SC issues writ deferring thromde elections

LG: The Supreme Court (SC), for the first time, issued a writ of mandamus to the Election Commission of Bhutan (ECB) to defer the elections of remaining dzongkhag and yenlag thromdes after coming across several legal and administrative concerns, among others, related to the local government (LG) elections.

The SC’s writ has been issued at a time when the remaining dzongkhags are preparing to hold thromde elections.

Signed by Chief Justice Tshering Wangchuk and two justices, Rinzin Penjor and Tashi Chhozom, the writ states that the SC, being the guardian of the Constitution and the final authority on its interpretation, issues the order to constitute a high-level commission comprising of experts in the related field to review conflicting provisions and harmonise the local government Act, election Act and other related laws.

“Until such time the commission is constituted to review the laws and no specific order has been issued, except for the local government elections in 205 gewogs and thuemi election of Samdrupjongkhar thromde, the remaining dzongkhag and yenlag thromde elections should be deferred,” the writ states.

It also states that if the dzongkhag and yenlag thromdes are established based on the present need, it conflicts with some of provisions of the Constitution.

The main fundamental principle of democracy, according to the writ, is to hold elections through mass participation. If there is no required size of population in the constituencies, the establishment of dzongkhag and yenlag thromdes may not fulfill the constitutional mandate.

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 Constitution should not be interpreted solely based on this single provision. “It should be writ with other related provisions,” the SC’s writ states.

For instance, to institute a thromde tshogde, as per the LG Act, the thromde shall consist of not less than seven and not more than 10 elected members. Should this provision be upheld, a minimum of seven constituencies are required in each thromde. For this to materialise, the delimitation should consider the number of registered voters and size of a demkhong.

The SC, therefore, does not see the rationale to conduct thromde elections in all the dzogkhags in one go. It is stated that thromde elections may be conducted as and when it fulfills the criteria as prescribed by the laws.

The SC, in fact, pronounced all the dzongkhag thromdes “unconstitutional” except for Thimphu. This is because all the dzongkhag thromdes have only six constituencies as per the existing delimitations.

The SC interpreted the Constitution as saying that the thrompon’s role should be defined by Parliament and not be counted as a member of the thromde tshogde. The Constitution also states that the thromde tshogde shall be headed by the thrompon.

Thus, it was interpreted that the thromde tshogde shall have seven elected members and consequently seven constituencies since the thrompon is not included as a member. This provision, as interpreted by the SC is conflicting with the LG Act that includes thrompons in fulfilling the minimum seven and maximum of 10 elected members.

While amending the LG Act in 2014, the government has made it mandatory to institute a dzongkhag and a yenlag thromde in every dzongkhag. The previous provisions of criteria specifying the size and number of voters in a demkhong were also done away with. The government has also pledged to establish a thromde in each dzongkhag. One of the observers said that the government cannot push to fulfill their pledges at the cost of the state and that too in violation of the Constitution.

The SC also revoked the election of three independent thromde thuemis of Thimphu, Phuentsholing and Gelephu because their elections to the post violates Article 22 (6) of the Constitution and Article 12 of the election Act.

The SC directed the ECB to pay them the salary of a mangmi from the day they were elected till the date of issue of the writ.

The election Act also states that the ECB shall, not later than ninety days, before the date of expiration of duration of a LG, announce the date on which the Commission shall issue the notification calling to ensure that each LG is reconstituted on the date of expiration of duration of the existing LG.

This is declared null and void because the provision contradicts Article 24 (5) of the Constitution, which states that the National Assembly and LG should be re-constituted within 90 days after its dissolution. It also contradicts Section 202 of the election Act itself.

The five-year term of the existing LG expired on July 28 this year. This first sitting of the LG was held on July 28, 2011.

While the gewog tshogde must hold it’s first sitting not later than a month after the election, some observers pointed out that only 29 gewogs have done so in the past. This means that rest of the gewog tshogdes have not completed their five-year term, which observers deem unconstitutional.

The LG election has to be conducted as early as possible, the SC directed the ECB through writ on August 5.

Meanwhile, the chief election commissioner could not be contacted yesterday. However, ECB will be holding a press conference today.

Rinzin Wangchuk 

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