I’m glad that I could write this second issue on time. In this issue, you will see some of the very interesting legal developments in Bhutan; both Parliament and Judiciary once again into the limelight.
On 9 December, His Majesty The King graced the Closing Ceremony of the 18th Session of the Second Parliament. The National Council has described the Session as Successful, and I believe the National Assembly’s session was successful as well.
Of BBIN Again?
After the NC’s non-ratification of the so called ‘(in)famous BBIN Agreement,’ it was once again an agenda for public debate. The government has insisted that the BBIN is for Economic Cooperation and would implement even if Parliament does not ratify it. Implementing the “non-ratified Agreement” would not only undermine the NC’s position but also fundamentally infringe the Treaty Clause of the Constitution. Article 10(25) of the Constitution provides for “non-self executory clause” and ratification is prerequisite to implement any treaties. But meanwhile, the NA has decided to submit the BBIN agreement to The His Majesty for Royal Command to be deliberated in the joint sitting (Kuensel).
Some Other Discussions in the Parliament
The NC’s good governance committee has called for special Procurement Act in Bhutan. Bhutan has Procurement Manual of 2009 which the Upper House might have seen some loopholes and irregularities therein. Of course, I remember former Anti Corruption Commissioner saying “Procurement System” is the biggest flaws in the country that eats up huge public money.
The Upper House also discussed their concerns with regard to some of the new cultural practices pointing out that there lack legal support in numerous issues. While I am not sure what legal support they are referring to, but as pointed out by the NC, it would be interesting to see if women playing Khuru and performing mask dances for commercial purposes are in compatible with the age old tradition and good cultural practices of Bhutan (Kuensel). But let’s not forget that we obviously have other significant business to do rather than placing culture and tradition as an excuse for not moving forward.
In the joint sitting, we observed discourse on separation of power. It is undisputed democratic principle that parliament legislate the law, executive implement the law, and judiciary interpret the law. There was a discussion as to whether parliament can request the judiciary and other branches of the government to expedite the audited cases if prolonged by the judiciary (and ACC and the OAG). This is a good discourse for us to reflect upon.
Some Judicial Developments
– Over the last couple of months, the Facebook defamation case has gained much momentum than ever expected. It has been covered by both national and most-read international papers. While the merit of the case is yet to be decided by the court, the parties expressed confusion as hearing completed on December 12, 2016. It happens when the either sides have got nothing to submit to substantiate or prove their own arguments. If both sides to the case have failed to prove their stand (as what have been reported thus far), I anticipate public asking this question: what would be the final outcome of the case? This would interest me more!
– In an another case concerning the physical abuse of ‘on-duty forester,’ the High Court has partially reversed the Paro Court’s ruling. According to the source, the forester was hit by the truck driver while he was on his official duty. The High Court convicted the accused for battery; which the foresters across the country says was “not really motivating.” I am not sure if motivation would come from maximum punishment, but Bhutan really need to have separate provisions for the crime against the uniform personnel (Kuensel). In absence of specific provision for “crime against the uniform personnel” or separate laws, the convict was charged for battery under the Penal Code of Bhutan.
– Meanwhile, else where in Australia, the man who has invaded the privacy of women was summoned in the court on December 20, 2016. More than unfortunate, it’s a big shame on us.
Women at Legal Forefront?
a) Of Murder
It has become a source of disturbance for Bhutanese society. More than youth into drugs business, killing within a family is seems to be growing. Does that has something to do with advocating gender equality and women empowerment? Gender equality and women empowerment does not mean we provide absolute right to kill their soul mate, but a right to respect every individual as equal human. [However, four men also have been sentenced for voluntary manslaughter (BBS)].
b) Of Abandonment of Newborn Infant
Another disturbing issue in Bhutan is abandonment of newborn infant. I don’t know where does our society goes wrong, but this certainly is. Be it from the social or religious perspectives or from the scientific point of view, this is not a right thing to opt for. I want to request every women around the country that do not do this, there is option for those not ready to parent a child — an adoption, choose this option. Go, give your child for adoption if you are not ready to parent your child.
c) Of Gender Gap
Without questioning the factual truth of the report, I pose this question: is there gender gap in Bhutan? As far as my experience as a Bhutanese is concern, women are given equal opportunities, education is provided irrespective of gender, and legal instruments and institutions are conducive enough for our girls to stand as a proud citizen in Bhutan. Bhutanese women today even take the socio-cultural and recreational activities forefront which was since time immemorial a “men driven game,” – Khuru for example.
To give some more examples, Bhutan does not have menstruation hut like in Nepal, we don’t have stoning to death for adultery like in Islamic Countries, we don’t have dowry system like in India, our women can drive unlike Saudi Arabia, we don’t have female infanticides, we don’t have honor killing, we don’t have commercial sex workers, LGBT rights are much taken care of, Bhutanese women can easily divorce their spouse like men, Bhutanese men do not look down women, and the list goes on. If at all gender disparity could be reduced by equal numbers of representation, then the above report would be suggestive of “women reservation” in Bhutan. I think equal numbers alone cannot be the sole criterion. Giving equal numbers through reservation or other means of practices would certainly discriminate the “abled” men from participation. Of course, I acknowledge the fact that we need to empower women, but that does not mean Bhutan is too sexist country. I’m sorry, I somehow failed to appreciate the report.
