According to Rule 4.5 of the Elections Conduct Rule 2022, candidates vying for elective office who resign without reasonable justification, as determined by the Commission, face penalties including a 360-day fine equivalent to the minimum wage, refunding all state campaign funds received for parliamentary or local government elections, and disqualification from future elections. While implemented with good intentions to safeguard democracy, this provision raises concerns among political parties, politicians, voters, and the legal fraternity regarding the Election Commission of Bhutan’s (ECB) authority in post-election matters.
Article 24 (1) and (4) of the Constitution limits the ECB’s mandate to encompass the preparation, maintenance, and periodic updating of electoral rolls and election schedules. Additionally, it involves overseeing and conducting elections in a fair and unbiased manner, as well as delimiting constituencies for parliamentary and local government elections. The Election Act of Bhutan 2008 mandates the ECB with responsibilities such as political party registration, public awareness promotion, provision of information and advice on referendums, facilitation of media coverage, rule-making, introduction of voting devices or systems, conducting electoral research, scheduling and rescheduling elections, and similar functions.
Furthermore, the Elections Conduct Rule in the Kingdom of Bhutan for 2022 itself defines its scope solely pertaining to conduct of elections and forbids from contravening the Election Act of 2008 or superseding prevailing laws in the country.
Moreover, both the National Assembly Act and the National Council Act specify that a member of the respective House may submit a written resignation during a session addressed to the Speaker or chairperson. If the House is not in session, the resignation can be submitted to the Secretary General, with the authority to accept or reject the resignation resting with the Speaker or chairperson. Similarly, local government Act 2009 provides that “A member of a LG can voluntarily resign by submitting a resignation letter to the chairperson. In case the chairperson is unavailable or if the member intending to resign is the chairperson, the letter should be submitted to the deputy chairperson. Once the resignation letter is received and accepted by the chairperson or deputy chairperson, the member is considered to have vacated the seat and will no longer hold the position in the local government.
It appears that this rule not only infringes upon the Election Act, the overarching legislation governing elections, but also conflicts with constitutional provisions and the NA, NA, and LG Acts. Article 20 of the Constitution explicitly establishes parliamentary sovereignty in all legislative matters, emphasizing the legislature’s paramount authority.
His Majesty emphasised that “power does not rest in the hands of one or two individuals, but with all the people across the twenty districts.” His Majesty remined that it is the duty of the voters to assess the quality of elected members through elections, rather than allowing any other entity to make that determination.
The ECB’s rationale aims to ensure candidates for elective positions are committed to serving the nation and its people, fostering trust and confidence among the electorate. However, the decision to impose such provisions should be entrusted to the voters. If necessary, any relevant provisions should be incorporated into the National Assembly (NA) and National Council (NC) Acts, as they govern post-election matters. If an elected member resigns before the tenure, voters can vote out such candidates in future. The resignation of an elected member cannot be presumed as not serving the nation with commitment.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.