The recently enacted Civil Liability Act of Bhutan draft contained comprehensive mechanism to hold public authorities accountable, but such accountability was lost in legislation mainly after the joint sitting. This law is toothless particularly the accountabilities of public authorities.

Section 62(2) protects the authorities where they can justify their negligence based on the lack of financial resources. Section 62(3) mandates a comprehensive assessment of the authority’s overall functions, stating, “the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities, and not only by reference to the matter to which the proceeding relates.” This holistic approach provides a more accurate determination of the nature of the authority’s functions. This prevents the adoption of a narrow view and cherry-picking of single actions out of context, making it extremely difficult for the public to take affirmative actions against state agencies and public authorities.

This provision gives authorities a legitimate defense to stand behind if their actions align with policies and rules they are expected to follow. For example, if a government agency makes a decision as part of its standard decision-making process, it can point to compliance with those procedures as evidence that it acted properly. They don’t need to justify every small decision, as long as they adhere to the right processes. However, this provision does enhance transparency and accountability that they followed the proper codified procedures and standards but not adequate enough to hold public authorities accountable for their failures.

Section 63 makes it clear that this chapter of the Act applies to legal proceedings seeking damages related to an alleged breach of statutory duty by a public authority in connection with carrying out (or failing to carry out) its functions. This mandate ensures that public authorities can be held accountable if their actions, or lack of action, cause harm by violating a statutory duty. However, the scope is narrowly focused on damages for breaches of legal obligations, rather than covering any misconduct by authorities. This section is limited to monetary remedies for specific breaches of statutory duties of public bodies.

To constitute a breach of statutory duty, the act or omission of the authority must be so unreasonable that no authority with similar functions could consider it reasonable (Section 64). The Act places a duty on public authorities to construct or maintain public places in a reasonably safe condition for public use (Section 65). This provision recognizes the importance of public safety and emphasizes that public authorities cannot absolve themselves of responsibility by entrusting these tasks to contractors. If the contractor’s negligence results in physical harm, the public authority remains liable.

Section 66 of the Act limits the liability of public authorities for harm arising from a failure to maintain, repair, or renew a road. The authority is only liable if it knew or should have known of the particular risk that caused harm, and the harm occurred while the road was open for travel during construction, maintenance, or repair. This aspect, however, raises concerns about the Act’s ability to fully achieve its intended objective of fixing accountability.

In conclusion, while the Civil Liability Act of Bhutan 2023 strikes a balance between the responsibilities of public authorities and their limitations, certain aspects may require further evaluation to ensure effective accountability without hindering the efficient functioning of these authorities.

Sonam Tshering

Lawyer, Thimphu

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