With the institution of democracy in Bhutan, the right to vote has become a cornerstone of democracy. Election Commission of Bhutan (ECB) is mandated by Constitution to facilitate the growth of democracy by conducting free and fair elections. One of the tenets of free and fair elections is maintaining an apolitical civil service. Yet, unlike religious figures, the civil servants have voting rights. Therefore, finding a balance between being apolitical and ensuring voting rights remains confusing and a herculean task.
The voters are actual builders of democracy and right to vote is a fundamental right. Former Chairman of the Drafting Committee of Constitution, in his comments on Constitution stated that, voting is a suffrage and sacred political right given to the citizens. UN Human Rights declarations term voting as “freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of life.” Professor Pildes considered voting right as “the foundational right of democratic self-governance, or the right to preservative of all other rights.” He further stated that, voting right protects several distinct interests including expressive interest in equal political standing that inheres to each citizen and in selecting the representatives and political power. Therefore, voting is not merely casting vote but extends far beyond.
ECB with an objective to maintain an apolitical civil service, took numerous steps among entire public service including prohibition of civil servants and local government officials from attending political campaigns as voter, or common forums or from making any statements on election in any form of media, whether social or mainstream media or any form of public gathering including conduct of rituals or celebrations without their permission. But there is no clear law that authorizes ECB to put in such restrictions. Further, freedom of speech and expression are most important tenets of true voting rights and curtailing of freedom of peaceful assembly, speech and expression may directly or indirectly negatively affect the voting rights. The only law that states about apolitical civil service are Article 26(a) of the Constitution and Civil Service Act 2010. Section 26(a) of Civil Service Act defines apolitical as “not linked with political parties or engaged in any political activities.” But the definition of what constitutes political activity remains vague and undefined.
According to American Federal Employee laws, political activity includes volunteer in any capacity in connection with a partisan candidate or partisan election or run as a candidate or Campaign for or against a candidate or make a campaign speech or distribute campaign material printed by a political parties or organize or manage political rallies or meetings or work to register voters for one party only or use official authority or influence to interfere with or affect the result of an election, undertake any partisan political activity. However, any expression of personal views on political candidates, or attending political campaigns or criticizing candidates and discourse on election are not considered political activity. Therefore, ECB’s restriction on the entire public service from exercising their freedom of speech and expression pertaining to election remains ambiguous and too restrictive.
When ECB prohibits any form of expression of opinion in mainstream media including discussion of one’s own candidate, their ability, quality, attend political campaign, common forum or ability to ask questions and scrutinize political manifestos or campaigns organized under scanner of ECB, it seems to violate the voter’s right to informed decision. It may constitute not apolitical only if, a person directly or indirectly supports any political party, promote a candidate or perform any function on behalf of any political party or expressing views and opinions that support one party. Mere expression of views or opinions about politics should not be considered as being political. It is because, only through such activities, a voter can understand about the political parties and their candidates. It will help the voter to make better judgment and informed decision while casting the vote. If one cannot attend any political events in person to listen to their candidates or scrutinize them, one can never be confident and sure about what that party can deliver, or candidate can do. Former Chairman of Constitution Drafting Committee clearly stated that, any control on freedom of speech and expression “discourages all true scholarship and learning and is a travesty of truth” and that is it is recognized as fundamental rights.
In one of the landmark cases in India, the Indian Supreme Court said “Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant democracy.” Therefore, freedom of speech and expression are indispensable means to free exercise of one’s franchise in a democracy or ensuring true voting rights. Freedom of speech and expression also means, right to express one’s views and opinions freely, whether social media or more so in mainstream media. Such freedom will also help to curb, the most damaging and dangerous fake news, anonymity as citizens do not need to fear of consequences of what one expresses as long it is true and with good intention. More restrictions also mean, some citizens will be forced to go anonymous and create chaos, spread biased, unfounded and false rumours in the society. With increasing number of social media as well as number of users in the country, it can only increase the negative impacts. If such rumours are spread just ahead of voting, it can affect the election results. On the other hand, if mainstream media are free to publish opinions and views of all the voters, it may encourage more formal discourse and health debate and take away public’s attention from social media rumours and unfounded posts published by fake identities. In a nutshell, voting is a right that ensures that, opinions and views of people are communicated to the state by electing the right candidates who support the majority opinions.
However, in an effort to maintain an apolitical civil service, ECB is unintentionally affecting the rights of the voters and more so in making informed choice as there is very limited information about parties and their capabilities. Further, all public servants are not civil servants. The best intentions of the ECB cannot be questioned. We know that, ECB does this to ensure, free and fair election and maintain an apolitical civil service. But, the institution must look beyond single apolitical lens. If not, it may infringe on the rights of the voters to make an informed choice. In the end, it is not the political parties that determine the democratic government but the voters. It is not merely about very restrictive process of election in the name of free and fair election or informed choice, if there is too much restriction and regulations on the voters. It is through exercise of freedom of speech and expression that helps the voters to determine the best choice and take an informed decision. While, it is understandable, the pressure and difficulties faced by ECB, it is also important for any institution in conduct of elections, find a balance between the voter’s right and electoral procedure. Over regulation is never an answer in democracy and more so in building a vibrant democracy. After all, true democracy means as said by Abraham Lincoln “government of the people, by the people and for the people”. And without the freedom of speech and expression, mere right to vote would not constitute a democracy and democratic values and principles.
The author is a lawyer based in Thimphu