OF WRIT IN BHUTAN

Date of Issue: 5 August 2016

BASIS OF THE WRIT ISSUED IN THE INSTANT CASE:

1. 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“All laws in force in the territory of Bhutan at the time of adopting this Constitution shall continue until altered, repealed or amended by Parliament.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

5. 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

6.  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.”

7. 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.