Law: The Supreme Court (SC) on August 5 issued a writ that would have a far-reaching impact on Bhutanese democracy. However, some of the decisions of the SC are “contentious” and could even be unconstitutional.
The SC ordered the Election Commission of Bhutan (ECB) to defer elections in the 16 new dzongkhag thromdes.
One of the reasons cited by the SC was that a dzongkhag thromde should have a minimum of seven elected members, excluding the thrompon. If the thrompon is not counted, all the dzongkhag thromdes except Thimphu would have only six members as they have only six constituencies.
Article 22, section 10, of the Constitution states: “A gewog tshogde or a thromde tshogde will not have more than 10 and fewer than seven elected members.” The Constitution states that a thromde should be headed by a thrompon, who is directly “elected” by the voters of the thromde.
As per the SC’s interpretation, the thrompon is not a member of the dzongkhag tshogdu (DT). This, the SC stated, was because thrompons’ roles are defined by Parliament.
As per the LG Act, a thrompon is the chairperson of the thromde tshogde, which shall also appoint a deputy chairperson.
“So, thrompons cannot serve as the DT member,“ said a judiciary official.
The Supreme Court’s writ also states that the deputy chairperson could participate as an ex-officio member of the DT.
The perks, remuneration and criteria of thrompons are different than the DT chairpersons, thus mandating a clear segregation of roles.
However, if this is the SC’s interpretation on the constitution of thromde tshogde to be implemented, thrompons do not fall under the category of elected LG members. Some say this itself would contradict the Constitution, as a thromde tshogde is a structure of the local government system.
Thrompons, like any other elected LG members, are governed by the LG Act in line with the Constitution. They receive entitlements as per the LG Members’ Entitlement Act.
Chairman of the National Council’s legislative committee, Sangay Khandu, said thrompons are members of the thromde tshogde. “But we have no authority to pass a judgment on the Supreme Court decision,” he said.
If the issue merits review, Sangay Khandu said that the writ should be accepted first. “We will have different views, but the final decision lies with the Supreme Court,” he said.
Another lawmaker, who did not want to be named, said he differs with the SC on the issue. He said questions on whether gups and mangmis should be counted as members of the gewog tshogde would arise if thrompons are not considered as thromde tshogde members.
Drawing similarities between a thromde tshogde and a gewog tshogde, he said gups and mangmis are also directly elected by the people just like thrompons. And gups and mangmis are gewog tshogde members.
Just like a thromde tshogde is headed by a thrompon, a gewog tshogde is headed by a gup. “But we will respect the Supreme Court’s decision,” he said.
He added that it is not necessary to have seven constituencies in a dzongkhag thromde as the thrompon is also an elected member. With six constituencies, he said the constitutional requirement with respect to the number of elected member in a thromde tshogde will be fulfilled.
Article 22, section 9, of the Constitution states: “A dzongkhag thromde shall be divided into constituencies for the election of the members of the thromde tshogde.”
If the SC writ is anything to go by, the three dzongkhag thromdes of Phuentsholing, Gelephu and Samdrupjongkhar would be “unconstitutional”. These thromdes have six constituencies only.
If the SC order is implemented, all dzongkhag thromde constituencies except for Thimphu thromde, will have to be redrawn to add one more constituency to each of the thromdes.
The SC stated that all the dzongkhag thromdes are “unconstitutional” except for Thimphu as they have only six constituencies.
Chief Election Commissioner Chogyal D Rigdzin said the writ was “very much in line with the rule of law” but that ECB had not violated the laws by conducting elections in thromdes where there are less than seven constituencies. “It’s not in violation of the laws to conduct elections in thromde tshogde irrespective of the number of constituencies,” he said.
He said elections in Samdrupjongkhar thromde tshogde will be held along with the gewog elections next month. But the post of thromde thuemi, which the writ revoked, will not be held.
Section 12 of the LG Act 2009 also states that a thromde tshogde shall consist of a minimum of seven and maximum of 10 elected members, including the thrompon. The SC writ pronounced this section of the LG Act to be contradicting the Constitution, and anything in contravention to the Constitution will be null and void.
The SC has stated that a high-level commission comprising experts in the related field should be constituted. The commission will review and harmonise the conflicting provisions of the electoral laws.
The chief election commissioner said the ECB recognises the need to constitute the commission. “Supreme Court is the custodian and ultimate interpreter of the Constitution,” he said.