The Supreme Court nullifies parliamentary act, making non-bailable offence bailable

This article was published in Kuensel for Saturday Legal Column Series 

In a recent news of child molestation case in Tsirang, it was reported that, the suspect was denied the right to bail.  Bail means “money or valuable collateral to ensure” that, a person arrested appear before the court as and when required and right to bail is a “temporary release” of suspect during the pendency of investigation or prosecution which ceases upon judgment.

Does the labour law extend to employees of RUB?

This article was published in Kuensel for Saturday Legal Column Series

In the recent compulsory retirement case of employees of the College of Language and Cultural Studies in Taktse, the Royal University of Bhutan, reported that, Ministry of Labour and Human Resources refused to accept their application of grievance. The then National Assembly of Bhutan, enacted the Labour and Employment Act of Bhutan in 2007. The fundamental principle objectives of law is to protect and ensure the wellbeing of workers in the country from any form of unfair treatment including working conditions and other disciplinary actions by their employers.

In the recent case of CLCS, while rejecting the appeal of the employees aggrieved by decisions of the college and university, the MoLHR stated that, since the employees are under the RUB, their appeal was “outside the purview of Labour and Employment Act of Bhutan, 2007” and the ministry deals only with “cases of employers and employees of private enterprises”.  This means, current labour law was enacted only to protect the employees of private enterprises. This means, all the state-owned enterprises including financial institutions, hydropower projects or even the public institutions like Druk PNB, Tashi Bank, CSOs, public media houses (BBS and Kuensel) or similar organizations are also not governed by this law because none of these organizations would fall within the definition of private enterprise.

Contrary to this view, Section 3 of the Act only excludes, the armed forces, RBP, RBG and RBA while Section 4 of the Act, categorically states that, “Any matter pertaining to labour and employment not covered under any other laws shall be covered by this Act from the date of its enactment.”  This means, this law is not exclusive of private enterprise, rather is it inclusive of any other employer or organization, whether government or private or NGOs who not covered by other employment laws would fall under the scope of this law. For example, civil servants are governed by Civil Service Act of Bhutan and hence, it is not within the scope of labour law.  Further, contravening the recent justification, as per the Kuensel news, in 2018, the former, Chief Executive Officer of RICBL appealed to the ministry against the decisions of the Board when he was compulsorily retired by his employer invoking various provisions in the labour law. And there are no reports of rejection of his appeal. The nature and establishment of both RUB and RICBL are similar. 

In the larger context, such exclusion and narrow definitions would not only contravene the provisions of the Labour and Employment Act, 2007 but will also undermine the parliamentary intent of protecting thousands of employees in the country. If the current definition of MoLHR is accepted, then the parliament must either amend the current law to expand its scope or come up with a new legislation to protect employees who are outside the purview of the current labour law. The road to litigation must be invoked only as a final resort and shall not be considered norm for all employee related grievances.

In litigation, it is generally the employees and their families who suffer the most, both financially and economically. It would also add burden to the existing workload of judiciary in administration of justice. We must realize that, it is the workers, who contribute to economic growth and development of the country not the employers themselves alone. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.

Does the labour law extend to employees of RUB?

This article was published in Kuensel for Saturday Legal Column Series

In the recent compulsory retirement case of employees of the College of Language and Cultural Studies in Taktse, the Royal University of Bhutan, reported that, Ministry of Labour and Human Resources refused to accept their application of grievance. The then National Assembly of Bhutan, enacted the Labour and Employment Act of Bhutan in 2007. The fundamental principle objectives of law is to protect and ensure the wellbeing of workers in the country from any form of unfair treatment including working conditions and other disciplinary actions by their employers.

Mandatory drugs testing – violating current drugs law?

This article as published in Kuensel for Saturday Legal Column Series

he current mandatory drug testing by various government agencies seem to contradict the provisions of Narcotic Drugs, Psychotropic Substance and Substance Abuse Act (NDPSSAA), 2015. The fundamental concern here is, whether the authorities of test taking agencies are within the ambit of Act. For example, Kuensel reported that, BNCA endorsed the (TCB)’s SOP for drug testing tourism service. The current law does not mention anywhere such power to BNCA. Contrarily, the Act is explicit on drug testing and
screening to protect drug dependents from victimization by the state or the society and to recognize drug dependency as merely a disease. American Society for Addiction Medicine defined drug dependence as “a treatable, chronic medical disease involving complex interactions among brain circuits, genetics, the environment, and an individual’s life experiences”. 

