Date
of Issue: 5 August 2016
BASIS
OF THE WRIT ISSUED IN THE INSTANT CASE:
- PRINCIPLE:
i.
Article
1(9) “This Constitution is the Supreme Law of the
State”.
ii.
Article
1(11) “The
Supreme Court shall be the guardian of this Constitution and the final
authority on its interpretation”.
iii.
Article
1(10)
“All laws in force in the territory of
Bhutan at the time of adopting this Constitution shall continue until altered,
repealed or amended by Parliament. However, the provisions of any law, whether
made before or after the coming into force of this Constitution, which are
inconsistent with this Constitution, shall be null and void.”
b. JURISDICTION
OF THE COURT IN THIS CASE:
Article
21 (8) of the Constitution: “Where
a question of law or fact is of such a nature and of such public importance
that it is expedient to obtain
the opinion of the Supreme Court, the Druk
Gyalpo may refer the question to the Supreme Court for its consideration, which
shall hear the reference and submit its opinion to Him”
c. AUTHORITY
TO ISSUE THE WRIT:
Article
21(10) “The Supreme Court and the
High Court may issue such declarations, orders, directions or writs as may be
appropriate in the circumstances of each case.”
d. LAWS AND PROVISIONS APPLIED IN THIS
CASE:
i. Constitution
of Kingdom of Bhutan 2008, Article 1(9) & (10) ( 11), Article 21(8) and
(10), Article 22(2) (9) (6) (10) (16)
ii. Local Government
Act 2009 Sections 12
iii. Local
Government Amendment Act 2014 Section 17
iv. Election Act
of Bhutan 2007 Section 196, 202
- EFFECT OF THIS WRIT:
i.
Thromde
Elections to be deferred except Samdrupjonkhar Dzongkhag Thromde
ii.
A
special Legal Committee to be instituted to consolidate the existing
conflicting provisions of relevant laws on election of Local Government and the
Constitution
iii.
Section
196 of the Election Act 2007 is declared
null and void
iv.
The
independent representatives of Thromde to Dzongkhag Tshogdu ceases to be member
from the date of issuance of this writ i.e. 5/8/2016
v.
The
Election Commission to compensate the Independently elected representative with
an equivalent salary of Mangmi
vi.
The
elections for Gewog Tshogde to be conducted as soon as possible
- OBSERVATIONS OR SUMMARY ANALYSIS BY
THE SUPREME COURT
1. The
interpretation of the constitution should be done keeping in the mind the
present and future of the nation and in public interest
2. The
amendment of LG Act in 2014 pertaining to mandatory establishment of the Thromde
Tshode does not seem to benefit the nation as Dzongkhag Tshogdu is still there
for participation of the people
3. If
Dzongkhag or Yenlag Thromdes are established with immediate effect, it violates
the constitution and also raises doubts about the implementation of the
policies
4. The
basic principle of the democracy is mass participation of people and thus, in
Thromdes where there are no enough voters, it
may not fulfill the aspirations of the constitutional provisions and
thus, violates the constitution
5. Article
22 (2) requiring the establishment of Local Government in each Dzongkhag
comprising of Dzongkhag Tshogdu, Gewog Tshogde and Thromde Tshogde should not
be read in isolation but must be read in line with the article 22(9) and 22
(10) which requires minimum of 7 to maximum of 10 elected members i.e. minimum
of 7 constituencies to be established in each Dzongkhag as Dzongkhag Thromdes,
thus it is not necessary to establish all Thromdes at once instead could be
established as and when it fulfills the criteria as prescribed by the laws.
Article 22(2)“
Bhutan shall have Local Governments in each of the twenty Dzongkhags comprising the Dzongkhag Tshogdu, Gewog
Tshogde and Thromde Tshogde.”
Section
22(9) “A Dzongkhag Thromde shall
be divided into constituencies for
the election of the members of the Thromde Tshogde”
Section
22(10)“A Gewog Tshogde or a Thromde
Tshogde shall not have more than
ten and fewer than seven elected members”
6.
Article 22 (9) state the division
of Dzongkhag Thromde into constituencies for the election of the members of the
Thromde Tshogde and the Article 22(10) states the requirement of minimum seven and maximum ten thuemis which
shall be headed by a Thrompon and not Thrompon as inclusive of the 7
members.However, the Section 12 of the LG Act states minimum of seven and
maximum of ten elected members including the Thrompon. Thus, it violates the
provisions of the Constitution. Hence, except Thimphu, in other Dzongkhags, the
members which were less than six are unconstitutional save the post of the
Thrompon in Gelephu, Phuentsholing, and Samdrup Jongkhar.
