The Central Election Dispute Settlement Body (CEDSB) has asked former National Council chairperson Dasho Sonam Kinga (PhD) to remove his Facebook post with immediate effect, until the completion of the 2018 National Assembly Election period.
It decided that the respondent (Dasho Sonam Kinga) be issued a cautionary notice under section 29.1.5 of the Election Dispute Settlement Rules and Regulations, which deals with penalty. Section 29.1.5 states, “Take appropriate administrative action under the relevant laws and notifications.”
The CEDSB has asked DPT to categorically denounce violence under all circumstances and particularly related to election.
The CEDSB decision on Druk Phuensum Tshogpa (DPT) vs Dasho Sonam Kinga case was taken on September 8. It was shared with the parties yesterday.
Section 4.4 of the ECB social media rules and regulations, 2018, states, “No individual shall communicate/transmit/post hate messages or any content with intent to defame or reduce the electoral chances of an opposing contestant or Political Party.”
The CEDSB states that the key terms/ phrases with reference to the specifics of the case are – no individual, hate message, intent to defame and intent to reduce the electoral chances.
The CEDSB’s finding 8.1 (iv) notes DPT’s contention that the Facebook post has caused damage to DPT, which is based on reports from its candidates and members in the fields. DPT contended that it affects the level playing field for the contesting parties.
The contention of Dasho Sonam Kinga, the CEDSB states, requiring DPT to “prove beyond reasonable doubt” is not tenable in view of the intent and wording (chances) of the provision. The fact that it has generated quite a lot of interest even in the mainstream media, it states, contributes to the preponderance of evidence that the post may indeed affect the electoral chances, one way or the other.
Dasho Sonam Kinga argued that the post is not politically intended and had also posted on another upcoming book. DPT contended that it affects the level playing field.
“The fact remains that the post, posted during the election period, highlights the past notorious actions of a political party, which may affect the electoral chances of that political party in the on-going elections,” the CEDSB states.
It states that Dasho Sonam Kinga’s expressed intention of publishing the book only a couple of months after the election period (December 2018) questions the intention as to the post being made during the election period. Dasho Sonam Kinga, it states had the option to share and promote his publication after the election period in mid-October. “Moreover, the respondent (Dasho Sonam Kinga) has submitted that the publication of the book has been withheld for the last eight years and not being able to hold off for a month and half to share specifically during the election period does not appear convincing.”
Based on the findings stated in 8.1 (iv), the CEDSB asked Dasho Sonam Kinga to remove this Facebook post.
TheCEDSB’s second decision to issue a cautionary notice to Dasho Sonam Kinga is based on its findings, 8.1 (viii) on Dasho sharing the content of the post through WeChat. DPT had alleged that the content on WeChat had gone viral. Dasho Sonam Kinga had contended that DPT had first disclosed the complaints to the media when the matter was sub-judice with the ECB. In response to the concerns of his friends and family, he claimed he was forced to explain in a common WeChat message in late afternoon or early evening of September 6.
The CEDSB states that technically, the matter would be sub-judice only after the receipt of the complaint by the media arbitrator’s office on September 5. However, the release of the WeChat message was on the eve of the hearing on the case. The commission had also issued notifications on use of social media during election period on August 31 through TV and newspapers on September 1. “Therefore, sharing of the WeChat message on September 6, practically impossible to recall, is not in keeping with the prior notification besides being sub-judice.”
Its third decision, asking DPT to denounce violence under all circumstances and particularly related to election is based on its finding 8.1 (ix) on Dasho Sonam Kinga’s submission of threat and violence on social media through fake facebook account.
The CEDSB states that the allegations being criminal in nature, the recourse must be sought in accordance with the due process of law and may be pursued separately with the law and order and security agencies. “The CEDSB finds the response of DPT to this, during the hearing, to be most disturbing as violence in no circumstance can be condoned or pardoned and particularly in the charged environment of competitive election campaigns, all leaders, candidates, political parties and stakeholders must take great care to ensure that violence has no place in our democracy and democratic process.”
Any party not satisfied with the decision may appeal to the Election Commission in accordance with Section 21.2 of the Dispute Settlement Rules and Regulations, 2018.