When I say this, I am reminded that I am a father of two beautiful girls, married to a loving wife, born with four caring sisters, and a beautiful loving mother. But this will not change my stand because I am not sexist. I do not look women from “bias window” rather look at them from my “caring eyes.” That situation and believe has driven my argument thus provided above.
History is made – Congratulations Lawyer Yonten!
On 22 December 2016, a landmark judgment has been handed down by the Hon’ble Supreme Court of Bhutan. Every lawyers should remember this as a “historic day” – for history has been made!
In the case concerning inheritance and motion for recusal in Lhadem Pem Dorji v Tobgay Dorji, Wangchuck Dorji and Savitri Dorji, the Supreme Court has handed down the judgment not only affirming the decision of the trial court but also sending lawyer Yonten for one month imprisonment for contempt of court. The Court also made him ineligible to practice for a complete one year. In a general note, the judgment stated that “the lawyer should have at least ten years of experience to practice in the Supreme Court.” (See Kuensel)
I have read the entire judgment; thanks to internet and the judiciary for making it accessible online. It was a nice read, but Dzong-lish and Choed-key will become more complicated for the public to read, but I would recommend all lawyers to read it and explain to those who might ask you as a lawyer.
While there might be a possible question of constitutional right to livelihood of Lawyer Yonten and those who cannot practice in the Supreme Court because of “ten years” exclusion, the positive side is that the Judiciary has finally found the missing “judicial activism” thereby crossing the conservative approach of judicial ruling. Yet, however, we cannot forget Lawyer Yonten too easily in the history of Bhutan, who is also a very good friend of mine, for making a history and for establishing name within a short period of his practicing career. Nation will remember his name, judiciary will remember his contribution, and legal mind will look at him as a lawyer who fought with brave and courages. I perceive that such ruling have been never possible without his recusal petition in the Supreme Court.
Special Benches Established
On the other note, the Judiciary has Established Specialised Courts in Thimphu District Courts.
If you go to the court of law hereafter in Thimphu, you will know got to see special benches for a particular cases. For instance, if you are filing a monetary case, you will be sent to commercial bench; if you are filing a divorce application, you will be sent to the family bench. This development has come as a good initiative from the judiciary. Yet, another important initiative for the judiciary would be to specialize the judicial personnel working in the specialized courts. Specialized Courts without specialized working personnel would be same as chewing doma without strong teeth. Professional development is important to stimulate the justice delivery process.
Of Electoral Laws
The resignation of Dangchu Gup (to go abroad) was shocking. I am saddened by the news, really!
Australia has become a place of earning for many Bhutanese. Who else does not wish to go to Australia? We talk of Tha-Damtshig and Lay-Jumdre too easily. But do we really posses that? Do we have integrity? That is something I keep asking myself.
During the time of election campaign, the candidate pledge thousands, beg votes, and vow The King, Country and the People that “s/he will work tirelessly, with dedication and diligence,” and after elected, they take “a solemn oath” appealing to a local deity, to The King, Country and the People, to work with truth and loyalty, and to keep the promises. But eventual resignation is not what people anticipate.
We have few instances of politicians’ resignation. It is time we amend the electoral laws. It is time we incorporate the provisions that mandate the resigned candidate to refund the entire cost of election incurred unto them (as we civil servants do). It is time that we show our real dedication and patriotism. It is time we keep our promises and pledges. It is time we do not deceit our innocent voters. It is time we work for The King, Country and the People in real sense. Above all, it is time that we question our integrity. Election Commission has some works to do here.
A yet to Crawl Freedom of Speech and Expression
Human beings are physically relatively weak. We lack fangs and claws, but we succeeded in surviving in an initially hostile environment because of human’s superior intelligence and aggressiveness. We try to express our intelligence through speech, press, art, and/or telecommunication. But are we free to showcase our intelligence?
HEMA HEMA – Sing Me a Song While I Wait is a most awaited film to be screened in Bhutan. It has received tremendous applause in the international film festivals because of its intelligent approach. The BICMA however has exercised their power to be the chieftain of obstacle to screen the film. Censorship would deprive citizen’s fundamental right to information and expression. I am not aware what cultural values are incompatible with the film, but I am optimistic that the Department of Culture will endorse the film to be premiered in Bhutan (BBS.)
As obvious it is, free and open society shows dynamism. World has demonstrated the importance of civic action and public debate in nation’s development. Although we might be highly sensitive to criticism, it will make sense to allow some pubic debate. That will help us understand our own constraints and weaknesses. After all, we cannot afford to remain ‘landlocked-knowledge’ because country is landlocked.
Over a period of one month, there has been several legal developments taking place in the country. However, I managed to write only those important developments. Otherwise, it will go on and on for pages after pages. My apologies for not covering the entire stories, but I’m confident that this small piece help in a small way.