Law: The National Law Review Taskforce (NLRT) will review and propose changes to harmonise the conflicting provisions of the electoral laws with the Constitution although the Supreme Court (SC) earlier said a commission should be constituted for the same.
Issuing a writ on August 5 last year, the apex court stated that a high-level commission comprising experts from relevant fields should review and harmonise the Election Act 2008, the Local Government Act and the Constitution. Some provisions of the Acts are inconsistent with the Constitution.
However, NLRT chairperson and Attorney General Shera Lhundup said the two Acts are also among about 150 laws that the task force is reviewing. The task force was instituted a few years back by the government.
“We will review and propose changes. It’s up to the government and the Parliament to endorse them,” he said.
A government source said the SC writ does not name the agency responsible for formation of the commission. However, the Attorney General said it depends on the government whether or not to form the commission.
Some inconsistencies in the electoral laws and the Constitution have already surfaced, creating confusion for the Election Commission of Bhutan during the first phase of the second local government elections in January last year.
For instance, Article 24, section 5, of Constitution states that the National Assembly and local governments should be re-constituted within 90 days after they are dissolved either prematurely or on completion of their term. And only in the case of National Council should the elections be held before the expiry of their term.
On the contrary, Section 196 of the election Act states that the elections for local governments should be held so as to ensure that they are reconstituted by the end of their term.
Provisions of any law, whether made before or after the coming into force of the Constitution, which are inconsistent with Constitution, are considered null and void.
If the laws are to be reviewed and harmonised in complete, there is also a need to review Article 22(7) of the Constitution itself.
Article 22(7) states that a gewog shall be divided into chiwogs for the election of the tshogpas to the gewog tshogde (GT). However, it also states that “the gup and mangmi, who are elected by the people of the gewog shall be the members of the GT”.
The Local Government Act states that a gewog shall have a GT consisting of not less than seven and not more than 10 elected tshogpas, including the gup and mangmi, chosen by direct election.
The Local Government Act 2009 classified dzongkhag thromdes into Classes A and B. But Parliament amended the Act in 2014 and made it mandatory for the government to establish dzongkhag thromde tshogdes and yenlag thromdes in all 20 dzongkhags.
Article 22(2) of the Constitution states: “Bhutan shall have local governments in each of the twenty dzongkhags comprising the dzongkhag tshogdu, gewog tshogde and thromde tshogde.” However, the writ stated that the Constitution should not be interpreted solely based on this single provision.
Meanwhile, the Legislative Committee of the National Assembly has recommended the NLRT to review provisions concerning rape of a child above 12 years, use of handcuff vis-a-vis human rights violation for possible amendment, handling of cyber crimes and possibilities to empower police to give bail for petty offenses.
Another recommendation of the committee to the NLRT is to review whether or not corruption cases can be considered as a heinous crime.
The committee has also recommended the task force to review legal issues regarding defamation and guidelines for issuing a security clearance certificate to those who had served prison terms. The NLRTF is also expected to review the cooling-off period for members of the National Assembly.
The committee has also recommended allocating adequate funds to NLRT with full time members and a specific deadline to complete the task.