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Injunction order sought to hold NC election in Thimphu

Thimphu thromde’s NC aspirant Sonam Penjor appeals to High Court against ECB’s decision on document attestation

Aggrieved with the decision of the Election Commission of Bhutan (ECB) on the issue of document attestation, Sonam Penjor moved the High Court yesterday seeking an injunction order to keep the National Council election for Thimphu dzongkhag in abeyance.

Sonam Penjor was one of the candidates from Thimphu Thromde who contested at the Dhamngoe Zomdu on March 8.

Appellant Sonam Penjor said that of the five issues he raised, the ECB had addressed four, penalised the Thimphu dzongkhag electoral officer and bus driver, and reprimanded local government officials. “This proves that ECB saying that the allegations against NC candidate Tshokey Dorji is baseless itself is baseless,” Sonam Penjor said.

Sonam Penjor said he is compelled to appeal before the court of law since the ECB did not address the fifth issue he had raised.  “I appreciate the ECB for taking action against the electoral official and local government officials for not carrying out their duties as per the election Act and for being in the polling booth the whole day,” he said. “However, ECB did not remedy my loss appropriately.”

“Such unfair decision has caused irreparable and irreversible losses to the three Thimphu Thromde candidates due to unfair means by  Bhutan Accreditation Council (BAC) and Department of Adult and Higher Secondary Education (DAHE) on attestation of Tshokey Dorji’s qualification,” Sonam Penjor stated in his appeal letter to the High Court.

Sonam Penjor had filed a complaint with ECB on March 12, alleging that BAC and DAHE allowed Tshokey Dorji to seek a letter of authentication from the Supreme Court and had not given him a level playing field. ECB on March 31 issued its decision based on its findings, which concluded that BAC and DAHE did not give preferential treatment to Tshokey Dorji.

DAHE had also sought authentication of Tshokey Dorji’s certificate from RCSC but it did not confirm the mode of delivery. It then advised the candidate to approach the Supreme Court as per a decision of BAC.

On March 6, the Supreme Court’s registrar general issued a letter to the BAC stating that Tshokey Dorji had completed a full-time five-year LLB from the University of Mumbai, India. BAC on March 5 had said that the top court could authenticate law degrees.

Sonam Penjor claimed that the attestation was not in keeping with their own guidelines published in Kuensel on July 29, 2017. The July notification states that the process of recognition of a degree would involve validating qualifications with the awarding institutions and that the genuineness of the certificate would solely depend on the response from the university.

“This guideline was subsequently superseded only on March 31 this year when it was published in Kuensel. Hence, the guideline of July 29 last year should be valid until March 31, 2018,” he stated questioning how Tshokey Dorji got his attestation from the Supreme Court when this was not a rule on March 5 and 6. “This cannot be a rule solely to benefit Tshokey Dorji.”

In his appeal letter to the court, Sonam Penjor stated that “If we see the DAHE/BAC’s notification in Kuensel on July 29, 2017, it is clearly mentioned that aspiring candidates of 2018 must approach DAHE for their degree attestation and then DAHE will correspond through e-mail with the aspiring candidates’ school/university and that only after getting a confirmation from the aspiring candidates’ university, DAHE will attest candidates’ degree”.

“If DAHE secretly tells a few or only one aspiring candidate that they can deviate from the general rule published in their notification of 2017 regarding attestation of degrees and tell that it is not mandatory for them to get their degrees attested from their university but could get it attested from a secondary source in the country, then it distorts the level playing field for the aspiring candidates and such aspiring candidates get undue advantage in elections,” Sonam Penjor stated.

He said that BAC and DAHE made candidates like him to follow the norms set by them through their own public notification. “However, for Tshokey Dorji, they did not make it mandatory to follow the general procedure,” he said.

A public notification issued by BAC on March 31 states that alternative sources are used only after the process of seeking validation from the universities is exhausted. BAC verifies and authenticates tertiary education qualification of any individual based on the request from individuals or agencies.

“It is my understanding that the law cannot treat a similarly situated person differently,” the appellant stated. He said that the task of getting a confirmation from the aspiring candidates’ degree from the university must be considered as a task that cannot be delegated. “It has to be done by the degree awarding university or college.”

Sonam Penjor also said that any secondary agencies in the country may attest aspiring candidates’ degree but it is mandatory for the secondary agency to get a confirmation from the aspiring candidates’ school or university. “The only legally competent body to testify or certify about the genuineness of a student’s degree is the student’s own school or university and no one else,” he said.

He said that ECB had revoked the candidature of two aspiring candidates not because they did not possess a valid regular degree but on the grounds that they could not get their degrees attested by their universities on time. “The time must be the essence of the matter too for Tshokey Dorji,” Sonam Penjor stated in his appeal letter.

The reason for requesting the court to seek an injunction order holding the NC election in Thimphu until the court proceeding is complete and raising this issue, according to Sonam Penjor, is to avoid such unfair means in future. He feels that as a responsible citizen, such practices should not be allowed to set an unhealthy precedence.

“In view of the far reaching repercussions of such malpractices go unchecked and for the greater good of creating an enabling environment for a level playing field to ensure free and fair elections, I am seeking the court’s intervention,” Sonam Penjor said.

In his complaint to the ECB, Sonam Penjor also alleged that Tshokey Dorji and his supporters were involved in ferrying voters and receiving help from religious personality. He also accused Thromde Tshogde Tshogpa Phub Dem of soliciting votes by issuing VPICs at the zomdu.

Sonam Penjor submitted a voice recording of a bus driver, who according to him, had said that he had ferried passengers believed to be Tshokey Dorji’s supporters. According to the ECB, however, the driver had told the commission that he had said that in jest.

According to the election commission, 43 people were questioned and the commission didn’t find any concrete evidence to establish the claims.

The commission also found that the polling officials had allowed Thimphu Thrompon Kinlay Dorji at the polling station after he had cast his vote. He was cautioned that he couldn’t stay at the zomdu in future elections.

The election commission upheld the central election dispute settlement body’s decision to penalise the dzongkhag electoral officer and the driver, stating that such a lapse would affect the electoral process in future. However, the decision has not specified what kind of penalties or fines were imposed.

Rinzin Wangchuk

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