Last Updated: Wednesday, 26 November 2014, 15:45 GMT

Countries at the Crossroads 2007 - Bhutan

Publisher Freedom House
Publication Date 25 September 2007
Cite as Freedom House, Countries at the Crossroads 2007 - Bhutan, 25 September 2007, available at: http://www.refworld.org/docid/47386920c.html [accessed 27 November 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Between November 2004 and March 2007, Bhutan underwent major, peaceful political changes. On December 14, 2006, King Jigme Singye Wangchuck summoned the Cabinet of Ministers and, before a stunned assembly, informed them that he was abdicating the throne in favor of his eldest son, the Trongsa Penlop, Jigme Khesar Namgyal Wangchuck, who became the fifth king of the Wangchuck dynasty.1

Although the king had earlier indicated that he would abdicate before the centennial celebration of the monarchy's establishment in 1907, the announcement was greeted with widespread disbelief and sadness. The fourth king had provided the main impetus for political reform in Bhutan, and under his guidance the country has shown potential to eventually transition to democracy. The role of the monarchy has been transformed since direct royal rule ended and an elected cabinet of ministers took over responsibility for government in 1998. The changes initiated starting that year have been consolidated over the last few years and made possible a smooth transition to the new king, who will preside over the inauguration of the first written constitution of Bhutan in 2008.

On March 26, 2005, the draft constitution was publicly launched after a three-year period of drafting and revision. The drafting committee submitted an original draft to the former king in October 2002; it was thereafter refined in a process of consultation with the cabinet of ministers and external advisers. Since its public launch, which included a dedicated website with both English and Dzongkha versions available, a second draft was issued in August 2005 incorporating amendments based on the initial reactions of the Bhutanese public. In addition, the draft constitution has been formally presented by members of the royal family and the cabinet at meetings held throughout Bhutan. At the time of writing, a final version is being prepared for formal presentation to the National Assembly. The adoption of the draft constitution will pave the way for the first democratic parliamentary elections in 2008.

Since 2005, the government has focused on establishing the necessary framework for the new institutions outlined in the draft constitution. Legislation addressing central issues is being drafted and gradually presented to the National Assembly. In January 2007, a Judiciary Service Act was passed that, for the first time, clearly establishes the separation of the judiciary from the executive. The Anticorruption Commission has been actively developing its role in Bhutan, and an Election Commission was established in 2005.

In February 2007, the government announced that the terms of the 1949 Indo-Bhutan Treaty had been officially revised and a new Friendship Treaty signed between India and Bhutan. Under Article 2 of the 1949 treaty, Bhutan had been "guided by the advice of the Government of India in regard to its external relations." This requirement has now been removed. The renegotiation of the 1949 treaty reflects both the commitment of the Bhutanese authorities to establishing a stable constitutional democracy in Bhutan and the 1998 bilateral agreement reached between China and Bhutan regarding the border between Bhutan and Tibet.2 It marks a maturing of relations between India and Bhutan, and a recognition of the major political transformation taking place in Bhutan.

While respect for human rights in Bhutan does appear to have improved, the Lhotshampa refugee problem remains unresolved. The issue arose in the mid-1980s, when changes to the Citizenship Act made it difficult for Bhutanese of Nepalese descent to acquire Bhutanese citizenship. Tensions between the government and the Lhotshampa community escalated when violent protests broke out in 1990 and 1991. Following harsh repression of the protests a significant number of Lhotshampas fled Bhutan and now reside in a series of refugee camps in eastern Nepal. The Joint Verification Process, established between the Bhutanese and Nepalese authorities, was interrupted by attacks on Bhutanese officials at the Khudunbari camp in December 2003 but has since resumed at the ministerial level. A group of NGOs, including Amnesty International and Human Rights Watch, issued a letter addressed to the delegates attending the ninth Bhutan Donors roundtable talks in Geneva in February 2006. They expressed concern that Bhutan's nationwide census undertaken in 2005 "may be categorising a significant number of Lhotshampas still living in Bhutan as non-nationals."3 In 2006 the United States and Canada proposed accepting over half of the 108,000 Lhotshampa refugees living in camps in southeastern Nepal. It remains unclear how the plan will be implemented and what impact it will have on the politically organized refugees.

Accountability and Public Voice – 3.31

Free and fair electoral laws and elections: 1.75
Effective and accountable government: 4.00
Civic engagement and civic monitoring: 3.00
Media independence and freedom of expression: 4.50

The Bhutanese public participated in an extensive series of consultations with the government related to the draft constitution. In each district, people had the opportunity to attend public meetings and express their views on the draft constitution and the changes that it would bring to the political structure of the kingdom. Two sets of mock elections have been held to educate the still mainly rural population about the process of voting and choosing between different political parties for the first time. For the ordinary Bhutanese man or woman, the changes are cause for anxiety. The neighboring states of Nepal, Bangladesh, and even India have not presented particularly good role models for parliamentary democracy.

