Countries at the Crossroads 2005 - Bhutan

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

Introduction

Author

Richard W. Whitecross is a lawyer and lecturer in the School of Social and Political Studies, University of Edinburgh. His doctoral thesis, The Zhabdrung's Legacy: State Transformation, Law and Social Values in Contemporary Bhutan (2002) examined local-level understandings of legal change and law in Bhutan.

Bhutan lies in the eastern Himalayas, south of China and north of India. With a population of about 764,000 and a territory approximately the size of Switzerland, it is a traditional monarchy in the process of becoming a parliamentary democracy.

Bhutan is unique in its character as the last remaining Himalayan Buddhist state. In 1616, the Zhabdrung, Ngawang Namgyal, came to the region from Ralung in southern Tibet.¹ Following an active policy of consolidating his authority in Bhutan, the Zhabdrung unified the territory under the Drukpa (a religious sect) theocracy. The system of government introduced by the Zhabdrung took its definitive form in the 1640s and continues to influence the political administrative structures of contemporary Bhutan. Furthermore, the Zhabdrung introduced driglam namzha, a code of conduct and etiquette based on Buddhist concepts and monastic practice, to Bhutan.²

The monarchy was established in 1907. The third king, Jigme Dorje Wangchuk (reigned 1952-1972), introduced wide political, social, and economic reforms that have continued to shape contemporary Bhutan. In 1953 the king established the National Assembly with 150 members. In 1965, a Royal Advisory Council was created. Acknowledging the importance of international recognition, especially after the occupation of Tibet by Chinese forces in 1950, Bhutan eventually joined the United Nations in 1971.

The physical geography of the country, where steep mountains separate valleys, until quite recently limited communication and movement of peoples. It was only with the assistance of India beginning in the early 1960s that road building began in Bhutan, thereby permitting communication and movement of people and goods. As a result, the rate of change in the country has increased exponentially during the past 40 years. However, Bhutan remains primarily a rural society shaped by traditional norms and networks. Many communities are still several days' walk from the nearest road, and, accordingly, all political changes must be set against the considerations of Bhutan's geography and the traditional Buddhist social organization, which remains largely intact throughout the country.

The fourth and current king, Jigme Singye Wangchuk, ascended the throne in 1972 at age 17. The king has inaugurated political changes as part of a determined drive to establish a constitutional monarchy in conformity with international norms. The king transferred his royal powers to an elected council of ministers by royal edict in 1998, and the chairman of the council of ministers, a position that rotates among the cabinet ministers, now acts as prime minister and head of the government. However, although royal powers have been transferred, the king retains a high degree of personal authority due to the deep respect the population accords him. The king has worked very hard to promote change in Bhutan while recognizing the country's vulnerability to negative outside influences (for example, consumerism, the breakdown of the extended family, and youth delinquency).

At present, there is no written constitution. In November 2001, the king announced that the first written constitution should be prepared for Bhutan. A drafting committee was appointed and a draft submitted to the king and cabinet in 2002. The draft constitution underwent further revision with the advice of an Indian constitutional law expert, and has been circulated for public discussion throughout the 20 dzongkhags (administrative districts) prior to debate in the National Assembly.³. [Editor's note: The finalized draft of the constitution was made available publicly in March 2005.⁴ The 34 articles formally recognize a wide range of human rights for the Bhutanese, including freedom of expression, equal access to state services and opportunity, freedom of religion (Article 7). In addition, it sets out the basis for the development of registered political parties (Article 15) and provides that the majority party forms the government (Article 17).] If ratified, the constitution will provide for greater political openness and opportunity for change in the country. However, fully effective governance in Bhutan will require a major transformation in attitudes toward political participation, including an acceptance of criticism from the public by officials of all ranks.⁵

In December 2003, the kingdom launched a successful and relatively bloodless campaign against Indian insurgents from the United Liberation Front of Assam, the National Democratic Front of Bodoland, and Kamtapur Liberation Organization, who had established camps in southern Bhutan during the 1990s, thereby preventing development in these areas. The military action was undertaken after the king and government had made repeated attempts to resolve the situation peacefully. The action was taken partly as a result of increased pressure by India on Bhutan to expel the insurgents, who were involved in a range of guerrilla activities in the northeastern states of India. The speed with which military action was taken was noteworthy, although in September 2004 a bomb blast in the southern border town of Gelephu raised the specter of ongoing terrorist attacks by these insurgent groups.

