Is the Drayang ban an infringement of the Constitution

With the 7th January 2022 Executive Order of the Prime minister banning Drayangs, a new question is if this ban violates Constitutional Rights and laws and its future impact.

The paper talked to former Judges and practicing lawyers to get their view on the issue.

A lawyer the paper talked to said the order is a violation of the Constitution as it violates the Fundamental Right under Article 7(10) which says, ‘A Bhutanese citizen shall have the right to practice any lawful trade, profession or vocation.”

The lawyer said, “Where is the evidence to prove that girls working in Drayangs are vulnerable.”

He also asked what the government is giving them as their substitute for the loss of this livelihood. While the government has promised trainings, licenses and loans for the girls these are also open for all Bhutanese citizens, and so it does not qualify as the government providing an alternate livelihood.

This is especially relevant as in the case of most drayang girls this is the only thing they can do after being unable to get other jobs due to their qualifications or the lack of it.

The lawyer said the order is also an infringement of the principles of state police under Article 9(11) which says ‘The state shall endeavor to promote those circumstances that would enable the citizens to secure an adequate livelihood.”

He said it also violates Article 9(22) which says, “The state shall endeavor to provide security in the event of sickness and disability or lack of adequate means of livelihood for reasons beyond one’s control.”

“At this moment of pandemic where will these people gain employment and support themselves and their families,” asked the lawyer.

He said that much before the executive order all of the above should have been put in place for a smooth transition of the continuance of the livelihood of these people.

The lawyer also asked how can the government conclude those working in Drayangs or that the Drayang itself is immoral to invite such an executive order.

The government talks of the business comprising norms and values.

However, a research paper from Bhutan titled ‘HIV Vulnerability and Sexual Risk Behavior of the Drayang Girls in Bhutan,’ published in the ‘SAARC Journal of Tuberculosis, Lung Diseases and HIV Aids’ in 2019 shows low transactional sex and low HIV rates among Drayang women going against the popular discourse of a thriving sex-industry linked to Drayangs.

Also a 2020 research paper titled ‘Drayang: Through the Lens of Socio-Economic Landscape of Urban Culture in Bhutan’ published in the international journal called ‘The Journal of Research on the Lepidoptera’ on 28th February 2020 did a survey of Drayang female employees and found that most are happy with their work and work environment.

Both the above papers which also cite earlier papers and research on the issue go against the popular perception and also popular media portrayal of Drayangs as semi-brothels.

In fact, a 2017 NCWC study on Drayangs which is one of the main documents being used by the government to justify its ban widely cites such media reports. However, even this NCWC document does not ask for a ban on Drayangs, but only asks for their reform.

The executive order says, “It is also time we acknowledge that our women working in Drayangs are most vulnerable. The are sexually objectified, subjected to stereotypes and disparaged in communities due to the nature of their job.”

Here the President of the Druk Drayang Association Kelzang Phuntsho said, “How is it the fault of the women if they are being objectified and stereotyped by others. This is not the problem of the girls but of the people who think about Drayang girls in that way.”

A second lawyer the paper talked to said that the executive order makes certain claims, but it is all based on hearsay and in court hearsay will not work, but evidence is required. He said there should be evidence to prove the case beyond a reasonable doubt.

He said that if the government is raising moral issues then the government can also be questioned on why the same moral values did not apply to karaokes, discos and pubs where all kinds of things also happen.

He also questioned the government’s compensation package saying that the government should not be using tax payer’s money to fund the closing of Drayangs as this also makes the public a victim of the action.

The lawyer said that an action like this should have gone through Parliament and it should not have come as an executive order. He said even in Parliament the government should present the evidences to back up its statements and justify them to the MPs and the people.

The second lawyer also raised the issue of Drayangs being licensed and tax-paying entities. 

 Before 2006 when BICMA was established there were Drayangs in operation operating under the Bar and Audio Visual License by the Ministry of Economic Affairs.

BICMA then started licensing them and even drew up license conditions for them. Drayangs were also tax paying entities.

A former Judge also weighed in on the issue saying the main issue at hand would be Article 7(10) of the Constitution. He said that the government has to prove compelling circumstances in the court on the Drayang ban, like in the case of lifting the tobacco ban where it was felt that tobacco smuggling would bring in COVID-19.

The Justice said that the government should also be making only reasonable restrictions in such a ban and the court will see if this restriction is reasonable enough or not.

Another former Judge gave a more complicated picture. He said that the government’s advantage here is that there is no Act or Parliamentary decision to allow Drayangs, and since it was probably started through an executive decision it is being withdrawn via an executive decision.

The former judge said that if the Drayangs file a Constitutional case it will have to be in the High Court. He said that in court evidences will have to be presented.

The former judge said that a problem here is also the increasing propensity to take legal decisions via executive action. He said that allowing the sale of tobacco before amending the Act is an example and also the Prime Minister not delivering the State of the Nation Address which is mandated by the Constitution.

He said that such things have to be done in black and white and as per the laws.

The Drayang Association President, Kelzang Phuntsho, said they will still try and negotiate with the government and if things do not work out then the only option left is to go to court.

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