Concerning the Use of Tsamdro

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After I joined the Bhutan National Legal Institute (BNLI), I made a series of travels within Bhutan, carrying law with me, with every intention to make people aware of the basic legal rights and obligations.

On the 3rd of September, 2013, I led a group of officials to Merak and Sakeng – a place of distinct tourist attraction – for rural legal dissemination programme. From the remarkable pass of Dochu-La, we crossed several peaks and mountains to reach Tashigang. Our first destination was Merak Gewog and decided to travel early morning owing to its remoteness. We hired a Bolero taxi because Merak was half-way connected by farm road. The farm road was torn in deep ruts by the summer rains, taxi was jerking, and after an hour drive, the driver parked his taxi in Phogmey for a quick breakfast at his home. After two hours of journey, we had to push the taxi as its wheels wedged into the mud, we pushed and pushed but failed. Fortunately, there was an excavator who helped us pull the taxi, and we continued our journey.

I was receiving orientation from the taxi driver. We talked on topics of diverse issues – stretching from politics to religion to agriculture and farming in their community – which gave me so much of insights about the life and culture of nomads. I also had a chance to ask him if there is any particular legal issue that concern the people of Merak and Sakteng. “Of course yes”, said he, “there are many legal issues, and the most common problem that the highlanders face is with regard to the use of Tsamdro”. With enthusiasm to know the background of the cause, I asked him to narrate the entire story. After I listened to him, and listening to other people of Merak and Sakteng during legal dissemination programme, I couldn’t stop writing this piece of my understanding.

Merak and Sakteng, situated at an altitude of 3500 meters and 2800 meters respectively, have been home to the Brokpas for centuries since their displacement from Tsona in southern Tibet. The nomadic indigenous group of eastern Bhutan, the Brokpas, seasonally move their herds of livestock from the lower valleys in the winter to the higher pastures in the summer. Their main source of living is hugely dependent on the yaks and associated domestic animals. Tsamdro is essential fodder for the Brokpas to feed their yaks and animals, and they make their living out of Tsamdro.

Until 2007, based on Chapter 8 of the Land Act of 1999, the Tsamdro was considered like any other categories of land where the ownership of the same was provided to the person who has duly registered and possess the ownership certificate called Thram. The law therefore provided the owner a complete set of legal rights to use the Tsamdro. However, the law did not provide ownership of the land therefore restricting to claim the ownership of trees and any other resources found thereon [Section KA-8.5 of the Land Act of 1999].

However, Chapter 10 of the Land Act of Bhutan, 2007 has a complete different set of provisions. Section 235 of the Act provides that “All Tsamdro rights maintained in the Thram prior to enactment of this Act shall be deleted from the Thram. Upon deletion, the Tsamdro land shall be reverted and maintained as the Government land in Thromde or the Government Reserved Forests land in rural areas.” The reverted Tsamdro in rural areas shall be converted to leasehold and those in Thromde shall be maintained as the Government land [Section 236 of the Act].

Referring to the above stated provisions of the new law, the taxi driver was narrating a stories of how the people of Merak and Sakteng, a peaceful community once upon a time, are into conflict today. I did not understand the significant of Tsamdro until I listen him. After the enactment of the Land Act in 2007, those people who did not have ownership over Tsamdro started sending their yaks and domestic animals freely without care, trespassing over others pastures. When asked not to trespass, the most annoying answer would be “it’s no more your Tsamdro now, but a government pastures”. The disputes over grazing rights was so serious that the animals were beaten up mercilessly, even cut-off and mutilated. Such was the situation.

When disputes are referred to Gewog Administration, Gup has no authority to settle the disputes concerning Tsamdro, and similarly, the Courts has no jurisdiction to hear the cases relating to Tsamdro. There was no organization to settle the conflict.

Upon hearing this story from the taxi driver, it gave me a serious task, a task to face the people of Merak and Sakteng with this challenging legal questions and arguments. Meantime, I was also keeping constant touch with the Mangmi of Merak Gewog through telephone over the hiring of horses to carry our baggage, because farm roads was soon going to end. After three hours of travel, the farm road has come to an end, and we have to walk for three or more hours long.

Toward evening (at around 5PM), we arrived at Merak. Merak Mangmi was waiting for us in the Royal Guest House with a flask of tea. His hospitality was never to be forgotten. He prepared the appetizing supper because we were very tired of walking over the mountains in the midst of a summer rain.

Early in the morning, I saw so many people – men and women, boys and girls with their traditional costumes spun from yak hair – rushing with so much of expectation towards meeting hall. Men were wearing a black hat with long fringes hanging from the sides, and upper part of their body was covered by a thick jacket with a vest of animal hide tied at the waist by a long belt known as Kera. Lower part of the body, they were wearing a knee length pair of shorts called kongo. Women were really beautiful with their long hair tied up in plaits with colorful ribbons; woven out of raw silk, and designed with colorful motifs of animals and flowers. Women were fond of jewellery, and they were wearing a long strands of corals, cat’s eyes and necklaces of semi-precious stones.

Overwhelmed by the beauty of traditional costumes and large turnout for the programme, we started with the legal dissemination exactly at 9AM. We introduced ourselves, introduced the Bhutan National Legal Institute and its mandate, stated our objectives of the programme, described on the beautiful people and places, and then with a soft tone, I uttered the following lines:

We are here today not to solve the problems, but to tell you what the law says. Today, so many laws are enacted by the Parliament, and we simply cannot plead for ignorance of the law. It is our duty to know what the law says.