Accountability and Public Voice – 2.40

At present there are no officially recognized political parties in Bhutan. [Editor's note: The draft constitution allows for the establishment of political parties so long as they "promote national unity." Parties based on "region, sex, language, religion, or social origin" are forbidden, and parties may be banned by the Supreme Court or the parliament if their dissolution is deemed in the national interest. Elections are to be publicly funded, and only the top two political parties may participate in each general election (Article 15).] Various opposition groups such as the Bhutan People's Party, Bhutan National Democratic Party, Bhutan Gorkha Liberation Front, and the Bhutan Communist Party have emerged outside the country and draw their support from people living in refugee camps in eastern Nepal.⁶

The National Assembly was established in 1953 as part of the reforms introduced by the third king. The main function of the National Assembly is to enact legislation for the country, review the five-year development plans and programs initiated by the government, and preserve Bhutan's unique national identity by protecting and promoting its customs and traditions.⁷ The legislature has oversight of government budgets and elects the cabinet ministers. At present the National Assembly has 150 members; 105 representatives (chimi) are elected from the individual dzongkhags, 10 members are nominated by the Central Monk Body, and 35 are nominated by the government.

The elected representatives are chosen either by secret ballot (as in the case of gups – the heads of local government) or by consensus of the gups and the head of each household (for chimis).⁸ Any Bhutanese citizen irrespective of gender can stand for election provided he or she is above 21 years of age. Although the representatives criticize some policies, most have only a modest understanding of politics and economics and are more locally than nationally focused.⁹ The annual reports of the National Assembly suggest a conservative stance on the part of its members. Although criticism of aspects of government policies or questions concerning draft legislation are permitted, many Bhutanese voice concerns that the National Assembly representatives lack the education and experience necessary to debate the increasing complexity and volume of draft legislation.

In 2002 the country made a major move toward deepening democratic participation in local government. Under a law enacted by the Gewog Yargye Tshogchung Chatrim (National Assembly), direct universal election of gups was introduced. Elections for gups in 199 of the 201 gewogs (the smallest administrative unit in Bhutan, comprising several villages) were held in November 2002. It was the first secret ballot election held with universal suffrage in Bhutan; each adult over the age of 21 (males and females enjoying equal rights), rather than a representative from each village household, was eligible to vote.

This experience of direct participation in the electoral system raises important issues that will affect future elections in Bhutan. First, there are concerns about the application of inconsistent eligibility criteria at some of the polling stations. For example, in one gewog nearly 40 percent of the potential voters were denied the opportunity to vote because they could not produce their national identity cards.¹⁰ Second, the voter turnout throughout the country was low. Third, practical issues concerning the location of the polling booths need to be addressed; for example, many voters walked considerable distances to cast their votes, and this may indicate why turnout was low. Finally, an independent election authority is needed to oversee all future elections to ensure consistency throughout the country in the presentation of ballots and the physical layout of polling stations and to help educate the public about the process of voting. The election authority is being established, but it is unclear when it will be operational.¹¹

In addition to the constitution, a draft election bill has been prepared, but it is unclear how it will address the shortcomings of the 2002 election process. The draft election bill may contain provisions concerning election campaign finances, or these may be regulated by a separate piece of legislation. However, at present elections are small-scale and localized; it may not be until the constitution is implemented and political parties emerge that detailed provisions regulating campaign finances will be introduced.

A major official policy document published in 1999 stresses the separation of each branch of government.¹² Significant political reforms of 1998 effectively passed royal powers to a council of ministers who are elected through a secret ballot by the National Assembly representatives. The National Assembly has become increasingly critical of ministries, and recent debates have raised serious concerns over policy issues. However, there is still a widespread belief that the National Assembly is not yet fully independent of external private influences (business concerns, social networks), and reports of the National Assembly debates indicate that it remains strongly conservative.

The civil service was until very recently the main employer for young graduates in Bhutan. Selection is based on academic qualifications; for many this meant being given further training before entering their respective ministry. The current head of the Royal Civil Service Commission, a progressive, has been emphasizing the need for civil service matters to be dealt with efficiently and openly rather than being delayed. Some Bhutanese complain about the inefficiency and the contradictory advice provided by low-level officials – for example, in explaining how to obtain a business license or submit a contract tender.¹³ As a result, such reform has widespread popular support.

While the Bhutanese researcher Lham Dorji comments that "the use of the term [civil society] within western contexts creates room for confusion in identifying civil society within our own context," civil society in Bhutan is limited.¹⁴ A few nongovernmental organizations (NGOs) are emerging that focus on gender, education, environmental issues, and providing training for people with disabilities, but as yet there is no formal mechanism for the involvement of civil society organizations in the decision-making process. Outside Bhutan, mainly in Nepal and India, a variety of groups and organizations established by Nepalese refugees focus on critical human rights issues. Once Bhutan's constitution is formally enacted, it is possible that it will create new opportunities for civil society to emerge by engaging the people more fully in the political process and enabling them to develop new networks of association: For example, the emergence of parents' groups to voice concerns over educational matters or access for children with disabilities to special needs education. This may be enhanced if the Office of Legal Affairs evolves into a fully fledged ministry of justice with, as suggested by the European Union, "a Human Rights Unit to both promote human rights as well as interact with external agencies." This reference appears to foresee civil society developing and new nongovernmental organizations being established in the country.¹⁵

