The High Court (HC) on April 12 dismissed the injunction request an aspirant had made to keep the National Council election for Thimphu dzongkhag in abeyance.
Thimphu Thromde’s National Council aspirant Sonam Penjor had submitted a petition to Court against the Election Commission of Bhutan’s (ECB) decision concerning document attestation.
HC’s acting chief justice, Sangay Khandu, after conducting a miscellaneous hearing on April 9, ruled that the court could not entertain Sonam Penjor’s plea as per the notification/order issued by the Supreme Court (SC) related to elections dispute on March 31, 2011 and Section 34 of the Election Act 2008.
The court order stated that ECB had cleared that NC candidate Tshokey Dorji could contest in election after having screened all the relevant documents and certificates of aspirant candidates required before the nomination process of candidates.
“On this ground, the court hereby dismissed the injunction request submitted by the appellant,” the court order stated quoting the SC’s notification of 2011.
The SC’s notification, which was issued after the first local government elections in 2011, stated that a complainant could appeal to the court of law if he or she is not satisfied with the ECB’s decision. It also stated that the court should not accept unnecessary complaints and insignificant issues related to election dispute. “Therefore, the court should dismiss insignificant issues like minor compensation or small errors and follow the principles of law,” the SC notification issued on July 19, 2011 stated.
However, the SC had not specified the attorney power of document attestations.
“I respect the High Court’s decision,” Sonam Penjor said after the court’s ruling. “However, I am not satisfied with the decision because it failed to address the issues I raised with sufficient legal reasoning.”
One of his prime complaints to the HC, according to Sonam Penjor, was on a guideline issued by Bhutan Accreditation Council (BAC)/Department of Adult and Higher Education (DAHE) on July 29, 2017 about attestation of college degrees, which was to be followed by all aspiring candidates.
“Only Tshokey Dorji from the 130 aspiring NC candidates did not follow this guideline of getting his college attestation from his university. Two candidates got disqualified for not getting their attestation on time,” he alleged.
“For the benefit of future aspiring candidates and also to point out lapses in the degree attestation process, I raised many legal issues in my appeal petition and I expected the HC to address each of them by giving sufficient legal reasoning,” Sonam Penjor told Kuensel.
“Given the facts and circumstances of the case, the HC’s application of the Election Act’s section 34 to the issues I raised is irrelevant,” he said.
Section 34 mandates the ECB to hold free and fair elections. It gives ECB a supervisory role in conducting a free and fair election.
Sonam Penjor was one of the four candidates from Thimphu Thromde who contested at the Dhamngoi Zomdu on March 8. He filed a complaint to ECB on March 12 alleging that BAC and DAHE had allowed Tshokey Dorji to seek a letter of authentication from the Supreme Court and had not given him a level playing field.
ECB on March 31 issued its decision based on its findings, which concluded that BAC and DAHE did not give preferential treatment to Tshokey Dorji.
Sonam Penjor also challenged that the rule to get attestation from local sources like SC was known to the public through the notification in Kuensel only on March 31 this year.
On March 6, the Supreme Court’s registrar general issued a letter to BAC stating that Tshokey Dorji had completed a full-time five-year LLB from the University of Mumbai, India. BAC on March 5 had said that the top court could authenticate law degrees. “Hence, Tshokey Dorji’s attestation on March 6 does not conform to the guidelines which BAC/DAHE themselves have prescribed and rules cannot be bent or made only for one person,” he stated in his appeal letter to the HC.
Some observers pointed out the as per section 10, Article 21 of the Constitution, the court is the final authority to issue such declarations, orders, directions or writs as may be appropriate in the circumstances of each case. “However, the court also needs to consider and address which agency should be a final authority to authenticate and attest degree certificates for future aspiring candidates,” an observer said.