The draft constitution's 34 articles formally recognize a wide range of human rights and civic responsibilities for Bhutanese citizens. The document proposes a bicameral system of government in which the majority party forms the government and the party with the second-largest number of votes forms the opposition.4 In July 2006, a draft alternative constitution was launched by political exiles, notably human rights dissident Tek Nath Rizal, under an umbrella organization called the National Front for Democracy in Bhutan; for the most part it mirrors the official draft, but it contains key differences, notably in relation to the roles of the state-sponsored Dratshang Lhentshog (Central Monk Body) and the royal family.

Although the current cabinet has been subject to elections by the National Assembly, it cannot be viewed as based directly on the will of the people as expressed by regular, free elections. However, the chairperson of the cabinet, who acts as the prime minister, does rotate annually, and the system ensures that all ministers are able to participate fully in government. To date only one direct universal election has been held – the election of gups (heads of local government) in November 2002. Each adult over the age of 21 was eligible to vote. Article 23 of the draft constitution states that those who can "evidence by a Citizenship Card or certificate issued under law" that they are age 18 and are registered in the census of "that constituency for not less than one year, prior to the date of election; and not otherwise disqualified from voting under any law in force in Bhutan" may vote "through secret ballot at an election."5

Until March 2007, political parties were not permitted in Bhutan. However, under the terms of the constitution, political parties are to be permitted for the first time and may now be formed. In an address to the Lhengye Zhungtsho (Cabinet of Ministers) in December 2006, the former king advised that "political parties need to be established at least six months before the elections to be held in 2008." Formal registration will be in July 2007, and the Election Commission is publishing the Political Party Rules and Notification.6 The current focus on developing a democratic system is further emphasized by making governance the primary focus of the 10th Five Year Plan, scheduled for July 2008.

The draft constitution seeks to prohibit the emergence of political parties based on ethnicity, language, or religion. This reflects a concern over the potential for conflict in a small country where there are 19 languages, 3 large minority ethnic groups (Ngalong, Sharchop, and Lhotshampa) and 2 main religions, Mahayana Buddhism and Hinduism, as well as a small number of Christian converts (mainly among the Lhotshampa community). The perception that sectarian parties contributed to instability in neighboring Nepal led Bhutan to incorporate this prohibition. At present, regional differences have been contained, though it is unclear whether or not they will emerge once political parties begin to form.

The first election commissioner, Dasho Kunzang Wangdi, formerly the auditor general, was appointed on December 31, 2005, and is responsible for drawing up the new constituency boundaries and organizing voting sessions once the constitution is in place and the first elections called. The Election Commission of Bhutan was inaugurated in January 2006. It is responsible for the preparation of electoral rolls and the conduct of elections for local government and the new parliament. The commission's other functions include voter education and the formulation of a fair and widely publicized system for dealing with complaints. Recognizing the importance of training election staff officers to ensure that the 2008 elections are a success, the Election Commission introduced trainers' workshops in order to prepare various stakeholders. A Delimitation Commission was established to delineate the new electoral boundaries.7 This required the commission to scrutinize the current gewog (the smallest administrative unit in Bhutan, comprising several villages) and dzongkhag (administrative district) boundaries in an attempt to ensure that all the electoral constituencies have equal weight and representation in the future parliament.

Around 400,000 voters are eligible to participate in the 2008 parliamentary elections. However, the Department of Civil Registration and Census reported in December 2006 that only 180,897 people had registered. Officials also noted that 48 percent of those who had registered had filled out the voter registration form incorrectly.8 The Election Commission is considering conducting a further round of voter registration to ensure, for example, that people from outlying districts working in Thimphu are registered.9

The problems experienced during the 2002 gup elections appear to have been scrutinized and steps taken to ensure that the ballot boxes are standardized and that the visual and verbal instructions are clear. Recent mock elections to familiarize the electorate with the voting process highlighted the need for ongoing education of the rural population.10 It remains to be seen if adjustments to the locations of polling stations, which were a problem in the 2002 elections, will ensure a higher turnout in the 2008 contest.11

Bhutan also recognizes the need to increase the participation of local people in decision making processes, especially in rural areas. Article 22 of the draft constitution enshrines the concept of democratic local governance, and amendments to the dzongkhag and gewog development committee acts set out the legal basis for the assignment of powers, functions, and finances at these levels. The zomdu (local village councils) have historically made all decisions affecting the local community, with the participation of all households. The gups and chimi (representatives in the legislature) who are elected receive salaries from the government. According to a report on decentralization in Bhutan, although local-level administrative autonomy has been enhanced, it still remains incomplete.12

The civil service is a central part of the administration of Bhutan. It has, until recently, been the main employer of young, educated Bhutanese. Many of those selected have received further education outside Bhutan, mainly in India but increasingly in countries including Australia, Canada, Singapore, the UK, and the U.S. These graduates have ensured that the quality of the civil service has steadily improved. The civil service is often commented on by Bhutanese, and under Royal Civil Service Commission Secretary Dasho Bap Kesang, a review and broad reforms are underway. In March 2007, the first 45 civil servants in specialist and executive categories and a further 235 permanent civil servants were promoted under the new position classification system. These promotions indicate major changes and improvements in civil service appointments.13

The state-sponsored Central Monk Body currently has representatives in the National Assembly and on the Royal Advisory Council. Their presence reflects the transformation of Bhutan from a theocracy established by the founder of Bhutan, the Zhabdrung, Ngawang Namgyal, to a monarchy in the early 20th century. They have not sought to influence government policies directly but were active in promoting the abolition of the death penalty. Under the terms of the draft constitution, the current representation of the Central Monk Body in the legislature will cease, indicating a clear attempt to separate religion from politics in Bhutan. Indeed, the constitution refers to Buddhism as the "spiritual heritage of Bhutan" but does not declare it the official state religion. According to the draft constitution, all religions will be respected; this is an important issue given past tensions with the Hindu minority. After initial concerns were raised in the consultation process, the people appear to have accepted that Buddhism will not be declared the official state religion.

