertain in terms of reduction in juvenile crimes in the country.

The historic new year gift- Gyalsung – our constitutional duty

This article was published in Kuensel for Saturday Legal Column Series 

One of the most exciting and memorable moments of the 112th National Day was the announcement of institution of Gyalsung (National Service). While His Majesty formally confirmed time frame and criteria to participate in Gyalsung but this sacred duty to Tsa-Wa-Sum has been long been envisioned by none other than our Great Fourth, His Majesty Drugyel Zhipa decades back and has been incorporated within our Constitution.

Inconsistency in procedure may create mistrust and weaken confidence in justice system

This article was published in Kuensel for Saturday Legal Column Series 

Procedural law is fundamental to the enforcement of legal rights. Without procedural laws legal rights will remain a paper tiger.  Access to justice is key in ensuring the right to equality before the law. Right to file a suit is fundamental to access to justice.

Who is a public servant in Bhutan, a political dilemma and drama

This article was published in Kuensel for Saturday Legal Column Series 
The question of whether public servant include corporate employees has made the headlines recently. Government is of the view that public servant does not include corporate employees. In the meanwhile, the opposition argues otherwise.