Elected members should leave office on conviction: Supreme Court

Judiciary: Any elected member would have to leave office even if convicted and sentenced for a day, according to the Supreme Court.

This issue had remained unclear until now on whether a convicted elected official should be removed from office or not because the laws were not specific on the duration of a sentence.

The Constitution states that ‘a person shall be disqualified as a candidate or a member holding an elective office under the Constitution, if the person is convicted for any criminal offence and sentenced to imprisonment”.

The Election Act of Bhutan 2008 disqualifies a member holding an elective office if the individual has been convicted of a criminal offence and sentenced to imprisonment.

The former speaker on endorsing the Act had also remarked that the elected official should vacate office  even though sentenced for a day.

Recently, the Supreme Court sentenced the Thimphu dzongkhag tshogdu chairperson who is also the Kawang gup for his involvement in a fraud land case to six months imprisonment.

In another case, the Gakidling dungkhag court sentenced the Gakidling gup to 15 months. He has appealed to the Haa district court.

On July 8, the Supreme Court Chief Justice also issued a notice to the Royal Bhutan Police and the Office of the Attorney General stating that two prosecuting agencies, must inform the executive and the parent agencies of the convicted officials to enforce the judgments passed by different courts across the country.

The notification comes after the Election Commission of Bhutan wrote to the Supreme Court Chief Justice on April 10 asking the courts to send a copy of the verdict of convicted elected officials to the commission.

Chief Justice Lyonpo Tshering Wangchuk said, “The judiciary is only responsible for dispensing justice following due process of law,” he said. “Enforcement is the responsibility of the executive.”

The Chief Justice said that as police and the OAG register cases in the court, if any officials, including the elected members, are convicted the two prosecuting agencies must inform the parent agencies of the officials.

The Civil and Criminal Procedure Code of Bhutan states “The executive shall have a duty to provide for the execution of the judgments of all the courts.”

The Royal Bhutan Police Act 2009 states that the police have the power to prosecute any person for any criminal offence other than misdemeanour and above.

The OAG prosecutes the rest of the cases.

The Chief Justice said that for instance, the police or OAG should inform the National Council’s chairperson if the convict is a member of the Council, National Assembly Speaker or the Department of Local Government under the home ministry if the convicted is a NA member or if an official is an elected member.

Meanwhile, the lack of enforcement of judgments of courts remains one of the biggest hurdles in tackling corruption in the country, Anti-Corruption Commission report 2014 stated.

While a general understanding is that the executive must implement the judgment of the courts, it was unclear as to who should implement it.

“In the absence of a clear system, no one takes the lead,” the report said.

The commission reported that judgment implementation at best has been done on a case-by-case basis in the past. Long after the judgments of the courts, restitution or recovery of proceeds of crime or administrative action still remained undone.

“In the final analysis, without or delayed judgment implementation, an entire cycle of the criminal justice system is rendered ineffective and investigation and prosecution redundant, wasting of huge public resources,” the commission reported.

By Rinzin Wangchuk &  Tshering Palden

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