According to a report issued by a Bhutanese newspaper, it appears that under the proposed rules, 9,287 monks and nuns registered with the Central Monk Body will not be eligible to vote, which will slightly reduce the eligible voting population.14 This appears to be a strict interpretation of Article 3(3), which declares that "religious institutions and personalities shall remain above politics." However, according to other sources there is a fear that if this rule is more widely applied many lay gomchen (ritual practitioners) will also be ineligible to vote, which would be particularly problematic in central and eastern Bhutan.

Civil society in Bhutan is gradually developing. The main civil society organizations focus on children, women, and the environment, and these organizations work closely with the government to improve delivery of state services. Such organizations, notably the Bhutan Chamber of Commerce and Industry, exert varying degrees of influence on the development of government policies and legislation. An act governing nongovernmental organizations that would clarify their legal status has been planned for at least three years. Existing organizations are generally free from state pressures; however, they do attempt to balance any criticism, direct or implied, of the government with a close working relationship in order to ensure that the government takes their views into account.

Bhutan has substantially increased its Reporters without Borders press freedom rating, moving from 157th in 2003 to 142nd in 2005 and to 98th in 2006, when it scored 25.00 out of 100.15 This probably reflects the establishment of two additional newspapers in Bhutan, which tripled the number of newspapers from the previous one (Kuensel). The state has encouraged the development of media and private printing houses in the country, and the presence of an increasingly articulate and educated middle class is creating the demand for stronger media. The Media Act of 2005, however, provoked an outcry from a range of media representatives, especially those in the nascent film industry, as it was considered to be creating obstacles to the emerging film industry through overregulation. In May 2007, proposed controls over advertising received similarly unfavorable comment in newspaper editorials. Nevertheless, the state does not use the laws to fine or imprison those who scrutinize officials or policies. There are provisions for defamation in Bhutanese law but they are seldom invoked.

External comments on the draft constitution submitted through websites have been acknowledged by the government and appear to have influenced revisions to the draft constitution. There remains a sense that Bhutanese seek to maintain consensus in public but are increasingly willing to voice their concerns and frustrations through the new media, activity which the government has not sought to curb or prevent. Therefore, as a result of growing market competition and the public discussions surrounding the draft constitution, the willingness to report critically and reflect on the wider implications of new legislation and government policies has grown.

The Ministry for Information and Technology does not interfere with the media, with the exception of banning certain satellite television channels that are viewed as having a deleterious effect on young Bhutanese and Bhutanese social values, and the state does not hinder access to the internet. The state supports the Royal Academy of Performing Arts in Thimphu to promote Bhutanese culture. Smaller, privately run organizations seek to preserve and promote Bhutanese cultural forms – notably dances and songs from throughout the country. The small and gradually developing film industry is free to evolve without government interference.

Recommendations

  • The government should publish and circulate the rules governing political parties and eligibility to vote, as well as engage in ongoing public education to ensure both voter registration and participation in national and local elections.
  • The act governing nongovernmental organizations should be drafted and promulgated in order to strengthen the legal basis of such organizations.
  • To ensure greater local participation and accountability, local level administrative autonomy should be enhanced, and local elected officials held accountable for their actions.
  • The government should strengthen electoral management bodies and promote transparent management of the election process by election officers by disseminating pamphlets explaining the process and holding meetings in which the political process is explained in minority languages.

Civil Liberties – 3.72

Protection from state terror, unjustified imprisonment, and torture: 5.00
Gender equity: 4.00
Rights of ethnic, religious, and other distinct groups: 2.25
Freedom of conscience and belief: 4.33
Freedom of association and assembly: 3.00

Although ordinary Bhutanese are gradually being educated about their rights and duties as citizens, the concept of civil liberties is comparatively new to Bhutan, and Bhutanese society is inherently conservative. Older generations retain a worldview shaped by their experience of a hierarchical, closed society. However, young Bhutanese educated in modern schools are adapting to new ideas and values. At present, people are apprehensive about the transition to a parliamentary democracy. The formation of the first political parties later in 2007 will undoubtedly make Bhutanese more conscious of their rights under the constitution and will affect the development of civil society.

The draft constitution sets out the fundamental rights of all Bhutanese citizens. In essence, it enumerates the civil liberties to be granted to Bhutanese, including equality before the law, freedoms of assembly and religion, and freedom from torture or cruel punishments. The death penalty was abolished in March 2004, and torture is officially prohibited. There have been no recent verified reports of torture being used in Bhutan.

