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