Participants from the judiciary and the ECB at the two-day meeting in Thimphu

Clarity needed on affidavit issues and conviction records

Issues were raised during a meeting on election dispute settlement between the judiciary and ECB

Issue related to affidavit, one of the documents required at the time of nomination of aspiring political candidates and the election petition procedure were among the main issues discussed during the election dispute settlement system meeting between judiciary and election officials in Thimphu recently.

The discussion on affidavit focused on whether courts are accountable for issuing affidavit to candidates.

A judge said that an affidavit is a declaration from the person and the court is not at all liable. It’s learned that there were two cases related to affidavit issues in the past.

“Affidavit means taking oath from the court with the final statement and if found wrong, the person must be charged for perjury,” a judicial official said.

The issue of whose responsibility it was to find the criminal record of a candidate was also discussed given the problems of human and technical resources in the court.

Election commissioner Deki Pema informed the judges that the local court of justice is the prime holder of information of a person in that jurisdiction.

Besides being challenged to keep track of criminal offences committed abroad, judges also raised concerns on tracing offences committed outside a candidate’s dzongkhag through court records.

The meeting decided to look into the possibility of establishing a committee involving members from relevant institutions involving the judiciary, ACC, RBP, ECB, and OAG through ICT.

Officials from the judiciary also questioned the commission on the unconstitutionality of a clause on non-criminal conviction record in the affidavit form. This clause states that an aspiring candidate must declare that he/she has not been convicted for charges that exceed the prison term of one year and above.

A judiciary official pointed out that the Constitution provides that a person shall be disqualified if he/she has committed any criminal offence and sentenced to imprisonment, which means any convicted crime should result in disqualification.

“The Constitution is the mother of all laws and any laws amended must be in line with it,” a judge said.

ECB officials said they would look into the issue.

The other issue discussed was the definition of the term felony. Section 4.6 of the election guidelines states that “felony” means a non-bailable crime designated as per the Penal Code or other laws of any nation, and that brings a minimum term of sentence of three years for defendant convicted by any competent court of law.

On this, the judges said that the amended Civil and Criminal Procedure Code (2011) provides that offences of third degree and below felony are bailable, although some are not compoundable.

Another issue where the judiciary is directly involved in the election process is the election petition. Judges raised concerns on the need to have a special procedure established for election dispute settlement.

It was pointed out that the month long time for dispute settlement would be barely enough as the aggrieved party must be satisfied with the required number of hearings based on the nature of case.

Supreme Court Chief Justice Tshering Wangchuk advised the judges to fast track election cases, following the due process of law that constitutes the principles of natural justice as much as possible in one’s own jurisdiction.

The judges also pointed out that there is no clear appeal procedure should the disputes reach the court during an election petition period, which is 10 days after the election.

Bhutan National Legal Institute (BNLI) in preparation for the upcoming elections organised the two-day election coordination workshop, which ended on January 22 in Thimphu.

The BNLI officials said the workshop was designed to meet the underlying needs of ECB and the judiciary in relation to election dispute settlement system.

“The workshop is aimed at setting a standard to ensure a common understanding on electoral laws, and adopt uniform practices in election dispute settlement system in the judiciary,” BNLI’s director general, Lobzang Rinzin Yargay said.

The 2008 parliamentary elections recorded 103 disputes while the 2011 LG elections saw 75 cases. In the 2013 election, 59 cases were reported and the 2016 thromde and gewog tshogde election saw 20 cases.

Of them 16 cases reached the dzongkhag courts of which five appealed to the high court. Election dispute settlement bodies resolved the remaining cases.

Tshering Namgyal

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