Until the March 2007 announcement that political parties could be formed, all parties, including the National Front for Democracy in Bhutan, were typically located outside the country, mainly in Nepal or in West Bengal in India. In July 2006, the group presented an alternative draft of the constitution closely based on the official version at a ceremony on the Nepal-India border. It is unclear whether or not these activists will be able to return to Bhutan or participate in the political life of the country once the constitution is enacted. There are no reports of any political arrests during in recent years, although the November 2006 arrest of a Lhotshampa suspected of being a Maoist does suggest that the government remains vigilant. Bhutanese authorities responded to criticisms expressed over prison conditions in the early 1990s and have actively worked with donors to improve prison conditions.

The civil and criminal procedure code of 2001 continues to ensure that detainees are brought before the courts as swiftly as possible. The High Court has stressed the importance of ensuring that cases are heard without undue delay (see Rule of Law). The state exercises control throughout the country through the police, and seeks to ensure that its citizens are not subject to abuse by private or non-state actors, especially following the removal of the ULFA/Bodo guerillas. These insurgents, who came from India's northeastern states to oppose the federal government and promote claims for independence, sought shelter in the dense jungles and rugged terrain of southern Bhutan and may have links with Maoists in Nepal. The guerillas were forcibly expelled after a brief military campaign in November and December 2003. It remains unclear how closely, if at all, ULFA/Bodo forces have worked with Bhutanese opponents of the government. A December 2006 bomb blast in Phuentsholing, a reminder of the bombings in the marketplace in Gelephu in September 2004, served to highlight the possibility that repercussions may still follow the military campaign against the insurgents. A suspected Maoist was also arrested by Bhutanese authorities, raising the specter of ongoing terrorism from among the refugee population.

Currently, Bhutanese citizens have the right of petition and appeal through the formal courts up to the king, although it is necessary to exhaust all formal avenues before appealing to the king. The draft constitution provides for a Supreme Court, which will add a further tier to the existing Bhutanese judiciary. At present, it is too early to comment on how effective the Supreme Court will be as a venue for providing redress against violations by state authorities.

The National Commission for Women and Children (NCWC) was established in 2004 and since its inception has consistently worked to promote gender equality and other issues. In general, Bhutanese women enjoy greater personal freedom and equality with men than elsewhere in South Asia. The ratio of girls to boys at primary and secondary education is now at par.16 There remain concerns, however, over maternal mortality and gender equality in employment. Women's participation in the labor force, particularly in the modern sector of the economy, remains modest. Lower levels of education and fewer skills result in women being "less employable," particularly in urban centers. About 19 percent of civil servants are women, and the number of women holding administrative and managerial positions is comparatively small. Female representation in the National Assembly, district development committees, and block development committees, although improving, is still low. The majority of the women's labor force today – up to 90 percent of rural women – is still involved in agriculture. Although some urban women have achieved prominence as the heads of successful businesses, in all sectors of paid employment, public or private, men significantly outnumber women.

The gap between male and female literacy is gradually being reduced; however, it remains one of the main barriers to female political participation, as suggested by the absence of any women candidates in the gup elections of 2002. RENEW, an NGO, is working to raise public awareness of issues affecting women. Additionally, the government has sought to work with various donors to promote awareness of remaining gender inequality and other minority issues, but it currently lacks the resources to intervene actively.

In December 2005, NCWC formulated a National Plan of Action for Women in collaboration with RENEW and other agencies. With the support of UN agencies, several workshops and events to raise awareness of gender issues were held in 2005 and 2006. In March 2006, the National Consultation on Women and Child Friendly Judicial Procedures, which targeted judicial and police personnel, was held by the Royal Court of Justice and NCWC. The executive director of the NCWC, Dr. Rinchen Chophel, noted that although existing laws provide an adequate umbrella to protect the rights of women and children, there was a pressing need "to strengthen the implementation and support mechanism to ensure that the rights are exercised and deliberated."17

The draft constitution recognizes the freedom of religion and conscience of Bhutanese citizens. It does not declare Buddhism to be the official religion of Bhutan; instead, it acknowledges it as the spiritual heritage of the country while respecting all other faiths. Proselytizing remains prohibited in Bhutan. No recent claims of religious discrimination have arisen from the Christian minority, and certain Hindu festivals are national holidays in Bhutan. The state does not involve itself in the appointment or internal organization of the various faiths, and the selection of religious figures in the Central Monk Body is entirely controlled by the monks themselves.

The state views the ethnic and linguistic diversity of Bhutan as important. However, in the mid-1990s, members of an eastern minority group, the Sharchop, did challenge the state with the creation of the Druk National Congress Party. Amnesty International reported a clampdown by the state in the east in 1997. Since then, the state has sought to address the grievances voiced by those living in the east and there is no longer resistance toward the government. No discrimination based on ethnicity or language is permitted in Bhutan.

Tensions arose between the Bhutanese government and the Lhotshampa community during the 1980s. The Citizenship Act of 1985 amended the basis for claiming Bhutanese citizenship, and a census conducted in 1988 further exacerbated tensions. In 1989, a royal kasho (decree) reintroduced the code of traditional dress known as driglam namzha and the requirement to wear the traditional gho and kira when visiting government offices and monasteries, while also emphasizing the use of Dzongkha as the national language. This was viewed as an attack on Lhotshampa cultural identity and in 1991 violence broke out, with the Bhutanese state adopting a hard line policy against the unrest. As a result, a large number of Lhotshampa fled their homes in southern Bhutan and are now living in refugee camps in eastern Nepal.