Thus, under  S. 85 (1)  Act, BNCA can designate  “an agency to conduct drug screening and testing of any person or substance” only if there is  credible information, that “ a person causes public nuisance or poses probable risk to the public and is under reasonable ground suspected to have consumed or consuming any substance controlled substances in  any public place”.  This means, current system of drug test is not in conformity with S. 85(1) of Act. Even, if the current system is within the ambit of this law, any positive results would invoke S. 152 of the Act where S. 152(1) and (2) requires that, a person tested positive unless they are prescribed by registered physician must be assessed by Treatment Assessment Panel (TAP). Depending on the outcome of the TAP Assessment, that person will have to either go for rehabilitation and treatment for a minimum of three months or one-month counseling for the first time and increase thereafter.  However, reports reveal that, testing agencies such as RCSC deprived the selected graduates from joining civil service, RSTA directly suspended driver’s licenses and warned them of permanent cancellation of driving license and even termination from jobs and TCB contemplating similar actions.

Further, the current test is merely a field test and is not free of errors and can give wrong results. Therefore, any decisions merely based on field or preliminary test may cause irreparable harm and injury to test takers. That is why, S. 89, 90 and 91 of the Act is inserted so that, the test takers can challenge and appeal the results of field tests.   With increasing number of agencies adopting drug testing measures, it may even violate fundamental rights guaranteed by our Constitution such as right to “equal access and opportunity to join the public service” (Art.7.8), to “practice any lawful trade, profession or vocation” (Art. 7.10) and right to non-discrimination based on status (Art. 7.15). Finally, S. 50 of the Act states, “A drug dependent person who successfully completed treatment or served sentence shall be given equal opportunities for jobs and other opportunities to help assimilate into the mainstream”. Such tests if not performed as per the law, the right to social re-integration and addiction as disease would be defeated. Therefore, agencies like BNCA must exercise their authorities within the boundaries of law, otherwise it will become ultra vires to the law and infringe on the parliamentary acts. The test taking agencies may have the best intentions and interests, but their authority to conduct such test remains questionable.   

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.

Mandatory drugs testing – violating current drugs law?

This article as published in Kuensel for Saturday Legal Column Series

he current mandatory drug testing by various government agencies seem to contradict the provisions of Narcotic Drugs, Psychotropic Substance and Substance Abuse Act (NDPSSAA), 2015. The fundamental concern here is, whether the authorities of test taking agencies are within the ambit of Act. For example, Kuensel reported that, BNCA endorsed the (TCB)’s SOP for drug testing tourism service. The current law does not mention anywhere such power to BNCA. Contrarily, the Act is explicit on drug testing and

More than two sessions of parliament a year-Legally permissible?

This article was published in Kuensel for Saturday Legal Column Series

When the news of proposal for three Sessions of Parliament a year broke out this week, even among the Hon’ble Members of the Parliament, they seemed to have some disagreements and reservations of whether it would be legally permissible to have three sessions per year. While some felt it would be a good move, some seem to have argued that, the notion of holding more than two sessions of Parliament a year would only occur in case of national emergency situations. Such different interpretations by Members of the Parliament may result in politicization of the parliament which may also lead to confusion among the general public and cause unnecessary political disagreements.

Right to Free Speech vs. State Control – A balancing dilemma

This article as published in Kuensel for Saturday Legal Column Series 

Right to publish forms the basic essence of freedom of speech and expression. Kuensel’s news on refusal of publication of Dasho Sonam Kinga’s book has generated numerous discourses on social media. This article makes no attempt in whether BICMA should or shouldn’t register the book, but dwells more on this complex issue of balancing fundamental rights and state’s authority to impose restrictions. 

Court-annexed mediation: bringing justice closer to people

This Article was published in Kuensel for Saturday Legal Column Series

Mediation and litigation generally are considered completely different in any legal system and do not co-exist as one. They operate independently and are never recognised as part of formal adjudication within the court system.

Did OCP fail their duty?- A Lesson from MagneSSA and Oriens fraud

This Article was published in Kuensel for Saturday Legal Column Series on 26 Oct, 2019 issue

The news of alleged fraud of MagneSSA and Oriens through pyramid scheme is not new to Bhutan. It surfaced in the national news long time back but took till now take cognizance of this kind of scheme. Now many Bhutanese are reported to have invested in these schemes expecting quick, yet easy money. Their dreams eventually seem to be a distant dream and instead lost their own money. This is a typical example how ignorant and gullible are the general public in Bhutan including supposedly well-educated ones on consumer rights.

Interestingly, it has been 7 years since the enactment of Consumer Protection Act (CPA), 2012 and establishment of Consumer Protection Office, Consumer Dispute Settlement Committees and Consumer Advocates in the Regional Trade and Industries Offices. However, existence of such institutions  or the rights provided under the CPA are almost alien to the general public even in places like Thimphu.

