The Office of the Media Arbitrator’s investigation has found that the Facebook post by former National Council chairperson Dasho Sonam Kinga (PhD) is a third party election advertising under section 7.2 of the Social Media Rules.
The investigation found Dasho Sonam Kinga’s Facebook post in violation of Section 4.4 of the Social Media Rules, as the post has possible means of reducing the electoral chances of the complainant’s (DPT) political party.
The findings state that Dasho Sonam Kinga is not a registered member or candidate of any political party or election representative of any candidate or political party. It found that the content of his post opposes the complainant’s political party (DPT) contesting an election.
While aware of and respecting the fundamental right of Dasho Sonam Kinga, “…to freedom of speech, opinion, and expression,” the OMA states that it also took due consideration of his fundamental duty “… to act in aid of the law” vis-à-vis the duty and responsibility of the complainee (Dasho Sonam Kinga) to respect and abide by the provisions of the laws.
“The fact that the fundamental rights are not absolute, the Office is of the view that while the complainee exercised his fundamental rights; at the given point of time, he failed to perform and act up to his fundamental duties,” the findings states.
The Office concluded that, “the complainee posted his article on Social media at an inappropriate time, as social media users are prohibited from conveying such communication over social media during the election period.”
The arbitrator submitted its findings to the election commission on September 6.
Central Election Dispute Settlement Body
The Central Election Dispute Settlement Body at the Democracy House held its first hearing yesterday on the complaint the DPT had lodged against Dasho Sonam Kinga for his August 31 post on Facebook about the 2008 elections.
The hearing, which lasted for about four hours heard both the parties and shared with them the findings of Media Arbitrator’s investigation into the complaint.
DPT’s complaint states the case of controversy as, “derogatory post by Dasho Dr Sonam Kinga during election period after repeated notification from the Election Commission of Bhutan.” The post, DPT states, “violates the election notification and regulation and it contains a story with presumable intention to demonise the party.”
On August 31 morning, Dasho Sonam Kinga posted on his Facebook page saying that he has finished his book “Political Contests as Moral Battles” A perspective on Bhutan’s democratic transition about 2008 elections. He said the book is partially based on his Ph.D dissertation (2010) and hopes to publish it in December this year.
“I am sharing today a summary of the book for those of you who are interested to know what it is about. It is about how DPT won and lost elections and many more things related to pre and post 2008 elections!”
Dasho Sonam Kinga’s response
In his 15-page response to DPT’s complaint and counter-charges to DPT, which he submitted to the commission, Dasho Sonam Kinga states that his Facebook post does not violate the repeated election notification because it was made before the notification in the media.
“I posted on my Facebook the summary of my forthcoming book at 8.57am on August 31, 2018 whereas ECB’s notifications were broadcast on BBS TV only that evening. The print copies were published in newspapers only the following day. Therefore, DPT’s accusation that I have not respected the repeated notification on BBS does not hold water,” Dasho Sonam Kinga’s response states.
He states that the Media Arbitrator has not taken this factor into consideration when submitting its finding and conclusions.
The election commission’s public notification calling the third parliamentary elections on August 20 mentions the use of social media. Section X (117) states, “all electoral stakeholders may use social media for election or campaign purposes but shall ensure to abide by the electoral laws, election code of conduct and specifically adhere to the requirements under the ECB Social Media Rules of the Kingdom of Bhutan, 2018.”
Dasho Sonam Kinga gives three reasons for the timing of his post, which falls during the election period. First, he states that he posted the summary of his book on Facebook before ECB’s notification appeared on BBS TV and newspapers.
Second, he states that this is not the first time he has posted on social media on social-economic and political matters. “My posting is not exclusive to this time but a continuation of my academic interest and the interest to share with others at different formal and informal forums.”
Third, he said that he has many friends on Facebook and many of them are young people, who read his posts and with whom he interacts to discuss issues of various concerns for them. “The interests may be personal, constituency-based or academic. I know that my book would be of interest to them, and took an opportunity to promote it on social media. I have posted about two forthcoming books, not one! That would also establish the intent of such a post. If it were just one, there is the benefit of doubt of political intent.”
He states that the book is based on his Ph.D dissertation and was written in 2010. But, he could not publish it because of his apolitical position as member, deputy chairperson and chairperson of the National Council. “I withheld the book for eight years without publishing. I could have done it as Ph.D dissertation if I really wanted to harm, damage and discredit DPT. But I did not!” he states. “After leaving office four months ago, I had the opportunity to write two additional chapters, and hence completed my writing in the last week of August 2018. This is a small window of opportunity for me. I could be working in an apolitical way or apolitical organisation in a few months. This is the time I have at my disposal for writing and sharing.”
He states that the post made from an authentic account is based on concrete evidences and source materials. “It does not discuss anything that is new or unknown to Bhutanese people.”
DPT’s complaint, he states, also violates his fundamental right to freedom of speech, opinion and expression, which is enforceable in a court of law. “This is at the heart of a vibrant democracy. Unless restrained by Sections a-f of Article 7.22 of the Constitution, the exercise of this right cannot be confined or limited to certain seasons or events. I invoke this right in the context of the complaint lodged by DPT,” he states. “Freedom of speech, opinion and expression is at the heart of liberal democracy! I request ECB to consider whether the Social Media Rules harmonise with this important provision of the Constitution.”
On DPT’s complaint about how his post reduced its electoral chances, Dasho Sonam Kinga said that the evidence DPT provided at the hearing is less substantive and more assumptive and apprehensive. “Although my post has no political objective, I believe it should be welcomed rather than criticised for contributing to a discourse that will result in the assessing of political choices and making decisions.”
His WeChat message that translates orally the text on Facebook, he said, is compelled by DPT’s premature recourse to news media. “I have withheld talking to the media by believing the case is sub-judice with ECB. After news report by BBS and Kuensel, many friends, well-wishers and family members called and texted me as to what I have done. They don’t read English, and hence I had to explain what I wrote on it.”
DPT’s secretary general Sangay Phurpa said that DPT’s stand on the issue is very clear. “Our complaint is not about questioning the facts. It is about the timing of the post.”
Whatever motive Dasho Sonam Kinga had in timing his post just before primary elections, it is not going to deter people from supporting DPT, the party president Pema Gyamtsho said. “People know that DPT serves the TsawaSum in letter and spirit and will never undermine the sanctity of the sacred institution of the monarchy nor the peace and unity among our people. Divisive elements and forces will not deter us from participating in the elections and will only strengthen our collective resolve.”
ECB Social Media Rules, 2018 & Constitution
Section 4.4 – No individual shall communicate/transmit/post hate messages or any content with intent to defame or reduce the electoral chances of an opposing contestant or Political Party.
Section 7.2 – Third Party Election Advertising or any political advertising in print, broadcast or online on behalf of a Political Party or a Candidate shall be prohibited if run by any individual other than a registered member of a Political Party or Candidate or their election representative with the purpose of promoting or opposing, directly or indirectly, a Political Party or Candidate contesting in an election.
Article 7 (22) of the Constitution
Notwithstanding the rights conferred by this Constitution, nothing in this Article shall prevent the State from subjecting reasonable restriction by law, when it concerns:
(a) The interests of the sovereignty, security, unity and integrity of Bhutan;
(b) The interests of peace, stability and well-being of the nation;
(c) The interests of friendly relations with foreign States;
(d) Incitement to an offence on the grounds of race, sex, language, religion or region;
(e) The disclosure of information received in regard to the affairs of the State or in discharge of official duties; or
(f) The rights and freedom of others.