Various international NGOs, among them Amnesty International, have argued in an open letter to donors that elements of the draft constitution concerning citizenship "tend to confirm our doubts about the possibility of Lhotshampas retaining or reacquiring their citizenship."18 Among the eight recommendations proposed by the NGOs is the repatriation of those refugees in Khudunbari camp verified by the Joint Verification Team as Bhutanese and the introduction of measures "to eliminate discrimination against Lhotshampas who remained in Bhutan and to ensure the protection of their fundamental human rights ... to participate as full citizens." There are concerns that the draft constitution, which defines citizenship in terms of the 1985 Citizenship Act, will continue to restrict the granting of full citizenship to Bhutanese of Nepalese descent.

In a recent survey on human rights in South Asia published by the Asian Centre for Human Rights, Bhutan was held to have the worst human rights record, based mainly on the unresolved Lhotshampa issue.19 The report notes that Bhutan has failed to withdraw the rule introduced in 1990 under which all Nepali-speaking citizens must obtain one of a series of certificates from the police stating that none of their relatives took part in the antigovernment protests of 1990 and 1991 in order to gain admission to schools or sit for examinations. Under this rule, the children of Nepali-speaking community, especially those whose relatives were living in refugee camps in Nepal, are denied access to education. It should be noted, however, that all Bhutanese, irrespective of ethnicity, are required to obtain these certificates. In September 2006, during a visit to Bhutan by a U.S. Congressional delegation, it was announced that the U.S. had agreed to take up to 70,000 people from the refugee camps. Australia and Canada also agreed to take smaller numbers of refugees.20

From a Bhutanese perspective, expressed by Karma Phuntsho, a young Bhutanese intellectual, "the negotiations and the process of verification seems to have been obstructed more by Nepal's political instability than by Bhutan's reluctance. Doubts are being cast over whether Nepal is genuinely committed to ending the crisis."21 Nepalese authorities have faced a range of major issues, notably a bloody civil war, that have made it difficult to fully address the refugee situation. Following a series of meetings commencing in September 2005, the Nepalese government advised the Bhutanese that it does not consider the refugee issue to directly involve the government of Nepal; rather the problem is one for the Bhutanese to resolve directly with the refugees.

The Joint Verification Process agreed between Bhutan and Nepal represented the main breakthrough in recent years. During the National Assembly session in December 2006, the foreign minister gave a briefing on the current status of Bhutan-Nepal bilateral talks, which have resumed at the ministerial level after a lull following the events at the Khudunbari camp, where Bhutanese officials were attacked by refugees in December 2003. Bhutanese authorities advised their Nepalese counterparts that Bhutan would be willing to repatriate all refugees who were categorized as Bhutanese citizens, although those who had "voluntarily migrated" would be forced to reapply for citizenship, while those categorized as criminals would have to stand trial upon their return. Bhutan's use of these categories is viewed by human rights groups as a violation of the state's obligations under international law.22

Although the constitution provides for the freedom of association and assembly, during the period of this report, there remained restrictions on these freedoms. At present, and reflecting the mainly agricultural nature of Bhutan's economy, there are no trade unions. As the labor market develops it is possible that trade unions will emerge. There are no organizations or associations that Bhutanese are required to join. Demonstrations and public protests are unlawful in Bhutan, though this may change once the constitution is brought into force.

Recommendations

  • The government should invest greater efforts to promote civic awareness among citizens, especially rural populations, women, and minority groups by disseminating pamphlets explaining the process and holding meetings in which the draft constitution and the political process are explained in minority languages.
  • The government should create a task force to evaluate the problem of female illiteracy and seek out international donors to contribute resources to tackle the problem.
  • The Bhutanese government should acknowledge the rights of Lhotshampa citizens and amend the Citizenship Act in order to make the process of gaining citizenship more transparent, starting with elimination of the No Objection Certificates, Police Clearance Certificates, and Security Clearance Certificates.
  • Rules for choosing representatives for both houses of the legislature must facilitate adequate representation of politically underrepresented regions and demographic groups by setting a quota for female and minority candidates within each party.

Rule of Law – 4.58

Independent judiciary: 5.00
Primacy of rule of law in civil and criminal matters: 5.00
Accountability of security forces and military to civilian authorities: 5.25
Protection of property rights: 3.67
Equal treatment under the law: 4.00

The Bhutanese judiciary has been active in strengthening the legal system and promoting wider access to justice. As ordinary Bhutanese learn more about the modern legal system and an increasingly well-educated cadre of judges and lawyers emerges, reservations about the impartiality and fairness of the courts have significantly diminished. In January 2007, The Judiciary Service Act was passed by the National Assembly.23 For the past decade the judiciary has sought to ensure its autonomy, and the new law will enable the High Court to firmly establish its independence from the executive and legislature. In addition, the court structure in Bhutan has been augmented by the creation of a Supreme Court above the High Court, which will oversee the interpretation and application of the constitution. The new law establishes a Judicial Service Council to administer the judiciary, replacing the Royal Civil Service Commission. The chief justice, addressing the National Assembly, noted that the act seeks to ensure that the "delivery of justice and legal process is not compromised" by removing the possibility of "influential people telephoning judges." Another important aspect of the act is to enhance public confidence in the judiciary and enable ordinary citizens to raise complaints regarding judicial behavior. Broadly, the act gives the judiciary, through the new Judicial Service Council, complete administrative and financial independence over appointments, training, and promotion and the right to create or abolish posts in the judiciary in response to changing requirements and circumstances.

