Last week Kuensel published an opinion where the author mentioned that “none can vote in an election, anywhere, on mere residency” which is factually incorrect. Let us look at examples.
The Election Commission of India posted on their website that in India not only the residents but also students and homeless people in that locality are given the right to vote in the municipal elections, which are implemented in all major municipal elections in India. In Japan, the voting right is currently given to residents holding Japanese citizenship. A proposal to give the same right to foreigners residing in big cities like Tokyo is being discussed. The reason is that a resident must have the right to “express their will over issues that their local communities face as they are paying taxes and fulfilling other civic obligations.”
Title II of the Treaty on European Union guarantees not just the right to vote but also stand as a candidate in municipal elections in the Member State of residency “without actually substituting it for the right to vote and to stand as a candidate” in their own country. Further countries such as Sweden, the Netherlands, Belgium, the United Kingdom, Switzerland, Malawi, Uruguay, New Zealand and Luxembourg already have even allowed non-citizen residents to vote in municipal elections with a varying requirement for the duration of residence in that city. However, such rights are rarely given in the national elections because the national representative takes policy decisions and make laws, including those for the security of the country.
The Wall Street reported that in the United States, the right to vote in municipal elections is now afforded to both homeless and green cardholders in big cities like Chicago, New York, and Maryland. In Australia, the residents of the local government of Victoria states are entitled to vote for a councillor to represent their ward or municipal district or council elections. This is because, by history, the seed of democracy originated with an institution of city elections such as Athens to Rome to Italian republics centuries before the concept of state and governance emerged.
The author of the perspective further said, “A few writers were found outrageously instigating through Kuensel, without really understanding the rationale of the existing laws, that every resident of a thromde can vote.” The use of words “outrageously instigating” is a sign that the author cannot engage in healthy discourse, debate, and respect for differing views. The author seems to have not fully understood the actual intentions of the Constitution and election laws. There is indeed some ambiguity in the existing laws, but laws must be interpreted liberally as it is about the promotion of democratic values and empowering the people. The Constitution is a living document, and its rationale and spirits will change with changing time. The current impediment is due to narrow interpretation of the law and not because of explicit provisions of the laws.
Let us examine the existing laws. Article 7 Section 6 of our Constitution recognized the right to vote as a fundamental right because “the sovereign power belongs to the people” under the Constitution. Article 23 provides the procedure for how the power is vested in the people. It states that the “general will of the people shall be the basis of government” expressed through periodic elections. Since the right to vote is a fundamental right, any kind of restriction must be reasonable and within the scope of Article 7(22). Under the current election system, for example, in Thimphu Thromde Election, less than one per cent of the population express their will and “this handful will” is imposed on more than ninety-nine per cent of the population residing in the hromde. Where is the power of people?
Both the Constitution and Election Act protect the right to vote in every election at one’s choice of the constituency. For example, Article 23 (1) (c) ensures the right to vote in the constituency if the voter is “registered in the civil registry of that constituency for not less than one year, before the date of the election” and Sections 100 and 101 provide the same eligibility and adds that such registration in the electoral roll must be for only one constituency.
There are three categories of elections the National Council, the National Assembly and the Local Government. The NC election is a direct election with each dzongkhag as their constituency. The NA election is an indirect election with two or more constituencies in each dzongkhag. The local government, each gewog and thromde, is divided into different constituencies with a minimum of seven constituencies in the case of Thromde Elections by the Constitution. However, for Gups and Thrompons, there is only one constituency. For instance, Thimphu dzongkhag has one constituency for National Council, two constituencies for National Assembly, and many constituencies for LG Elections under each gewog and Thimphu Throm.
Unlike other countries, in Bhutan, there is a requirement of a census or Gung (house number) to enrol in that constituency under the election laws. However, the Constitution does not require this. The Election Act can be amended to remove this confusion. So far, those without a census but owning houses have not been able to vote in the Thromde Elections. Indeed, the Constitution indicate that a Bhutanese can register with different constituencies provided the voter registers with the civil registry.
Such requirement is not different from resident’s right to vote in other countries. In their case, the resident must register with the election authority and here, in our case, one needs to register with the civil registry. Registering with civil registry and the requirement to transfer the entire census is completely different. Further, currently, even the election law nowhere states that census must be transferred; instead only requires registration in respective constituencies.
On the contrary, if one transfers the census from the earlier constituency then, there are devastating consequences and will change the landscape of politics in Bhutan. For example, Thimphu Thromde has over 1.5 lakhs population, and the total eligible voters are less than 10,000 meaning over 1.4 lakh are from other places. If tomorrow 10,000 people from Samtse transfer their entire census to Thimphu, how will five constituencies in Samtse justify having five constituencies during the national elections as population plays a major role in the delimitation of constituencies? It will also cause numerous other legal problems such as right in the joint family properties and inheritance, etc.
His Majesty said, “Local government is not the lowest level of government; it is the nearest and closest level of government for our people. For rural Bhutanese, local governments are indispensable avenues for participation in democracy and development. In the long run, the success of democracy in Bhutan will be determined by the success of local governments.”
Professor Joshua wrote, “If states are laboratories of democracy that may experiment with social policies, then municipalities are test tubes of democracy that also can try out novel democratic rules” because “local jurisdictions” such as in the case of Thromdes, the residents have “sufficient stake in local affairs and have the proper incentives and ability to make informed choices about who should lead them.”
Further, residents are the people who are “closest to their local elected officials, and when individuals have a problem or need something done, they often call their local representative.” Therefore, our authorities must interpret the laws more liberally to promote and encourage people’s participation in any election to strengthen our young democracy.
Contributed by
Sonam Tshering
Lawyer, Thimphu