The recent issues of serious frauds and violations of consumer rights by MadneSSA and Oriens in the name of pyramid scheme seems to have taken the advantage of such ignorance among the Bhutanese consumers.  Therefore, it is a wake-up call to the OCP to vigorously advocate and disseminate the rights of consumers to the general public so that, people are cautious of any such false promises or frauds. For example, Section 89 (e) and (f) of the CPA mandates the OCP to disseminate, advise and educate consumers “about goods and services including, legal rights and remedies, health risks and hazards, safety and quality, weight, measures, prices, consumer choice” and fair prices. Further, the law also requires that, OCP conduct research on consumer issues, make all its decisions publicly available. However, none of these are available for general public nor OCP has taken any comprehensive education measures in the country to educate Bhutanese consumers.

 The Sections 4 of CPA provides comprehensive primary rights of consumers on any consumable products or services including “protection of their lives, health and safety in consumption of goods and services, right to true, sufficient and timely information”, fair price and equitable treatment by businesses. CPA also protects the consumers against misleading and false representation and advertisements, rights against suppliers and even the manufacturers. This law also provides adequate remedial measures such as refund, rejection of goods or other forms of compensation. Another important feature of CPA is that, Section 3 of the Act provides, provisions of CPA would prevail over “any contract term to the contrary or which applies or purports to apply the law of another country”. In case of serious cases which may constitute criminal offence, OCP is mandated to prosecute before the Courts under Section 97 of the Act.  Yet all the consumer rights seem to remain unknown to consumers or known too little to the general public.

With increasing number of businesses both within and from outside, consumers are more vulnerable to various frauds, false promises and may become victims of various scams. Therefore, while it is the duty and mandate of OCP to educate public on consumer rights and  it is also the responsibility of consumers to verify any business properly and highly advised not to engage in any online businesses from outside and our courts and authorities have no jurisdiction over them. 

Did OCP fail their duty?- A Lesson from MagneSSA and Oriens fraud

This Article was published in Kuensel for Saturday Legal Column Series on 26 Oct, 2019 issue

The news of alleged fraud of MagneSSA and Oriens through pyramid scheme is not new to Bhutan. It surfaced in the national news long time back but took till now take cognizance of this kind of scheme. Now many Bhutanese are reported to have invested in these schemes expecting quick, yet easy money. Their dreams eventually seem to be a distant dream and instead lost their own money. This is a typical example how ignorant and gullible are the general public in Bhutan including supposedly well-educated ones on consumer rights.

Of appeal and of differing judgment – A misconception

This Article was published in Kuensel for Saturday Legal Column Series 

There is a misconception among the general public in Bhutan on the differing decisions when a case is appealed to higher courts.  While some describe as two laws, others see it as court favouring the other. It is understandable that the losing party in either court will generally make such accusations, because they think they should have won the case. Therefore, it may be more appropriate to understand the appeal system and why the judgments differ from one court to another.

The Constitution and the LG Act 2009 makes it clear that, LG the master and not local bureaucrats

This Article was published in Kuensel for Saturday Legal Column Series 

 The news of tussle between the Local Government (LG) members and the local administration is not new. This time, Kuensel news stated that since “the civil servants are directly under the control of the Dzongdag”, LG is unable to assert their authority on the civil servants in the local government administration. Dzongkhag Yargay Tshogdu and Gewog Yargay Tshogchung were established in 1981 and 1991 as path to democracy. Till 2008, the LG were mainly functioned under the leadership of Dzongdag and Dzongkhag

National interest must prevail over institutional interest and territorial protection

This Article was published in Kuensel for Saturday Legal Column Series 

The recent news of tussle between Office of the Attorney General and the Anti-Corruption Commission on investigation and prosecution are of national concern. It must be reminded that, ACC and OAG are both established under the Constitution but with different objectives and purpose and also to act as check and balance. If both the institutions are granted same authority, of prosecution and investigation, then creation of separate institutions does not arise.  Article 27 of the Constitution provides primary function of ACC to “prevent and combat corruption” among others, as opposed to Article 29, where the OAG is mandated to “institute, initiate or withdraw any case in accordance with law”.  Manifesting the objectives of Article 27 Section 3 (a) (iii) of the ACC Act authorizes the ACC to “investigate corruption” and Sections 81-159 provides detailed investigation processes and powers.

Of safety and protecting our children

This Article was published in Kuensel for Saturday Legal Column Series 

The news of rape and murder of an eight-year-old in Paro shocked the nation. This unthinkable crime pierced through the minds of every Bhutanese. Its good to see that, so many Bhutanese wept with the grieving parents and felt the tremors of such shocking wave of crime in country.  Many took to social media calling for restoration of capital punishment in rage of anger and impulse. Such heinous crime does indicate that, the preventive measures for our children are questionable.