According to a recent report by the High Court of Justice, the importance and legitimacy of the judiciary is increasing. In 2006, 173 cases were appealed, up from 118 in 2005. This steady increase is less reflective of a growing litigiousness than a growing awareness of the modern legal system and the increasing professionalism of the judiciary.24 Legal education continues for judges at all levels, and judges and lawyers continue to educate the wider public about the laws and the role of the judiciary. A recent report released by the High Court emphasized that of the 170 drangpon (judges), approximately 50 percent hold either bachelor's or master's degrees in law and have been trained in Bhutanese law at the Royal Institute of Management. However, there is an emerging problem facing the judiciary and the nascent legal profession in Bhutan: 95 percent of all those who have received formal legal training are employed by the government. As a result, lawyers available for the public to consult are in short supply. Moreover, although the Jabmi Act of 2003 provided for the creation of the Jabmi Tshogde (Bar Council) and a Bar Association of Bhutan, neither has as yet been formally constituted. Caseload pressure on the courts is increasing, and dissatisfaction is mounting with the delays caused as a result.25 However, the Office of the Attorney General has indicated that it understands that there is a need for more lawyers and it has requested increased staff to cope with the increasing workload.26

In October 2006, the Royal Civil Service Commission (RCSC) announced that all 14 of the dungkhags will have their own separate courts by 2008. This move reflects the ongoing reform and rationalization of the judicial infrastructure in Bhutan. Until recently, cases raised in dungkhag courts, with the exception of Phuentsholing, Wamrong, and Gelephu, were heard by dungpas (local officials) who lack legal training and were not subject to monitoring by the High Court.27 Accordingly, they fell under the executive branch of the government, and the move by the RCSC and High Court will help ensure that the separation of the judiciary from the executive is thoroughly established.

The civil and criminal procedure code established that Bhutanese charged with a criminal offense are presumed innocent until proven guilty. The Office of Legal Affairs acts as the state prosecutor and is independent of the executive and legislature. Criminal trials are public and heard before an independent and impartial court. Under the Jabmi Act of 2003, the right to representation was established for criminal cases, including state provision of counsel when the defendant cannot afford to pay. The right to representation is upheld by the courts and representation is provided as a matter of course. Nonetheless, people generally have a very limited understanding of the legal process or the grounds for legal decisions, and a great deal of work remains to be done to improve the transparency of the legal process. This has been partially addressed by the recent move to publish court decisions on the official website of the High Court.28

The military has not interfered with government in Bhutan, and it is unlikely to do so. It remains numerically small, although it should be noted that following the brief military campaign against the ULFA/Bodo guerrilla forces, the use of militias has been reintroduced, ensuring that the wider population will be able to assist in the defense of the country if required. The police also do not interfere in the existing political process. Senior officers of the Royal Army and police force work closely with the government to maintain law and order.

The ordinary Bhutanese citizen may own property alone or in association with others. However, to own property or land in Bhutan an individual must be a full citizen. This can cause problems for those individuals who have permission to reside but are not recognized as Bhutanese citizens, especially Lhotshampas who are unable to meet the qualification requirements set out in the 1985 Citizenship Act. Non-Bhutanese are prohibited from owning land, which is registered on a cadastral system, with registration required for all land transactions. By law the maximum landholding is fixed at 25 acres and the minimum at 5 acres. In general, the state protects and upholds the right of private citizens to hold property. However, in 2006, the state did repossess land around Dechencholing that had been illegally occupied. Compensation was provided by the state for those who were dispossessed. This eviction was an unusual step by the state and was necessitated by the growing shortage of land in and around the capital, Thimphu.

Recommendations

  • The government should make all court cases, as well as the police investigations and allegations of misconduct, available in writing to the public.
  • The government should increase funding and continue legal training programs to fill the critical need for qualified judges and lawyers.
  • The government should encourage the creation of the Jabmi Tshogde and Bar Association to increase the quality and accountability of lawyers and access to them.

Anticorruption and Transparency – 4.12

Environment to protect against corruption: 3.60
Laws and ethical standards between private and public sectors: 5.00
Enforcement of anticorruption laws: 4.75
Governmental transparency: 3.14

Bhutan's Anticorruption Commission (ACC) was established in January 2006. The first chairperson of the commission is Neten Zangmo, who is assisted by two commissioners. Below the secretariat, there is a legal and planning division and an administrative section. The commission has eight investigators, a prevention division, and a public education and advocacy unit. Critically, the ACC is an independent organization with wide powers that it can and does exercise. During 2006, the commission worked hard to raise awareness of corruption and educate the public. A dedicated website enables citizens to report instances of corruption and emphasizes the importance of confidentiality. The complementary Anticorruption Act was passed by the 85th session of the National Assembly in the summer of 2006. The act defines corruption, vests power in the ACC, and emphasizes the duty of Bhutanese citizens to act against corruption. Importantly, the act clearly states that it will be an offense of obstruction if any individual or entity refuses to comply with any demand for access or information made by the ACC.

