Clear to run(?)

About 6 weeks ago, at a press conference, the prime minister claimed that the Election Commission of Bhutan should disqualify the opposition party from taking part in the next round of elections for failing to clear its debts by the 30 June deadline.

Remarkably, the prime minister also suggested that the two members in opposition should not be permitted to run in the next elections … not as members of their current party, not by starting a new party, not by joining another party.

As it turned out, the election commission, having reviewed the status of the two existing parties, decided that both PDP and DPT continue to enjoy their status as registered political parties. That means that PDP will be able to participate in next year’s elections. That also means that the two members in the opposition will be able to run in the next elections.

Okay, that’s clear.

But what’s not clear is if the prime minister, some of the other DPT ministers, and the speaker will be allowed to take part in the 2013 elections?

The prime minister, the speaker and other ministers have all been implicated in the Gyelpozhing “land grab” case. The Anticorruption Commission investigated the case and concluded that 67 of the 99 plots allotted in Gyelpozhing were “illegal”.

The ACC has already issued a “freeze notice” forbidding any transactions on 75 of the plots.  And they have forwarded the case to the Office of the Attorney General in keeping with the Anticorruption Act, Section 128 of which states that OAG “… shall undertake prosecution of persons on the basis of the findings of the Commission for adjudication by a Court.”

But can OAG prosecute members of the government? Chapter 3, Section 12(a) of the OAG Act states that OAG shall “… represent the Government in civil litigation and criminal prosecution before the Courts of Law …”. Furthermore, Chapter 4, Section 20 of the OAG Act declares that, “The Attorney General shall be accountable to the Prime Minister”.

In fact, the OAG Act does not prevent the attorney general from prosecuting the persons charged in this case, as they are being charged as private individuals, and not as members of the government.

But what if OAG is unwilling to prosecute? What if they feel intimidated? And what if they drag their feet? Then what?

That should not happen. But in the unlikely event that it does, ACC is empowered to conduct its own prosecution. According to Section 128(3) of the Anticorruption Act, the ACC may “… carry out its own prosecution of a person charged with an offense under this Act or take over the prosecution process from the Office of Attorney General when the case is:  (a) delayed without valid reason; (b) manipulated; or (c) hampered by interference.”

So whether it’s by OAG or by ACC, the persons implicated in the Gyelpozhing case will be charged.

But that’s not all. According to Section 167(2) of the Anticorruption Act, “ A public servant who is charged with an offense under this Act shall be suspended with effect from the date of the charge till pending the outcome of any appeals.”

That means that once the prime minister, speaker and other the ministers involved are charged in a court of law, they must be suspended.

But even that is not all. Section 179(g) of the Election Act provides that “A person shall be disqualified as a candidate or a member holding an elective office under the Constitution, if he/she: has been accused of felony in a pending case and the competent Court has taken cognizance and charges have been framed against him/her.”

That means that once they are charged, and if they are accused of felony, they must be disqualified from their offices, not just suspended.

That also means that, unless they are acquitted by the courts of law, they cannot take part in next year’s elections.

The first Parliament will complete its term in April 2013. And according to the Constitution, elections must be conducted within the next 90 days. That means that elections must be conducted by July, at the latest. And that means that, to take part in the elections, the accused must be acquitted by June 2013.

That’s just nine months from now. Nine months for the speaker to prove that he didn’t break the law in the way he allotted land to influential people. And nine months for the prime minister, the minister for works and human settlement and the minister of finance to prove that they did not break the law in applying for and accepting large tracks of land in Gyelpozhing.

DPT leaders

Allegations that Dasho Chang Ugyen had illegally acquired 10 acres of community and government land in 1987 has drawn widespread outrage and public condemnation. The allegations come even as the Gyelpozhing land grab case is still being investigated.

Both the land cases involve the senior most DPT leaders. The president, both vice presidents and several senior members of the DPT are alleged to have acquired large tracks of land illegally.

Some commentators here have pointed out that the land was acquired many years ago, much before DPT was established, and that, as such, DPT should not be linked to the allegations. They are right. The DPT party should not and cannot be held responsible for what their members did long before the party was established. But the members, if they broke the law then, must be punished now, even if it has been many years since the misdeed.

Instead, DPT leaders seem to be using their party to shield themselves from scrutiny. First, after the Gyelpozhing case was reported, the prime minister went on record to suggest that the allegations were politically motivated as they had been made “just as people are talking about next round of elections”.

And now, after Chang Ugyen’s case was reported, Lyonpo Yeshey Zimba has asserted that, “… It is sad to see that a personal issue is being politicized.”

I agree. The cases should not be politicized. But for that, DPT leaders must accept that they, like everyone else, must be investigated for alleged wrongdoings. And when that happens, DPT leaders must themselves refrain from misleading the public to believe that the allegations are politically motivated.

Politics of LG elections

The local government elections are over. And the new gups – the heads of local governments – have started taking their charge throughout the country.

