With the closure of the defamation case against a private citizen by the Royal Bhutan Police, the individual won the case, but the nation lost its right to criticize the state agencies. Though the judiciary reassured the citizen’s right to free speech in this case, it also opened a new door, the ability of public institutions to sue private citizens for defamation. Neither parties, in this case, argued if the state agencies can sue individuals nor did the court dwell on this important aspect in light of the democratic set-up. Thus, this judgment is a cause of concern among the public as now any government agency can sue individuals for defamation.  Such an unprecedented decision further emboldens the state agencies to take such steps against private citizens.

Article 1 (1) of the Constitution states that “Bhutan is the Sovereign Kingdom, and the Sovereign power belongs to the people of Bhutan.” Explaining this Article, His Majesty the 4th King said “the sovereign power of the Kingdom has been purposely left to the Bhutanese people. The Sovereign power has been kept with the people in trust and confidence upon the people of Bhutan.” His Majesty said “With the introduction of democratic governance in Bhutan, we, the people need to keep in mind that the power lies with all the Bhutanese citizens. The power is in the hands of all the people of the twenty Dzongkhags. The people of Bhutan are entrusted with heavy responsibility.”   Chairman of the Constitution Drafting Committee noted that “we the people represent the collective will of the Bhutanese people and symbolizes the source of power emerges from people.” Public scrutiny of public officials and state agencies including public criticism which need not necessarily always be true is one of the primary responsibilities of the public to hold the public officials and state agencies accountable, force transparency and strengthen true democratic values.

Most European courts held that “although it must not overstep various bounds set, free speech “affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. It allows public officials to reflect and comment on the preoccupations of public opinion” and enables everyone to participate freely in the governance which is at the very core of the concept of a democratic society.

In the Canadian common law, governments cannot bring defamation actions against citizens and courts ruled that in a “democratic discourse, the public nature of a government’s reputation and the fact that governments generally can speak out to try to correct misinformation about themselves” the state agencies cannot sure individual citizens. The American courts also held that “governments are servants of the people, and the people, therefore, have a right to criticize them. Given the sovereignty of the people, speech critical of government enjoys an absolute privilege unless it advocates the law-breaking or violent overthrow of the government.” Similarly, the House of Lords in the United Kingdom opined that “a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. Australian courts described that public bodies cannot sue in defamation because of the importance of unfettered speech about them and this applies to every public office institution. Judiciary must weigh such cases beyond the parties’ arguments to foster democratic values in deciding such important cases.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.