7.
Article 24 (5) and Section 202 of
the Election Act requires the reconstitution of the LG within 90 days after its
dissolution. However, Section 196 of the Election Act provides the conduct of
elections for LG before the date of expiration of duration of LG thus violating
the Article 24(5) of the Constitution and hence null and void.
Article
24(5)
“Parliament shall, by law, ensure that the Election Commission holds elections
so that the National Assembly and Local Governments are re-constituted within
ninety days after its dissolution”.
Section
202 of
Election Act “The Election Commission
shall, by notification under section 201, announce the date before which any
election to the National Assembly, or a Local Government shall be completed to
ensure that the National Assembly or Local Government is reconstituted within
ninety days after its dissolution”.
Section
196 of Election Act
“The Election Commission shall, not later
than ninety days, before the date of expiration of duration of a Local
Government, announce the date on which the Commission shall issue the
notification calling the election and setting the process of election in motion
so as to ensure that each Local Government is reconstituted on the date of
expiration of duration of the existing Local Government.
Provided
that in the case of premature dissolution, such announcement shall be made
after the dissolution so as to ensure that a new Local Government is
reconstituted within ninety days of its dissolution
8.
A special Legal Expert Committee
shall be instituted to consolidate the Laws since above issues violates the
Election Act, LG and other related laws.
9. Article
22(6) DT
shall consist of:
a) Representing
gewogs, two elected members-Gup and Mangmi
b) One
elected representative from Thromde of that Dzongkhag.
c) One
elected representative from Yenlag Thromde of that Dzongkhag
10.
Election of one independent representative in the DT from Thromde is in
violation of electoral laws and as per Section 71 of the LG Act; the Dy.
Chairperson of the Thromde Tshogde shall be the representative of the Thromde
11. The Thromde election shall be deferred till
the Expert Judicial Committee comes with the results of the review except
Thimphu, Phuentsholing, Gelephu and SJ
12. The
independent members elected in Thimphu, Phuentsholing, Gelephu and SJ violates
the Article 22(6) and Section 12 of the Election Act, three members shall cease
to be the member from the date of issuance of this Writ and they shall be given
the salary of the Mangmi from the date of election.
Article
22(6) “The Dzongkhag Tshogdu
shall comprise:
(a) The Gup and Mangmi as the two
elected representatives from each Gewog;
(b)One elected representative from that
Dzongkhag Thromde; and
(c) One elected representative
from Dzongkhag Yenlag Thromdes.
Section 12 Election Act “Each
Dzongkhag shall have a Dzongkhag Tshogdu whose members comprise elected members
from within that Dzongkhag:
(a)One elected Gup and a Mangmi from
each Gewog Tshogde;
(b)One
elected representative from that Dzongkhag Thromde; and
(c) One elected representative from
Dzongkhag Yenlag Thromdes”
13. Section
196 violates article 24(5) and Section 202 of the Election Act, hence in
accordance with Article 1(10) of the Constitution, it stands null and
void. Since the LG Members have completed
five years already, the election of LG Members shall be done as soon as
possible
Authority
to nullify those laws contravening the Constitution:
Article
1(10) “adopting this
Constitution shall continue until altered, repealed or amended by Parliament.
However, the provisions of any law, whether
madebefore or after the coming into force of this Constitution, which are inconsistent with this Constitution, shall be null and void.”
- THE OBSERVATIONS OF THE AUTHOR:
1. The
National Assembly respects the Writ issued by the Supreme Court of Bhutan in
general with a presumption that the Supreme Court of Bhutan as a guardian and
final interpreter of the Constitution and hence it is expected the said writ
was issued taking into the public interest and for the benefit of nation and to set a strong and vibrant democracy in
the country.
2. While
appreciating the historic steps taken by the Supreme Court in exercising its
powers and functions in the administration of justice, the first ever suo motu
Writ under the Constitution, the National Assembly observed the following:
01. The
Members endorsed the preamble of the Writ
and found no further observations
02. The
members also agreed on the context of
the writ that it is not mandatory but may be based on the needs and
affordability of the nation in establishment of the Thromdes
03. On
the point no.3, the mention of administration and implementation are vague and
does not further clarify as to what it really means by the Administration and
numerous related issues. The understanding of the “Administration and numerous
related issues” ( བདག་སྐྱོངས་དང་འབྲེལ་བའི་གནད་དོན་མང་རབས)
means ---
We have contemplated the administration issues as:
Current
expenditure:
1. Election
Expenditure for the Thromde Election in the remaining Dzongkhags
2. Salary
and other entitlements for the Members and Civil Servants
3. Utility
bills and maintenance cost
4. Other
expenditures
Capital
Cost:
1.