But a dozen gewogs still don’t have gups.

Goenshari in Punakha yielded a two-way tie. The election results in Bjabcho in Chukha was nullified as the winning candidate turned out to be overaged. And elections for Gongdue in Mongar could not be conducted as the lone candidate was disqualified for violating electoral laws.

So elections for Goenshari’s two candidates will be repeated. And elections will be conducted in Bjabcho and Gondue.

The remaining 9 gewogs don’t have gups yet, because the election results in these gewogs are being contested. And cases have been registered against the winning gups of these 9 gewogs.

I find one of these cases particularly disturbing. The winning gup of Tendu, Samtse has been alleged to have received help from an uncle who apparently is a DPT party worker.

If this is true, it is a flagrant violation of electoral laws. Local governments are nonpartisan. And political parties should not attempt to influence local governments in any way.

The Samtse dzongkhag court will, no doubt, hear the case carefully.

But because a political party has allegedly been involved, it may also make sense for the Election Commission to investigate the case separately.

Sonam Tshering matters

Sonam’s Lawyer generated a lot of questions about why I was so interested in helping Sonam Tshering, the first Bhutanese to be detained under the Tobacco Control Act.

“lindawangmo”, who was the first to question my motives, wrote:

Ever since Sonam Tshering has been arrested your Blog has been full of support for him and the whole town talks about him. But what disturbed me was ppl hardly talk about the second catch, the driver, no one knows about him, does he have no relatives or friends. Are you backing sonam Tshering because he is a haap, or because as a plain Bhutanese Citizen. If its because of the first one than I think you ask the MP from the drivers village to help him and for the Later one I think you should look into the Matter.

Then “issay” asked:

why did you not mention the other person. Why do you only care for sonam. Is it true that he is from your constituency and a relative as well? Please tell us.

And “YPenjor” lamented:

Only today, I am knowing that you push so much of saving Sonam Tshering because he is a Haap.

Are you trying to fool the public with your foolish notion?

Many other readers also commented. And most of them questioned my motives for helping Sonam Tshering, while ignoring the second person detained under the Tobacco Control Act, a driver.

Thank you for your comments and observations.

Sonam Tshering is from Haa. He hails from Lopa, a village in Samar gewog.

I knew all this when I wrote about Sonam Tshering, but I did not think that it mattered. And if it did, Kuensel had already identified where Sonam came from.

What I did think that mattered when I wrote about Sonam Tshering was that he was the first Bhutanese citizen to be detained under the Tobacco Control Act. And that, without legal counsel, he could face the minimum three-year jail sentence.

That’s why I went to see him. That’s why I asked for volunteer lawyers to represent him. That Sonam was from my constituency did not matter at all.

But it wasn’t just readers of this blog who questioned my motives for mobilizing support for Sonam Tshering. The PM and the health minister also feel that I’m supporting Sonam only because he’s from my constituency. They are wrong.

The PM and Lyonpo Zanglay are wrong. And they know it. They know it because they, like me, were also concerned about Sonam Tshering’s plight. That’s why the DPT offices had also provided Sonam their support and guidance.

Sonam Tshering is from my constituency. And I find his case disturbing – I do not want to see any one, from any part of our country, go to jail for any amount of time, let alone three years, for possessing tobacco worth under Nu 100. But that’s not important.

What is important – very important – is that Sonam Tshering is the first person to be charged under the Tobacco Control Act. How he is adjudged will have a strong bearing on future cases, including that of the second person already detained under the Tobacco Control Act.

That’s why I called for concerned citizens.

Anticorruption

Earlier this week, the Anticorruption Commission’s annual report to the Parliament was discussed. Members of National Assembly – including the PM, cabinet minters, ruling party MPs, the opposition and the Speaker – registered their support for this important organization, and reiterated their resolve to fight corruption.

The ACC’s annual report, however, was silent on one issue. The report made no mention whatsoever of the recruitment of DPT party workers by the Government. About a year ago, I had informed ACC that the unilateral appointments of the DPT party workers may be unlawful, but have received no response so far. I’ll be writing to them again.

Letter trail

Several of you (Pro Media, Zamtap, Sonam, Kudrung and Kids) have asked me to post the letter that Lyonpo Khandu and Dasho Chencho wrote soliciting financial assistance from people who are not registered members of their party. One reader, Kids, almost begged: “I sincerely request your excellency to share the letters with us.”

There’s no law prohibiting me from posting the letters (one in Dzongkha, the same in English). Yet, I feel uncomfortable. So please bear with me. But, be assured that my reluctance to post the letters here is not because I don’t want to share the evidence, so to speak. I just don’t feel comfortable.

One reader, however, obviously had a copy of the letter. This is part of what Rinzin wrote in defending the fund raising efforts of the DPT MPs: “The last paragraph of the letter reads ‘Kindly note that the Election Commission of Bhutan(ECB) in consideration of the financial difficulties faced by political parties have raised the maximum ceiling of an individual contribution from Nu.100,000 to 500,000. Please also note that in accordance with the Laws, your contribution will be adjusted as;
i. Registration fees,
ii. Membership fees,
iii. Balance as your contribution.”’