For a young organization, the ACC has made major progress and is working closely with a range of government agencies, the private sector, and the media. It is undertaking systematic studies of land transactions, forestry services, and the issuing and renewal of driving licenses. The ACC is also tackling problems in construction, procurement, printing, and customs.29 In 2006 the ACC conducted a major corruption perception survey, the results of which suggest that people are very concerned about corruption and perceive it as an institutionalized phenomenon that affects all sectors. Furthermore, in a move to prevent corruption by public officials, the ACC announced that all public officials from the prime minister on down should declare their assets by December 31, 2006. This deadline was extended, however, due to a "poor response" to February 15, 2007.30

The ACC is ensuring greater transparency in the awarding of government contracts and is investigating allegations of corruption. Foreign assistance to Bhutan from its major donors is carefully accounted for, and the government ensures that it is fairly and correctly utilized for the purposes for which it is provided. Donors perceive Bhutan to be less corrupt than other South Asian states and more transparent in its use of external assistance.

The ACC has demonstrated its strength and vigor by passing two corruption cases involving a former district governor and a former judge, as well as local leaders in the first case and a former district engineer in the second, to the Attorney General's Office for prosecution. By December 31, 2006, the ACC had received 283 complaints, with complaints about civil servants relating mainly to the misuse of resources. Abuse of position, discrimination (for example, based on gender or ethnicity) and the misuse of resources appear to be the main complaints against corporate managers.31 As the result of a three-month investigation by the ACC, almost two-thirds of the employees of the Royal Insurance Corporation of Bhutan Ltd. were found guilty of "misusing entitlement claims." The report revealed that 71 employees, including senior managers, had claimed in excess of 2.437 million Nu (approximately US$56,000) on medical bills and hotel rooms from their company.32

There is no freedom of information act in Bhutan. The focus of the past two years has been on creating the new framework and legislative basis for the introduction of the constitution. The provision of information about government services is improving steadily; currently, the main drawback is the considerable length of time taken to publish documents. However, there is no provision for information about government services and decisions in formats and settings accessible to people with disabilities. This may be addressed in the future, when the necessary infrastructure is in place, but is not currently feasible for the government.

Bhutanese do complain about the regulations and registration requirements that present barriers to establishing new commercial enterprises. However, these requirements are not especially onerous and the state is attempting to simplify registration requirements to promote private sector development. There are a few large private companies in Bhutan; however, the state did control the economy and used its resources to fund the major program of development. There has been a shift, reflecting the need to encourage greater individual self reliance, towards the promotion of private enterprise.

There is limited information available on the administration of the tax regime or the conduct of internal audits. In December 2005, it was reported that the Public Accounts Committee established by the National Assembly Committees Act of 2004 had not met once since it was established. This committee supposedly has oversight of government accounts, but it was noted that no agency, including the Royal Audit Authority, had submitted any report to the Assembly. This caused a review and it was agreed that a report by the RAA would be submitted to the National Assembly in order to promote greater transparency in state expenditures.33

Corruption is discussed by Bhutanese, though it can be difficult to gauge the real extent of actual corruption as opposed to dissatisfaction caused by not being successful in securing official tenders. Rumors of corruption must therefore be treated with caution.

The media increasingly report on cases of corruption brought to the courts and have been instrumental in highlighting the work of the ACC. The establishment of the ACC has created the first independent body that can investigate cases based on reports by whistleblowers and other anticorruption activists. The ACC website provides a form for individuals to submit anonymous reports of corruption, which will be investigated by the ACC. This will create a more secure environment for individuals to report cases of bribery and corruption.

Recommendations

  • A bill should be introduced to strengthen, regulate, and protect in practice and under law the right to information, as a basic tool to strengthen democracy.
  • The Public Accounts Committee must be more proactive and have the ability to request a report from any government agency. All government agencies should be required to submit annual reports before the Committee within a clearly specified time period.
  • New laws specifically protecting whistleblowers should be enacted to protect both public and private employees from reprisals for bearing witness against waste, fraud, and other abuses of power.

Notes

1 "Breaking News: Royal Kasho (the Letter from His Majesty to the People of Bhutan)," Kuensel Online (Bhutan), 14 December 2006, accessed 15 December 2006. For reactions and reflections on the abdication, see "A Nation, a King, a Shared Mandate," Kuensel, 21 December 2006, http://www.Kuenselonline.com/modules.php?name=News&Files=article&sid=785 "A Monarch: Editorial," Kuensel, 21 December 2006, http://www.Kuenselonline.com/modules.php?name=News&Files=articlet&sid=7855. For an Indian perspective on the abdication of the king, see "Bhutan Abdication," Statesman (Kolkata), 21 December 2006, accessed 23 December 2007.

2 "Rewriting History, India to Unshackle Bhutan," Kuensel, 9 January 2007.

