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.

On ECB’s side

Elections are the single most important part of a democracy. They allow people to participate in the democratic process by directly choosing who they want as their representatives in the parliament. And they provide political legitimacy to elected representatives and to democratic governments. That’s why it’s important to allow as many people as possible to take part in elections.

So, naturally, I’m happy to hear that the Election Commission has decided to allow Bhutanese citizens living in America to use postal ballots in the next elections. They were not allowed to do so in the past, and, as such, most of them could not exercise their right to vote. I applaud the ECB’s decision, and am fully committed to supporting any initiative that makes it easier for even more of our people to take part in the democratic process.

But I am alarmed at the ECB’s justification for their decision. The chief election commissioner has gone on record to state that the ECB’s decision was “the result of the commitment prime minister made during one of his visits as the head of the government.”

The prime minister cannot alter the electoral system; only parliament can.

What ECB can do, and must do, as long as it is within the framework of our electoral laws, is improve the system to encourage and allow more of our people to exercise the their franchise. But what ECB does, they must do because they feel it is in the best interest of democracy, and not as a “result of the commitment” that a politician may have made.

Otherwise, ECB may be seen to be taking sides. And that won’t be good for democracy.

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.

Well done ECB

The Election Commission of Bhutan have now completed seven rounds of elections. Of the seven, last Monday’s local government elections was by far the largest and most complex. It was also the most successful.

ECB officials, including those in the dzongkhags, worked round the clock, for months on end, to organize the elections. They were assisted by about 150 senior civil servants who were on deputation since early April this year to work as observers and returning officers.

And more than 5,500 election officials, most of them teachers, were trained and dispatched to man the 1,103 polling stations located throughout our country.

In addition, thousands of workers contributed their services indirectly. They were the ones who kept our roads open, telephones working, banks running and electricity functioning. Plus countless security personal worked to ensure the safety of the elections.

On poll day, despite the rains, a decent 56% of registered voters turned up to cast their ballots. Of the 2,185 candidates who contested the elections, 1,105 won becoming gups, mangmis, tshogpas and thromde thuemis in accordance with the Constitution.

The mammoth exercise cost the State Nu 225 million. But the election is worth the money. And worth the time. And the huge effort.

Why? Because the Constitution requires “… elected Local Governments to facilitate the direct participation of the people in the development and management of their own social, economic and environmental well-being”. And that, in short, is what our democracy is all about.

Incidentally, the first elections that the ECB conducted was the “mock elections” on 21st April 2007 in which “Druk Yellow Party” and “Druk Red Party” emerged as the two leading parties.

On 28th May 2007, ECB conducted another “mock election” in which the “Druk Yellow Party” trounced the “Druk Red Party” winning 46 of the 47 constituencies.

On 31st December 2007, the ECB conducted the National Council elections, which became the first elections to be conducted under the Constitution. On 29th January 2008, National Council elections were held for the 5 dzongkhags that did not have sufficient candidates earlier.

On 24th March 2008, the first general elections to the National Assembly was conducted in which DPT clobbered the PDP winning 45 of the 47 constituencies.

And on 21st January 2011, Thromde elections were conducted in the four so-called “Class A” thromdes.

The banner, featuring voters in Meewang gewog’s Khasatrapchu polling station, celebrates the successes of the Election Commission of Bhutan.

Right to choose

The Chief Election Commissioner has released a pamphlet “… to share a few concerns of the Election Commission and clarify certain issues”

The Election Commission requests all of us to forward and redistribute their pamphlet to other Bhutanese.

 


 

 

Quiet!

Several readers have repeatedly asked me why the opposition party had not taken the ECB to court for disregarding the Constitution during the recent thromde elections.

“Guardian”, for example, has argued that since the opposition had taken the government to court for violating the Constitution, it should, by the same measure, also take the ECB to court for allowing candidates to stand for election even though they had not been registered in their respective constituencies for the minimum one-year period. And

Since I hadn’t responded to these concerns, “Guardian” challenged, on several posts, that “by going against the government proved only one thing and that OL was protecting his well off and well connected cronies”.

And demanded to know “Why is the OL happy to let the ECB do things that are in complete contravention of the constitution and yet is willing to take the government to court even when he knows that the raising of vehicle tax would affect the rich more than the poor of Bhutan.”

I know that no amount of explaining will satisfy “Guardian”, simply because “Guardian”, whoever he or she is, understands the Constitution and the democratic process very well.

“Guardian” is fully aware that the constitutional case was about the procedure of imposing taxes, and not about objections to any particular tax, including the tax of vehicles.

“Guardian” is also fully aware of the opposition party’s roles and responsibilities set down in Article 18 of the Constitution:

  1. The Opposition Party shall play a constructive role to ensure that the Government and the ruling party function in accordance with the provisions of this Constitution, provide good governance and strive to promote the national interest and fulfil the aspirations of the people.
  2. The Opposition Party shall promote national integrity, unity and harmony, and co-operation among all sections of society.
  3. The Opposition Party shall endeavour to promote and engage in constructive and responsible debate in Parliament while providing healthy and dignified opposition to the Government.
  4. The Opposition Party shall not allow party interests to prevail over the national interest. Its aim must be to make the Government responsible, accountable and transparent.
  5. The Opposition Party shall have the right to oppose the elected Government, to articulate alternative policy positions and to question the Government’s conduct of public business.
  6. The Opposition Party shall aid and support the Government in times of external threat, natural calamities and such other national crises when the security and national interest of the country is at stake.

