The disqualification of aspiring local government candidates dominated the national headlines this week. While candidates knocked on the door of the judiciary to rescue them, their supporters demanded an explanation from Anti-Corruption Commission. Yet these institutions refused to budge an inch. However, reasons cited to disqualify these candidates’ cast doubts and ambiguity to many. Was the decision based on constitutional values and established laws of the country? 

Article 23 Section 4 of the Constitution provides six grounds for disqualification of candidates in an election. Article 23 Section 4(g) authorizes the parliament to determine additional criteria to disqualify. Consequently, the parliament under Section 179 of the Election Act of Bhutan, 2008 came up with twelve grounds for disqualification. The current drama on disqualification seems to be due to section 179 (g) of the Act. This section states 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 a felony in a pending case and the competent Court has taken cognizance and charges have been framed against him/her.” 

Elementising thus section, to disqualify a candidate, there must be an accusation. The accusation must be such a nature that if convicted would be a criminal offence constituting a felony. The case can be pending but the accusation must be recognized by the court and charges must have been filed against the candidate. In short, under this section if the candidate is charged with a felony, admitted the case by the court, there is no need to prove the case. This is a high standard far beyond requiring mere complaints or allegations of corruption. Section 3 (a) of the Penal Code defines a felony as “a minimum term of imprisonment of three years” if convicted for that crime. 

Now the question is if revocation of audit clearances or mere allegations of corruption can be justified under Section 179(g) of the Act. If it qualifies, then the Election Commission is right in disqualification of candidates. For example, during the last National Assembly, one of the DNT candidates did not get disqualified though he was charged for fraud in the court already because the accusations were not a felony even if he is convicted. But if the court eventually convicts the defendant, irrespective of the severity of the crime, the candidate will still  be disqualified by Section 179(a) of the Act even if the candidate got elected already.

While our media including Kuensel made numerous confusing reports, Kuensel rightly pointed out that “as the election approaches, every Dorji, Karma or Sonam will file complaints against any candidate.” Probably this is a reason why the parliament set the standard much higher. The legislative intent for requiring such a high standard of including admission by the court is to ensure that accusations or allegations are genuine and there is a prima facie serious criminal offence committed. 

His Majesty said “local government is not the lowest level of government. It is the nearest and closest level of government for our people.” The electoral institutions must exercise their authority very cautiously as disqualification of any candidate wrongly will shut down the democracy itself through deprivation of choice for voters. There is an immediate need to determine mere allegations of corruption is a ground for disqualification. Voters and candidates will suffer  irreparable harm if any candidate is disqualified wrongly. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.