The recently published Model Code of Ethics for Public Servants is not encouraging. Any regulations, laws, or policies we enact must result in the transformation’s desired outcome, the wisest wisdom from the throne. This model code must be bold enough to address the nation’s ground realities. His Majesty repeatedly reminded us, failure is not an option. But if this code is implemented without modifications, it will suppress the growth of public servants and become a stumbling block for creativity, innovation, and fighting corruption.

First, this document curtails the freedom of speech, expression, and thought among all public servants, not just civil servants. This code declares every official discussion or document as secret and confidential. Kuensel rightly opined, “This is quite concerning coming from a constitutional office mandated to promote transparency and accountability.” “We run the risk of this simple rule undoing everything the ACC has accomplished in more than a dozen years of its existence.” The soul of transformation is accountability.  Accountability can’t be achieved without transparency in public institutions and among public servants. Further, a lack of transparency would tremendously affect public confidence in public agencies. While state secrecy has been increasing in recent times, it is not expected from the ACC, an institution established to strengthen transparency.

Second, the code makes anything discovered, innovated, or created through intellectual means the automatic property of the employer. While certain discoveries and innovations made during employment become the property of the employer, this should not be automatic. Such requirements may discourage creativity and innovation among the employees, as there is no incentive for creativity and innovation. In this age of information technology and transformation, creativity and innovation are necessary. It can only come from individual employees by acknowledging them.

Another major drawback of this code is the conflict-of-interest concept. In a small and close-knit society like ours, having some form of relationship through family or association is considered, and most public servants will be unable to perform their duties. The ACC failed to recognize that instead of looking at how closely they are related, it should focus on whether there is an influence in its decision-making process, where undeserving people benefit. For example, in a recent report on the selection of a CEO, though those experts were not related to the candidate, they recommended that the candidate apply, and they were on the panel. Will their decision influence the outcome of selection in favour of the candidate? Since this case has been reported to ACC, the public is waiting to see the outcome of the ACC by interpretation of this code.

The freedom of speech, expression, and opinion, the freedom of the media, the right to information, and the right to intellectual property are all fundamental rights. Thus, there can be only reasonable restrictions on these rights provided by the Constitution, such as sovereignty, integrity, friendly relations with foreign countries, the rights of others, etc. The Chairman of the Constitution Drafting Committee noted that “reasonable restriction” means that restrictions should not be excessive or arbitrary and should be applied sparingly. The agencies must incentivize creativity and innovation not just through promotions and economic rights but also by promoting their intellectual property rights. To curtail the increasing state secrecy, the legislature should enact a whistleblower’s law to protect those who report corruption. Secrecy should not be a norm of governance but an exception and apply in extreme situations. 

Sonam Tshering

Lawyer, Thimphu

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