With the above few lines, we started our programme. The modus of the dissemination was not simply monotonous lecture or monologue, but a two ways traffic. Upon the discussion of the Marriage Act of 1980, I also learned that marriage among Brokpa couples is a convergence of practical consideration and sacred responsibility, with elaborate rituals to seal the union. Polygamy is a prevailing practice – where women generally wed with two men – largely because of the hardship nomadic life of the Brokpa community.

Then we talked on the law of inheritance, civil and criminal procedure code, penal code, tobacco act, moveable and immoveable property act, and several other legislations and that concern their life including the domestic violence act and child care and protection act. However, anticipating numerous questions regarding the issue of Tsamdro, I deliberately kept the Land Act of 2007 to be discussed at the end.

As I start the Land Act, people were too attentive, focused, and listening to each and every word that I utter. After I finished, not single audience left without asking about the right to use Tsamdro. They not only asked legal questions but also made a political request – a request to reinstate the right to use Tsamdro. They share numerous problems faced in the community, how the deletion of Thram has resulted into community chaos, how the united people of Merak are divided, and so and so forth. I got nothing to say, but to listen their grievances patiently.

According to them, the deletion of Tsamdro from the Thram has resulted into the reduction of total number of yaks by 60%. Unlike before, Merak people do not have much yaks because they have no pasture land. They also said that the government always insist the protection and conservation of customary practice and traditional costumes of Brokpas, however, on the other hand, the numbers of yaks are declining. Their costumes are made of yaks and sheep, and decrease in the animals will have tremendous impact of sustainability of their traditional costumes.

As I get numerous questions I have had nothing to say and no answer would convince them really. I took a long breath and decided to explain what the letter of the law say. I had basically referred to the following provisions of the Land Act of 2007:

$. 239. After 10 years from the date of enactment of this Act, Tsamdro shall be leased only to a lessee who is a resident of the Dzongkhag where the Tsamdro is situated.

$. 240. An individual household or community owning livestock shall be eligible to lease the reverted Tsamdro which have been converted to Government Reserved Forests land for use as Tsamdro.

$. 241. While leasing Tsamdro, preference shall be given to the previous rights holders and community.

$. 242. Except as provided in Section 243 of this Act, Tsamdro shall be leased based on herd size.

$. 243. Highlanders who are directly dependent on Tsamdro may retain their Tsamdro rights underlease irrespective of possession of livestock and their herd size.

$. 245. With the exception of the Tsamdro leased to Highlanders, there shall be no sub-leasing of Tsamdro

Reading above plain letter of the provisions, I made the following points:

  • The provisions regarding the use of Tsamdro as enshrined in Chapter Ten of the Land Act of 2007 is not implemented as of today. This Act is to be implemented only after ten years from enactment because the provision says that the “Tsamdro shall be leased only after the ten years from the date of enactment of this Act.” The main purpose of this ten years period is for the government to study if there is any problem in the implementation of the Act. The current conflict with the Brokpa community is because of their ignorant of the law. They assumed that the Act is implemented from the date of its enactment. To authenticate, I also put a counter question to them: “did government delete the Tsamdro Thram”? And the most obvious answer was NO. Thus, their misunderstanding was mainly because of the oblivious of the law. Therefore, I seriously thought how important the role of legal dissemination is for the people living in the remote Bhutan.
  • Even if the Act is put into practice, for example, I don’t think there should be any problem. Earlier Land Act of 1999 and current Land Act of 2007 stands on the similar footing. Both the Acts did not recognize the Tsamdro Land as private land thereby exempting the payment of land tax. Land owner has only right over the Tsamdro and nothing more.
  • The difference between the 1999 Act and the 2007 Act is with regard to the deletion of Thram, and government can lease the Tsamdro (not land) to the private individual. However, while leasing Tsamdro, preference shall be given to the previous rights holders and community. Although the Tsamdro shall be leased based on the size of herds, however, highlanders who are directly dependent on Tsamdro (like Brokpas) may retain their Tsamdro rights under lease irrespective of possession of livestock and their herd size. Moreover, Highlanders shall have right to sublease the Tsamdro. Therefore, there is no much of difference between the two Acts.

After they listen to the above points, everyone remained silent, not a word was spoken. We assumed that they were satisfied with my explanation. They also remarked that such programme is very important because conflict arise because of ignorant of the law.

Whatever said and done, eventually they want the law to be changed because they don’t want to pay the lease amount. In this context, I suggest if the Tsamdro rights can be reinstated but with a payment of Tsamdro Tax (not land tax). There should be also a provision that clearly states that “not all will get the right to Tsamdro but only the Highlanders” because there are instances where even the civil servants possess the Tsamdro and were leased to the Highlanders. And within the highlanders, the Tsamdro needs to be distributed based on the numbers of animals, and there need to have periodic review.

The dissemination programme concluded at around 4:15PM and I was glad to see people happy with our efforts to make them understand the basic principles of law. At the end of the programme, we encouraged them to sing, dance, and share jokes and humors. Women are particularly well known for their singing and they love to perform from their wide range of repertoire of festive songs dedicated to gods and goddesses, as well as the universal themes of nature, youth and old age. Men sung the folk songs of nomads, shared jokes, anecdotes, and stories. It was a fun, and a day to be remembered throughout my life.

Towards evening, we have shown a Legal TV Series – “Zhi-dhy Tsawa” which was produced under the genesis of Bhutan National Legal Institute as a part of legal dissemination programme. The series was welcomed and applauded by the public.

Next morning, we started our journey towards Sakteng. The experience was almost same, and they shared the same problem of Tsamdro, and therefore, it will be tedious to write more about my experience in Sakteng. However, through such programme, I understood how important the legal dissemination programme is for the remote people. We are optimistic to continue this programme in the future.

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