By Article 18, it is the duty of the opposition party to ensure that the government does not violate the Constitution. That’s why we took the government to court for violating the Constitution.

But what if ECB, other constitutional bodies, or independent agencies violate the Constitution? Can the opposition take them to court? I don’t think so. The Constitution does not empower the opposition to ensure that they function in accordance with the provisions of the Constitution. That check and balance is provided in other parts of the Constitution, including Article 13 – Impeachment.

So why did the opposition party write to the ECB when it risked violating the Constitution? Because Article 8 Section 11 of the Constitution requires that “Every person shall have the duty and responsibility to respect and abide by the provisions of this Constitution”.

The opposition party, like any other citizen, can write to the ECB alerting them of violations of the Constitution. And that’s what we did.

But taking them to court is another matter. The opposition party may not have the legal mandate to do so. And that’s why we’ve kept quiet.

2 Letters

I sent two letters today. The first letter was to the Chief Election Commissioner informing him that the ECB’s recent decision to revise the criteria for candidates to local governments may violate provisions of the Constitution, Election Act and the Local Government Act.

The second letter was to the Director of BICMA complaining that The Journalist had quoted me in their article when they hadn’t even interviewed me. And that, in that article, they had inaccurately claimed that I had supported the ECB’s decision.

A voting matter

Counting on machines

India’s electronic voting machines have come under some scrutiny by the media, civil society, politicians and voters. Since we use the same voting machines, our chief election commissioner, Dasho Kunzang Wangdi, clarified that the recent questions surrounding the integrity of the EVMs are:

… nothing to worry about. “I’m not concerned because I’ve seen many EVMs and the Indian EVMs are the best,” he said, adding that he had inspected various EVMs at an international conference in Philippines, where international vendors showcased technology during an exhibition at the election technology conference. “We have no reason to be concerned.”

The chief election commissioner’s confidence in the electronic voting machines is comforting. And his assurances that our EVMs are the best such machines are welcome.

But the very nature of electronic voting means that there will always be EVM critics. They will warn us that machines, being machines, can be tampered with, and that they can malfunction. And they will point out that voters have no way of verifying that their ballots have been actually recorded or counted properly.

So we should ask ourselves: do we really need to use electronic voting?  And we should ask ourselves this basic yet important question, even if we possess the world’s best EVMs.

Remember that our electorate is small and manageable – the 2008 elections had all of 318,465 registered voters. And that, as such, the paper ballot, a technology that’s plain and simple, but one that’s tried and tested, may serve us much more convincingly.

ECB’s right

Testing times

The Election Commission of Bhutan is correct in cautioning the government that the local government elections would be incomplete and unconstitutional if those elections were conducted without first finalizing the yenlag thromdes (satellite towns).

Yenlag thromdes have still not been identified for the Dzongkhags. So holding the local government elections now would, as ECB maintains, result in incomplete Dzongkhag Tshogdus, and risk violating Article 21 Section 9 of the Constitution according to which:

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.

Local government elections have already been seriously delayed. As such, development work at the gewogs have suffered. And more importantly, two and a half years after the first general elections, our people continue to be deprived of the main benefit of the democratic process which is to elect and to hold to account their local leaders.

Yes, local government elections must be conducted as soon as possible. But the local governments so elected must be complete and must conform to the laws, especially the Constitution.

So I welcome the chief election commissioner’s announcement that the local government elections “could happen in the spring of 2011”. In the meantime, the government must finalise a complete proposal for yenlag thromdes in every dzongkag, and submit it to the next session of the Parliament scheduled for November this year.

And, one more thing: the government must desist from advocating the idea that certain parts of the Constitution do not have to be implemented immediately. The Constitution “is the Supreme Law of the State” (Article 1 Section 9), and, as such, it must be implemented immediately and in its entirety. Anything less is disrespectful to the Constitution and is dangerous for democracy.

In this regard, the government would be well advised to withdraw its statement, justifying local government elections without yenlag thromdes, that:

… the decision on whether all the conditions listed in the Constitution should be established immediately, regardless of the ground realities, should be left to the parliament and government

Photo credit: BBS

Testing ourselves

Functional literacy?

The ECB’s “functional literacy and skills test” for candidates to local government elections is comprehensive. Aspiring candidates will have to take a written test to determine their computational, analytical, managerial and correspondence skills. And they will have to undergo an oral test to demonstrate their reading, writing and speaking skills.

ECB’s diligence will, no doubt, ensure that only the most competent can stand for the local government elections. And, that must be good.

But I’ve been wondering: how many of our current MPs would have passed the functional literacy and skills test?

I don’t know about my colleagues in the Parliament, but since the test is conducted in Dzongkha, I, for one, would have failed.

Photo credit: Bhutan Observer showing graduates re-learning Dzongkha for RCSC exams.