Judges get sensitized on handling election disputes

The Bhutan National Legal Institute (BNLI) conducted a two–day workshop on Election Dispute Settlement System (EDSS) for judges across the country.  It comes at a time when the country is gearing up for the third parliamentary Elections that will take place this year.

Since electoral cases cannot be treated the same way as other matters due to their inherent political sensitivity and high public interest, it was important for the Judges and judicial officers to be aware of electoral jurisprudence, international standards and principles of elections, Election Dispute Resolution Mechanism, and to learn from past experiences.

The workshop for Justices of the Supreme Court, High Court, 20 dzongkhags, 15 dungkhag Courts and the Registrars on EDSS aimed at deepening knowledge on election-related laws and on the uniform management and disposal of complaints and disputes before, during and after the elections.  It is expected to help judges adjudicate election contests in a most expeditious, effective and impartial manner.

Participants raised a number of questions on electoral issues during the workshop.

On the question of how the ECB ensures that familiarisation visits do not result in undue influence for personal political gain election, Commissioner Deki Pema said candidates are prohibited to conduct political campaigns that directly or indirectly influence voters and the Local Governments (LG) are required to keep track of the candidate and their activities during the familiarisation tour.

Candidates are also prohibited from making any material exchange and must abide by the Election Code of Conduct. The ECB also educates the general public on the financial power domains of the candidate.

On implications of familiarisation visits without obtaining authorisation, the ECB commissioner said that candidates are required to file a detailed schedule of their visits with the information sent to the dzongkhags and the local government.

On ensuring that a person assisting disabled voters do not excercise undue influence, she said that the same person does not assist more than one disabled voter and the person assisting such voter is required to fill up a form affixing his/her signatures or thumb print. The form also ensures that the assisting person maintains the secrecy of the vote casted by disabled voter.

On whether people can appeal an election dispute during the election period or if there are compensatory provisions for the candidates if found innocent after their disqualification, Sonam Dorji of ECB said that there are only two options: nullify the election or hold the election again.

He also said that disputes arising at the gewog level involving local governments are sent to the local government for settlement. If the election disputes involves any dzongkhag officials, the disputes are forwarded to the dzongkhag.

“The ECB also initiates a suo motu action if the ECB finds any issues during the election that may result in unfair election or undue advantage to any candidate,” he said.

He also said that if corrupt candidates are elected such issues can be investigated at any time of their tenure. ECB pointed out that they will apply the Penal Provision of failure to report crime to prevent such instances in the future.

Meanwhile, the participants commented that the Rule of Law was a misnomer because every individual or entity or nation defines the concept based on their perceptions and understanding, which leads to different definitions.

On explaining the rule of law in the Bhutanese context Drangpon (Dr) Jangchuk Norbu said that some people confuse between the concepts of ‘Rule of Law’and the ‘due process of the law’. However, he said that, the common understanding of ‘Rule of Law’ is that  “nobody is above the law, as against the arbitrary rules made by man”.

“It was agreed that the definition of rule of law commanded by His Majesty the King must be upheld and promoted in our system. His Majesty said rule of law encompasses three elements; fair administration of justice, non-arbitrary exercise of power by those in authority and absolute regard and compliance of the laws by the people,” the drangpon said.

Based on a comparative analysis of EDSS and judicial process, Pema Needup presented a few concerns and issues, which the ECB responded to.

He said that since election dispute has to be resolved within   one-month of filing, the concern was whether the judiciary should follow the procedure set under the Electoral Laws or as provided in the Civil and Criminal Procedure Code.

He also asked whether election disputes should be awarded in a form of Judgment or Order.

He suggested if election disputes can be fast-tracked following the normal procedure of the code since the Electoral laws and the Civil and Criminal Procedure Code were passed a decade ago and the trend of different Ministries and Agencies focuses on the subordinate laws to fulfill their mandates.

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