Should presumption of innocence restored and conviction held in abeyance upon appeal?

This Article was published in Kuensel for Saturday Legal Column Series 


The legal turmoil this week has been whether the Home Minister should resign during the pendency of his appeal because he was convicted by the trial court.

This situation is not unique to Home Minister’s case. Thus, it merits a discussion.  The intricacies of whether an appeal amounts to suspension of decisions of lower court in whole or partly remains a subject of interpretation among many legal fraternities.

BCSR vs anti-corruption laws

 The Press Release issued by the Royal Civil Service Commission and reversal of the decision of the Anti-corruption Commission is a cause of concern. This has also caught the attention of both social media and mainstream media. Numerous presumptions and theories came on this issue and seem to have caused confusion among the general public. Such decisions may ruin people’s confidence in the institution of civil service and also may encourage more public servants to commit corruption. Some feel RCSC’s decision rendered the nation’s anti-corruption laws toothless. Others feel other public institutions may come up with similar administrative rules and regulations in the interest of their institutions and may offer similar justifications. As a result, the fundamental objectives of the campaign against corruption may be defeated.  This may also jeopardize any similar investigations and court proceedings from being free, fair and non-interference.


At a closer glance, RCSC remained silent on the actual contents of the Supreme Court decision cited in their press release.  The public have no knowledge of what the court has decided. The Commission resorted to interpret Rule no. 19.10.1 and 19.10.5 of BCSR, 2018 elaborately to justify their decision. This interpretation seems incorrect in every legal sense.  Firstly, BCSR, 2018 is mere a delegated legislation and has no authority of whatsoever to nullify provisions of the law made by the parliament. Secondly, BCSR itself categorically stated that it is promulgated under Article 26 of the Constitution and Civil Service Act. This means, every provision of BCSR originates from the Civil Service Act and applying these provisions to nullify Suspension Order issued under the ACC Act is nothing short of a fundamental error in interpretation of a law. Neither the ACC Act nor the Civil Service Act provides any provision authorizing RCSC to review suspension orders issued under the ACC Act.

Sections 167 (2) and (4) ACC Act, 2011 is unambiguous. These provisions provide that, once the suspension order is issued becomes mandatory and no other institution has discretionary power to revoke in any way. In fact, the suspension order not only extends to an investigation but also till the end of the outcome of final appeal. The parliamentary act manifested in the ACC Act is crystal and thus, suspension order is binding. Discretionary authority derived by RCSC in the present case deviates too far from the whole gamut of legal interpretation, validity and enforceability of laws enacted by the parliament. This also undermines parliamentary sovereignty. It would not wrong to presume that, ACC would have reviewed and considered all the circumstances before, they issued the suspension order. The only proper and legitimate way to challenge such order is through courts.

It is universally recognized that the constitution has an overriding effect on the statutes (parliamentary acts) and parliamentary acts have an overriding effect on rules and regulations (delegated legislation) made by the executive. However, in this case, delegated legislation tried overriding provisions of the parliamentary act. This contrives the universally recognized principle.  In fact, to ensure this principle, Bhutan’s Constitution explicitly provides a clear separation of power among the legislature, the judiciary and the executive. Balancing the pros and cons of such decisions in a democracy will be the only means of nurturing and strengthening our unique democracy, envisioned by our farsighted and visionary monarchs.

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Kuensel or JSW school of law.


This Article was published in  Kuensel for Saturday Legal Column Series 

BCSR vs anti-corruption laws

 The Press Release issued by the Royal Civil Service Commission and reversal of the decision of the Anti-corruption Commission is a cause of concern. This has also caught the attention of both social media and mainstream media. Numerous presumptions and theories came on this issue and seem to have caused confusion among the general public. Such decisions may ruin people’s confidence in the institution of civil service and also may encourage more public servants to commit corruption. Some feel RCSC’s decision rendered the nation’s anti-corruption laws toothless. Others feel other public institutions may come up with similar administrative rules and regulations in the interest of their institutions and may offer similar justifications. As a result, the fundamental objectives of the campaign against corruption may be defeated.  This may also jeopardize any similar investigations and court proceedings from being free, fair and non-interference.

Of cooling period: A flawed policy

The nation felt the tremors of broken hearts and emotions of parents, who lost their first child when the lifesaving ambulance couldn’t reach them when it was most wanted. Yet, an equally important issue, the cries of those living youth, went almost unnoticed and did not receive much attention.

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ashkahsasa

coming soon
ashkahsasa