Establishment
of Offices
2.
Procurement
of vehicles and office equipment
3.
Other
capital expenditures
However,
the administrative issues are not defined in the writ and hence, the above is
only presumptive and not conclusive.
04. The
section 196 as mentioned by the Supreme Court, this section is without a doubt
in violation of the Article 24 Section 5 of the Constitution. Article 24
Section 5 states that “Parliament shall by, law, ensure that the Election
Commission holds elections so that the National Assembly and Local Governments
are re-Constituted within ninety days
after its dissolution”.
05. On the
observation No. 4 of the Writ which may be translated as “The basic Principle of Democracy is
where some defined population exercises their franchise through votes
and therefore, in the regions of less
number of population, proposal to establish the Thromdes and Yenlag thromdes
seem to violate the provisions of the
Constitution”.
On
this issue, the Court did not give as to what it means by unconstitutional when
Thromdes and Yenlag thromdes are proposed to establish as the Article 22
Section 2 of the Constitution states “Bhutan
shall have local Governments in each of the twenty Dzongkhags comprising the
Dzongkhag Tshogdu, Gewog Tshogde and Thromde
Tshogde”.
Further,
Article 22 Section 5 ensures that Dzongkhag Thromde and Yenlag Thromde as the
two most important institutions to form the Dzongkhag Tshogdu as one member
from each of these institutions are indispensable while Article 22 Section 8,
9, 10 and 11 gives details of composition of the Dzongkhag Thromdes and Yenlag
Thromdes including their membership and chairperson.
Therefore,
the statement of the court in this regard is very vague and seems to declare
the very establishment of Thromdes and Yenlag thromdes as unconstitutional
though not by the Article 22 itself.
06.
On the observation no.6 of the Supreme Court
On the
observation no.6 that states that Thrompon is not considered as a thuemi i.e. Minimum seven and maximum 10 members is not
inclusive but exclusive of Thrompon since Article 22 Section 8 explicitly
mentions about the Thrompon as Head of the Thromde directly elected by the
Dzongkhag Thromde Electorate, needs a deeper understanding as the Constitution
does not mention whether Thrompon is inclusive of Thromde Members under Article
22 Section 9 nor Article 22 Section 11 explicitly mentions whether there is a
need of minimum of seven constituencies to maximum of ten constituencies as it only
mentions the about the members and not about the constituencies.
Therefore, we have looked at different laws
from other countries where election is similar to Bhutanese system.
(1)Comparison
1: London Mayor and Assembly Members
Section 2 of
According to Greater London Authority
Act 1999 states that London City Authority consist of:
a.
The Mayor of London; and theAssembly.
b.
AnAssemblyforLondon,tobeknownastheLondonAssembly.
c.
The Assembly shall consist of twenty five members, of whom—
i.
fourteen shall be members for Assembly constituencies (“constituency
members”); and
ii.
eleven shall be members for
the whole of Greater London (“London members”).
iii.
There shall be one constituency member for each Assembly
constituency.
iv.
The Assembly constituencies shall be the areas, and shall be known
by the names, specified in an order made by the Secretary of State.
(2)Comparison
2: New York Mayor and City Council Members
Similarly in
the New York City, a Mayor is elected directly with five members called Borough
Presidents from five boroughs representing as per the New York City Charter.
(3)Comparison
3: Mayor and City Council Members in
Australian Local Government
In Accordance with Section 2.17 of Local
Government Act 1995, the total City
Council Member is not less than 5 nor more than 14 councils when the Mayor and
Deputy Mayor are excluded. However, it states that when filling of office of
the mayor or president is election by the Council without direct election, the
number of member is not less than 6 nor more than 15 councils.
Conclusion
based on the above comparisons,
Therefore, from the above examples, the Supreme Court’s
interpretation of Thrompon not being member of Thromde Thuemi as he is directly
elected by the whole Dzongkhag Thromde (Entire Voters) among number of
nominations given by each constituency
of that Dzongkhag Thromde independent of the Thromde Members (Thuemis) who are elected solely as member to
represent them in the constituency. Therefore, the minimum member of 7 to
maximum of 10 does not seem include the Thrompon.
However,
since Bhutan’s constitution has same articles of the Local Government as
provided under Article 22 Section applies both to Thromde Members as well as
Gewog Tshode, any Gewog having less than seven members or more than 10 members
would also become unconstitutional as the interpretation of the Supreme Court
in this regard.
07.