CEDSB on other key terms/phrases – no individual, hate message, intent to defame
While Dasho Sonam Kinga has not sought exemption on the fact that he is not a candidate or member of a political party participating in the on-going elections, the CEDSB notes that the “no individual” means the respondent would not be exempted on such grounds.
The CEDSB takes a “hate message”to include any message that advances hatred and incites violence. Dasho Sonam Kinga argued and provided evidence that the contents of his Facebook post are materials already in the public domain and that his post is a summary of events and happenings. The CEDSB states that DPT failed to prove its submission that the post is a hate message. It states that, Dasho Sonam Kinga himself has reported receiving threats to this life from fake email accounts.
The CEDSB found that the intent to defame does not apply in this case. DPT had submitted it was not commenting on the content but on the timing of the post. Dasho Sonam Kinga had argued during the hearing that the this phrase “intent to defame” would apply only if the contents were false and provided evidence that these have not only been unchallenged in the public domain but there have been recent indications of acceptance by senior members of the party.
On the media arbitrator’s office finding the post an offence of ‘third party election advertising, under Section 7.2 of the social media rules, the CEDSB states that this section does not apply to this case. Dasho Sonam Kinga quoted the exercise of his fundamental right to freedom of speech, opinion and expression. DPT did not make any contentions or provided any grounds that Dasho Sonam Kinga has advertised online on behalf of a political party or candidate.
The CEDSB states that it is acutely aware of the need to protect, uphold and promote the right to freedom of speech, opinion and expression and, particularly during an election, there must indeed be diversity of views, voices and choices. “At the same time, the ECB must safeguard the level playing field to all stakeholders, which is ensured through the judicious application and implementation of the set rules of the game, drafted and presented in the electoral laws, which includes the rules, regulations and notifications issued by he election commission.”
Dasho Sonam Kinga
Dasho Sonam Kinga has removed his Facebook post and told Kuensel that he would not appeal against the decision.
“I welcome ECB’s decision on the case lodged against me by Druk Phuensum Tshogpa on my Facebook post of August 31, 2018,” he wrote on his Facebook.
ECB had given both parties a patient hearing. I thank ECB for that opportunity, he states.
“The most important thing is that DPT has neither refuted nor challenged the contents of my post. This is the key outcome of the case!” he states. “ECB has asked me to remove my post immediately till the elections are over. I have already done that. It said it will issue me a cautionary note. I welcome it in the circumstances. It is NOT a reprimand!”
He wrote that he is particularly happy that ECB requires DPT to ‘categorically denounce violence under all circumstances and particularly related to elections.’
“No party should take recourse to incitement of violence and threat of life,” he states. “I still have the option, if necessary, to take DPT to court for its threat of death and violence on social media. I would like to thank all of you for believing in the cause that I stand for.”
DPT’s general secretary Sangay Phurba said the party respects the decision of the ECB and will follow its instruction. He told Kuensel that DPT would not appeal against the decision.
At 8.08pm yesterday, DPT posted a notification on its official Facebook page stating that DPT, as a party that is fully committed to preserving and promoting unity and harmony among the people, does not prescribe or encourage or subscribe any form of intimidation or threats against any individual or institution.
“Doing so through social media or any other platform, either to incite hatred or in retaliation against provocative and defamatory posts by individuals or any parties; stand against our core values and principles of equity and justice.”
Its notification advises all party members, candidates and supporters to refrain from any form of use/misuse of social media that may directly or indirectly be construed as damaging or harmful to a person or reputation of other entities. “Where deemed necessary, we will continue to seek redressal and restitution from concerned authorities of the royal government.”
DPT president, Pema Gyamtsho said the party is happy with the ECB’s decision.
“No citizen, regardless of what privileges they enjoy, should think they are above our laws and expect exceptions. On our part, we will always seek justice from the authorities concerned and will respect their ruling,” he said. “While DPT has no means to curb reactions from individuals, whether they are party members or others, we do not subscribe to any views that undermine our core values of tolerance, compassion and understanding in order to promote and preserve peace and harmony among our people.”