With both the Speaker Jigme Tshultim and Home Minister Lyonpo Minjur Dorji convicted under criminal charges by the Mongar district court the two candidates may not be allowed to contest in the 2013 race.
This is because both the Constitution and the Election Act debars anyone who has been convicted for any criminal offence and is sentenced.
The Mongar Court Judge in a telephone interview confirmed that both the Speaker and Home Minister had been convicted under criminal charges filed by the Anti Corruption Commission and accordingly sentenced for imprisonment. He added that the Prison term, is a bailable one.
The Home Minister, Minjur Dorji was charged for the offence of official misconduct while the Speaker has been booked for official misconduct, fraud, forgery, and deceptive practices.
The Constitution under Article 23 for Election lays out the clause for disqualification in section 4c which says, “A person shall be disqualified as a candidate or a member holding an elective office under this Constitution, if the person: Is convicted for any criminal offence and sentenced to imprisonment;”
The final decision on disqualification is to be taken by the High Court and Supreme Court based on an election petition filed in line with the Election Act.
Article 23, section 5 says, “Any disqualification under section 4 of this Article shall be adjudicated by the High Court on an election petition filed pursuant to a law made by Parliament under section 7 of this Article.”
Section 7 in short refers to Election laws made by the Parliament like the Election Act of Bhutan that governs the conducting of Elections in Bhutan and also the Election Commission of Bhutan.
The Election Act also lays out a disqualification criteria which may apply in the case of the Speaker and the Home Minister.
Here Section 179 (a) of the Election Act disqualifies candidates who ‘have been convicted for any criminal offence and sentenced to imprisonment.’
However, some minor confusion has propped up due to Section 179 (g) which says, ‘a person shall be disqualified as a candidate or a member holding an elective office under the Constitution, if he/she: has been accused of felony in a pending case and the competent Court has taken cognizance and charges have been framed against him/her.’
The key word here is ‘felony ‘ which means a prison sentence of over three years for which there is no bail. If only this section were applied ignoring the above sections then the Speaker and Home Minister technically could claim that they were not charged for a felony and so can contest the elections.
A legal expert that The Bhutanese talked to said, “The constitution is the Supreme law and there it is clearly laid out that those convicted of criminal charges are disqualified. The key word in the constitution is ‘any’ criminal offence and so since the Speaker and Home Minister have been criminally charged and convicted they will not be allowed to participate.”
A sitting Judge that the paper talked to said that though various provisions were there the interpretation had to be made by the High Court.
Meanwhile PDP member and former Attorney General and Drangpon, Damcho Dorji said, “As per Section 179 of the Election Act, the Speaker and the Home Minister may not be able to contest for an elective office as they have been convicted for a criminal offence.”
He further said, “So until this conviction by the Mongar Dzongkhag Court is overruled or quashed totally without any sentence of imprisonment, they will stand convicted within the meaning of Section 179 of the Election Act not only for the 2013 election but for all elections in future. However, it is in the jurisdiction of the ECB to interpret this Section.”
Currently though charged criminally the Speaker and Home Minister come under the misdemeanor category which is bailable with a minimum sentence of a year and a maximum of less than three years. However, this still means a criminal conviction.
An Election Officer explained that as per the Election Act all candidates as part of their registration process would have to bring in an affidavit from the courts saying that the candidate has not been criminally convicted or does not have an ongoing criminal case.
This affidavit would not be given in cases where people had been convicted for criminal cases. The ECB declined to officially comment on the eligibility of the Speaker and the Home Minister.
In earlier interviews with the paper a senior ECB official had confirmed that the Speaker and Home Minister would not be allowed to contest if they are criminally convicted.
However, in 2009 the High Court set a precedent of disqualifying some Gups from participating in the Gup elections for some misdemeanor charges.
Puran Gurung / Thimphu