The Election Commission (ECB) of Bhutan recently issued a notification about the newly adopted rule of elections conduct. Inter alia, a new rule contains a section on the requirement of five and 10 years’ work experience for the prospective candidates for the National Council and the National Assembly’s election respectively. Though the intent and rationale behind the new rule is laudable, it merits contemplation and analysis on the grounds of legality.

Firstly, ECB claimed to have drawn its authority to frame such rules from Article 23, Section 3(e) of the Constitution. Section 4.3 of the new rule commences as: “Pursuant to the Commission’s authority under the Constitution to set out educational and other qualifications….” and goes on to list the requirements of the prospective candidates for the election which also includes the requirement of work experience for candidates of the Council and Assembly election. The rule or the ECB’s assertion that the Constitution authorises the Commission to set out education and other qualifications warrants a thorough relook at the said section of the Constitution. Section 3(e), Article 23 of the Constitution reads: “Fulfill the necessary educational and other qualifications prescribed in the electoral laws.”

As far as this Section goes, nowhere in the Section can we see any power whatsoever granted to the Commission. The term “electoral laws” can neither be equated nor identified with the ECB. The educational and other qualifications can only be prescribed by the electoral laws and electoral laws can, in principle, only be promulgated by Parliament in line with Article 10(1) of the Constitution. Thus, the ECB’s assertion of having based its rule on the authority conferred to them by the Constitution is unfounded.

In absence of such powers in the Constitution, it is possible that the electoral laws could have given rule-making powers to the Commission. The “electoral laws” envisaged by the Constitution is, among others, the Election Act of the Kingdom of Bhutan 2008, which was formulated by Parliament in 2008. This leads us to the second assertion of the ECB that its new rule on the requirement of experience for the aspiring candidates for the Assembly and Council elections is based on the provisions of the election Act. In particular, they allegedly drew the authority from Section 35(e) of the election Act, which states that the Commission has the responsibility to make rules for carrying out the purposes of the Act without prejudice to the provisions of the Act. Of course, this provision gives them the power to make rules but such powers are not absolute. There are limits to the scope and extent of this power. In law, such powers fall under the power of delegated legislation. Delegated legislation is a process in which the primary legislation confers powers to the executive or the implementing authority to frame secondary instruments to implement and administer the purposes and requirements of the parent Act. Therefore, the scope of such power and legislation is limited to the implementation and administration of the purposes and requirements of the parent legislation. Such rules can neither detract nor add anything that is not intended and authorised by the parent Act. As such, any piece of delegated legislation that goes beyond the scope and authority of the parent legislation becomes ultra vires and such legislation should be declared void.

In the case at hand, ECB’s rule that requires the aspiring candidates to the two Houses of Parliament to have work experience is completely beyond the boundaries of the delegated legislation and the scope of section 35(e) of the election Act. As stated above, the rules made pursuant to delegated legislative power should only be for the purpose of implementing and administering the requirements set out by the primary legislation. On the contrary, the ECB’s new rule is enumerating a completely new set of requirements not intended by the parent Act rather than just setting out procedures and strategies for implementing and administering the requirements already set out by the parent statute. Had the legislators intended the need for such a requirement (the requirement of experience, in this case), they would have enumerated such requirements explicitly in the parent Act, but they did not. Once the Act is passed, if Parliament changes its stand and wants to include new requirements in the Act, it is only within the domain of legislative powers of Parliament to include such requirements by way of an amendment Bill. This is because courts around the world have consistently ruled that the essential legislative functions should be exercised by the legislature and not be delegated to the executive. Thus, ECB’s act of going beyond their delegated authority and taking up primary legislative function meant for Parliament constitutes the usurpation of the legislative power of Parliament.

Going by the wording of section 35(e) of the election Act, it clearly requires the Commission to limit its powers within the ambit of the concept of delegated legislation. It requires them to make rules only for the aim of “carrying out the purposes of the Act” while also requiring them to not make rules that “negates the provisions of the Act”.  Now, the question arises as to whether ECB’s addition of new eligibility criteria for the aspiring candidates falls within the ambit of “carrying out the purposes of the Act”.

In my opinion, it does not fall within the purview of the statutory requirement. For instance, if the rule pertains to how the apolitical nature of the National Council election candidates is to be ascertained or if it pertains to the interpretation of the term “formal university degree”, then it could be within the purview of the phrase “carrying out the purpose of the Act”. But adding a completely new eligibility criterion went beyond the boundaries and scope of the delegated legislation and the phrase “carrying out the purposes of the Act”.  Thus, the new rule on the requirement of experience for the aspiring candidates of the Assembly and Council elections is made in excess of the powers conferred by the parent Act. Therefore, as is the settled general principle of law, since the new rule ultra vires the parent Act, it should be declared void; it can neither create new rights nor affect any individual rights conferred under the pre-existing laws. That is to say that the new rule cannot bar aspiring candidates fulfilling eligibility criteria under pre-existing rules from contesting the upcoming elections subject to it being contested and annulled by the court of law.

The scope of delegated legislation is also well recognised by the Supreme Court of Bhutan. In the first Constitutional case of Bhutan, The Government Bhutan vs. The Opposition Party, the court, in its finding, very explicitly stated: “Powers, however extraordinary, which are conferred or sanctioned by the statute, are never really unlimited, for they are confined to the words of the Act itself…” The court further stated: “Delegated authority must be exercised in strict conformity with the terms of the statute.” In this regard, delegated authorities are bound to exercise their power within the limits of the statutory authority. As and when they cross the boundaries of their power, the affected parties of such rules should challenge such rules and powers in the court of law and annul those rules on the basis of ultra vires doctrine.

Such exploitation of delegated powers by the delegated authorities, if left uncontested and unchecked, will allow the delegated authorities to arbitrarily pass unreasonable and repressive rules while also setting an unhealthy precedent for allowing the delegated authorities to pass rules beyond their scope of statutory power, which ultimately will undermine the rule of law. For instance, if the ECB’s unlimited exercise of rule-making power and its ultra vires rules goes uncontested, the ECB in the future might further tighten and restrict the eligibility criteria for political participation, which sometimes would even undermine democracy and democratic principles. If they can pass essential legal provisions without even having to pass through Parliament, the will of the people supposed to be represented through their representatives in Parliament will be suppressed, as a result of which the very soul of the democracy will be sabotaged.

Contributed by

Yeshi Dorji,

Thimphu

yesodorji@gmail.com