The “last paragraph” that Rinzin reproduced in fact proves otherwise. “…your contribution will be adjusted as: i. Registration fees,…..” is evidence that the letter was sent to people who have not paid registration fees. People who haven’t paid registration fees are not registered members of their party. And they had no business soliciting contributions from them.

I repeat: Section 146(c) of the Election Act states that a political party may be dissolved if “it has solicited or resorted to collection of funds from private individuals or any agency other than from its registered members.”

I’ve forwarded the letters to the ECB today. I’m confident that they’ll take it up from there.

State of the party

Last Sunday, in the Bhutan Times…

PM and OL on state funding for parties

Financing political parties

The Royal Audit Authority, in its annual report to the Parliament, pointed out what we all know: that both our political parties are in serious financial problems. As of 30th June 2008, PDP owed Nu 20,326,924 to the Bank of Bhutan and Nu 3,588,232 to other various other suppliers. DPT owed Nu 14,253,975 to the Bank and Nu 7,708,010 to other suppliers.

Yesterday, the National Assembly spent a good hour discussing the Royal Audit Authority’s observations on the financial status of our two political parties. Actually, we did not really discuss the audit observations per se. Instead, we talked about, at length and in great detail, the need to provide state funding for the political parties.

This is not good. During our first session, about a year ago, we’d debated state funding for political parties. And we’d agreed that it would be unconstitutional. In fact, the Chief Justice, who at that time was still the Chairman of the Constitution Drafting Committee, publicly declared that state funding for political parties would be unconstitutional. But still, we discussed the issue again.

Some of the arguments our honourable members of parliament, including ministers, presented were shocking. Most of the members proclaimed that, upon closer examination, the Constitution did not specifically prohibit state funding for political parties. Many suggested that the foundations of our democracy would crumble if the existing parties were to fail. Some threatened that political parties, especially a ruling party with a huge mandate, would resort to corrupt means to raise funds. And, one brave member even proposed that laws could be amended to allow state funding.

My views are simple and straightforward. According to Article 15.4(d) of the Constitution, a political party can be registered if, among other things, “It does not accept money or any assistance other than those contributions made by its registered members, and the amount or value shall be fixed by the Election Commission.” Furthermore, the Election Act clearly specifies that political parties can raise funds from only three sources: registration fees, annual membership fees, and voluntary contributions. So obviously, I cannot support any proposal for state funding for political parties.

But what if one or both the existing parties were to collapse? Wouldn’t that affect democracy? Yes. But the show, so to speak, would go on. The importance of the existing parties is overrated. They are not indispensable for our democracy. Should they fail, it would be most inconvenient, and embarrassing, but other parties would surely come forward. And, they wouldn’t make the same mistakes, especially the excesses that have caused both PDP and DPT financial woes.

Now, if politicians, on the other hand, are prepared to knowingly violate the Constitution, we should be scared. It is dangerous for democracy. And it must not be allowed to happen.

Incidentally, less than a month ago, I’d expressed my concerns that our government may try to justify state funding for political parties (read Financing parties).

Financing parties

About a month ago Kuensel reported that DPT MPs had insisted that “… only state funding would save them from sinking under.”

And quoted Lyonpo Thakur Singh Powdyal as saying: “Given the experience of the party so far and the need to have a responsible and respectable political system in the country, it’s desirable to have state support, because the existence and functioning of spolitical parties have critical implications on the health of the state.”

I’m amazed that DPT politicians continue to expect state funding for their party. After all, the first session of the parliament had decided that state funding for political parties would be unconstitutional. And it had resolved that the state would not fund political parties. So I’m surprised to see that our politicians continue to expect state support.

In fact, I’m concerned that our politicians and that our government may be preparing to justify state funding for political parties all over again. If this is so – and the Kuensel article makes me believe that it is so – then our politicians may try to approve state funding even though they themselves resolved, less than a year ago, that such funding would be unconstitutional. And that is cause for serious concern.

Raising funds honourably

I was surprised to learn that “… the Druk Phuensum Tshogpa (DPT) leaders recently told their members of parliament (MPs) to raise money for the party.” (Read the Kuensel article). This is illegal. And I’m sure that the DPT leaders know that this is illegal.

The National Assembly Act of the Kingdom of Bhutan, 2008 forbids members of the National Assembly from fund raising. Section 54 under Chapter 7 (Role and Responsibility of the Members) specifically states that “A member shall not resort to any form of fund raising from individuals or ay agency.”

I’ve already accepted that we must be vigilant against our government’s tendency to disregard the law. But this is ridiculous. After all, we, the honourable members of parliament, were the ones who studied, debated and passed a law that prohibits MPs from engaging in fund raising. That law has been in place for not even a year, and it risks being broken by the very people who framed it.