3 Human Rights Watch (HRW), "Joint NGO Letter to the Delegates of the Bhutan Donors Round Table Meeting," HRW, 9 February 2006, http://hrw.org/english/docs/2006/02/09/bhutan12647_txt.htm.

4 For more details on the draft constitution and the current draft, see http://www.constitution.bt. Unfortunately, there is no website with the alternative draft constitution launched by the National Front for Democracy in Bhutan.

5 Draft Constitution of Bhutan, available at http://satp.org/satporgtp/countries/bhutan/document/actandordinances/constitution.htm

6 "Notification" (Motithang: Election Commission of Bhutan, 19 March 2007), http://www.election-bhutan.org.bt/Docs/fppe/pdf.

7 "Draft Delimitation Plan By March," Kuensel, 7 February 2007, http://www.Kuenselonline.com/modules.php?name=News&file=article&sid=8069.

8 "75% of Votes Registered," Kuensel, 29 November 2006, http://www.Kuenselonline.com/modules.php?name=Names&file=article&sid=7786, accessed 28 February 2007.

9 "Mitsi and Gung Transfer Still Open," Kuensel, 13 January 2007, http://www.Kuenselonline.com/modules.php?name=New&file=articles&sid=7956, accessed 15 January 2007.

10 "Whom Are You Going To Vote For?" Kuensel, 1 December 2006, http://www.Kuenselonline.com/modules.php?name=Newsfiles=articles&sid.7791, accessed 15 January 2007.

11 A major problem for locating polling stations is the terrain and the remoteness of many communities. It is an issue which will require monitoring and more resources, which at present the government does not have.

12 Tashi Wangchuk, "Increasing Rural People's Participation in Local Decision Making," Development Newsletter 1, no. 1 (Autumn 2006): 4-5.

13 "RCSC Promotes 235 Civil Servants Under the PCS," Bhutan Broadcasting Service, 15 March 2007.

14 "Lay Monks Can Vote," Bhutan Observer, 2 February 2007.

15 Reporters Without Borders (RSF), World Press Freedom Index 2006 (Paris: RSF, 2006).

16 Ministry of Finance (Bhutan), Millennium Development Goals: Progress Report 2005 (Thimphu: Ministry of Finance, Department of Planning, December 2005), 37.

17 "Women and Children Friendly Legal Procedures," Kuensel, 4 April 2006, http://www.Kuenselonline.com/modules.php?name=News&file=article&sid=6753.

18 HRW, "Joint NGO Letter ..."

19 Asian Centre for Human Rights (ACHR) SAARC Human Rights Report 2006 (New Delhi: ACHR, 2006), http://www.achrweb.org/reports/saarcar2006/main.htm.

20 Dharma Adhikari, "Bhutan's Democratic Puzzle," openDemocracy (Manchester, U.K.), 30 June 2006, http://www.openDemocracy.net. A reply to this article appeared in "US Congressional Delegation Visits Bhutan," Kuensel, 2 September 2006, http://www.Kuenselonline.com/modules.php?name=News & file=print&sid=7398.

21 Karma Phuntsho, "Bhutan Reforms, Nepalese Criticism," openDemocracy, 13 October 2006, http://www.opendemocracy.net/democracy-protest/bhutan_nepal_3996.jsp.

22 HRW, Last Hope: The Need for Durable Solutions for Bhutanese Refugees in Nepal and India (New York: HRW, May 2007).

23 "Act Empowers Judiciary, People," Kuensel, 13 January 2007, http://www.Kuenselonline.com/.

24 "Appeal Cases Increase," Kuensel, 6 January 2007, http://www.Kuenselonline.com/modules.php?name=News&file=article7sid=7922, accessed 7 January 2007.

25 "More Lawyers Required, Says Attorney General," Bhutan Times, 18 March 2007.

26 "OAG: Short of Lawyer," Kuensel, 7 May 2007, http://www.Kuenselonline.com/modules.php?name=News&file=article&sid=8432, accessed 2 June 2007.

27 "Dungkhag Courts by 2008," Kuensel, 11 October 2006, http://www.Kuenselonline.com/modules.php?name=Names&file=article&sid=7571, accessed 12 March 2007.

28 "Judgments Will Be Posted on the Web," Kuensel, 7 May 2007, http://www.Kuenselonline.com/modules.php?name=New&file=article&sid=8414, accessed 8 May 2007.

29 United Nations Development Programme (UNDP), "Fighting Corruption Is A Collective Responsibility," UNDP Development Newsletter (Autumn 2006).

30 "Disclosing Wealth," Kuensel, 21 January 2007, http://www.Kuenselonline.com/modules.php?name=New&file=print&sid=7988, accessed 12 March 2007.

31 "Illegal Land Transfer," Kuensel, 10 January 2007, http://www.Kuenselonline.com/modules.php?name=News&file+article&sid.=7940, accessed 12 January 2007.

32 "71 Insurance Employees Could Face Prosecution," Kuensel, 10 January 2007, http://www.Kuenselonine.com/modules.php?name=News&file+article&sid=7941, accessed 12 January 2007.

33 "No Work of Public Accounts Committee," Kuensel, 3 December 2005, http://www.Kuenselonline.com/modules.php?name=New&file=article&sid=6286, accessed 31 May 2007.

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