The Point or observation no.8 of the Writ
The Point or
observation no.8 of the Writ states that a Legal Expert Committee to be set up
to consolidate the existing laws so that Thromde elections are constitutional
lacks clarity and details.
a.
First, the writ does not specify who should constitute the
Committee whether judiciary themselves
or the Election Commission or any other authority
b.
Second it does not specify or provide any clarity as to who should
and should not be member of this Committee
c.
Thirdly, it does not mention what kind of consolidation or report
is expected out of this Committee and what are its scope and jurisdictions
d.
Fourthly, it does not mention any timeline for the Committee to be
instituted or when its findings to be submitted and to whom it should be
submitted.
Thus, in
nutshell, the order is very vague and can only create confusion among the
people and various institutions dealing with the writ
The Point or observation no. 9 of the Writ:
We made the
following observation on this point by the Supreme Court
The writ
itself quoted the Article 22 Section 6 of the Constitution and Section 12 of
tehe Election Act stating that the Dzongkhag Tshogdu comprise
a) One Gup and
Mangmi as the two elected representatives from each gewog
b) One elected
representative from that Dzongkhag Thromde; and
c) One elected
representative from that Dzongkhag Yenlag Thromdes
The writ
mentions that therefore, independent member elected to represent thromdes in
Dzongkhag Tshogdu in Thimphu, Phuentsholing, Gelephu are constitutional and
ceases to be member from the date of issue of this writ. The interpretation of the independent members
to be unconstitutional is observed as correct interpretation since there are no
mention of any such member either in Constitution or the Election Laws and
Election Commission seems have misinterpreted the Article 22 Section 6 of the
Constitution.
However, the
Writ does not state anything whether the existing Dzongkhag Tshogdu across the
Country are constitutional or not. But going by the interpretation done in this
issue merits more concern as going by the Constitution, none of the Dzongkhag
Tshogdu except Thimphu, 19 other Dzongkhag Tshogdu would be Unconstitutional as
these Dzongkhags have only one component of the Dzongkhag Tshogdu ie. Gups and
Mangmi representing each Gewog and there the Constitution of the Dzongkhag
Tshogdu itself seems incomplete and hence unconstitutional. It is because
without Thromde TShogde and Yelang Thromdes being established, there can be no
elected representatives in their respective Dzongkhag Tshogdu, hence, the
existence of Dzongkhag Tshogdu is questionable and needs to see whether it is
constitutional.
08.
Observations on order/ instructions to the State by in this writ
Order No.1:
Order 1
instructs the Election Commission to defer the Election of Thromdes across the
nation except Samdrupjongkhar.
This order
seems to conflict with the observation no.6 of this same writ where the Supreme
Court observed that except Thimphu, all other Thromdes are unconstitutional as
it does not fulfill the requirements under Article 22 Section 9 and 10 of the
Constitution. Therefore, Supreme Court ordering the Samdrupjongkhar Thromde
election is confusing and creates ambiguity as it has not yet fulfilled the
requirements as provided under the observation no.6 in the same writ.
Order no.2
Nullification
of post of Independently elected members to represent in the Dzongkhag Tshogdu
is found to be correct as interpreted by the Supreme Court but the liability to
pay their salaries equivalent to Mangmi is not clear as who should pay the
amount. It may be required to review whether the Election Commission has
elected them without properly scrutinizing the electoral laws or not. If there
was any improper and negligently interpreted those laws, then whether the state
is responsible for payment of their salary or not.
Going by the
definition of writs and writ of mandamus in particular, the general principle
is that Courts can order the government or executive branch to do something or
stop from doing including payment of appropriate compensations are common and
hence, the order to compensate may be appropriate order in this regard.
Order no.3
The
declaration of the Section 196 of the
Election Act is seen to be correct as it violates Section 202 of the Election
Act and Article 24 Section 5 and only
way to abide by this order is to repeal this Section through the Legislative
Procedure by the Parliament.
Conclusion
While the
institution respects the orders of the Supreme Court, this writ has also create
number of confusions and ambiguities on constitutionality particularly the
Dzongkhag Tshogdue and Gewog Tshogdes where there are less than seven members
excluding the Thrompon in case of Thromde and Gup and Mangmi in case of Gewog
Tshogde. Further, the observation on deferment of establishment of Thromdes and
Yenlag Thromdes raises more concern to the executive and legislature as
constitution itself requires the establishment of these local government bodies
under Article 22 where to establish Dzongkhag Tshogdu, Representatives from
Thromde and Yenlag Thromde are essential constituents to constitute the
Dzongkhag Tshogdu while the Supreme Court feel that Thromdes could be
established later on needs basis.