There is no diversity of independently run media in Bhutan. Kuensel is the only national newspaper; it is available in English, Dzongkha, and Nepali. Originally government owned, Kuensel was privatized in 1992. In general it is not very critical of government policy or officials. However, editorials questioning government efforts toward good governance are increasing and are positive signs of a change in the media. Although there are rumors of various individuals' being offended by the tone of certain editorials, it appears the authors are able to continue publishing without interference.

The Bhutan Broadcasting Service is government run and similarly does not offer the public any critical assessment of government policies.¹⁶ The Internet is available and has been unrestricted in Bhutan since a second Internet provider was introduced in 2004. Access is gradually being introduced throughout the country. One positive contribution to freedom of speech in Bhutan has been the introduction by Kuensel of KuenselOnLine. The section "From the Readers" provides a forum for the public to raise topics and engage in online discussion. Although analysts have acknowledged that some comments from readers are screened out, the range of topics is wide, and government policies and officials (though rarely named) are openly debated and criticized. This, however, is a forum in which opinions are expressed with a degree of anonymity. There remains a deeply ingrained reluctance to criticize officials openly because such criticism is viewed as disrespectful.

Recommendations

• The requirement for the national identity card for voters should be dropped until the Department of Registration is able to issue national identity cards more efficiently.
• Ballot boxes must be standardized, with visual and verbal instructions displayed on the boxes in order to make the electoral process simpler for voters. The location of polling stations should be reconsidered in light of the low turnout for the 2002 gup elections.
• Bhutan Broadcasting Service should be placed under an independent broadcasting board. News media sources should be diversified and not solely under government control.
• Grassroots civic education programs should be developed to ensure public engagement and understanding of the democratic reforms being introduced.

Civil Liberties – 3.36

At present no separate bill of rights sets out the civil liberties of Bhutanese citizens. Although there has been some recent questioning of traditional values, a general consensus, even among young educated Bhutanese, maintains the significance of traditional patterns of social interaction and respect toward elders and social superiors.¹⁷ [Editor's note: The draft constitution enumerates for the first time the civil liberties to be granted to Bhutanese citizens, including equality before the law, freedoms of assembly and religion, and freedom from torture or cruel punishment (Article 7). It also establishes that Bhutanese citizens have a duty to preserve the nation's cultural heritage and to act in aid of the laws by reporting crimes, including those committed by government agents (Article 8).] There are no reports of the arbitrary or unlawful deprivation of life by the government or its agents. In March 2004, the death penalty was formally abolished. Prison conditions in Bhutan have improved significantly since visits by the International Committee of the Red Cross (ICRC) in the mid-1990s. According to Amnesty International, 11 possible prisoners of conscience from eastern Bhutan are currently serving prison sentences. Four had completed their sentences but had not been released. There were a further 50 political prisoners from southern Bhutan. One such prisoner was sentenced to life imprisonment because he was formerly a member of the Druk National Congress, which is banned.¹⁸ Concern over the treatment and welfare of prisoners has been taken into account in recent structural changes in the design of new court buildings, police, and criminal procedures. Torture is officially prohibited.

There have been no recent murders or extrajudicial killings of political opponents or peace activists in Bhutan. Although there are unverified reports of abuse by the armed forces and the police, mainly toward Southern Bhutanese, no arbitrary arrests have been reported recently. Rather, there are unconfirmed reports of police checking southern Bhutanese papers and withholding important certificates, without which the individuals are placed in a potentially vulnerable position. The introduction of a computerized charge sheet and the requirements of the civil and criminal court procedure code in 2001 make arbitrary arrest very difficult.

The 2001 civil and criminal court procedure code ensures that all detainees are brought before the court as swiftly as possible. Recent reforms have significantly increased the speed with which trials are heard by the courts (see "Rule of Law"). Abuses by non-state actors are not tolerated. However, Bhutanese women privately acknowledge that it is only recently that the Royal Bhutan Police have begun to take cases of domestic violence seriously. The Royal Bhutan Police have undergone training on human rights and are aware of the importance of following the correct procedures when detaining and charging individuals. However, the process of education will have to be ongoing in order to change ingrained attitudes.

There is a right of petition and appeal through the formal court process up to the king. However, it is unclear to what extent ordinary Bhutanese, especially those in rural areas, understand this system. The High Court has carried out various workshops to increase understanding, and several district court judges have toured their respective districts to explain the role and use of the courts. Yet issues of distance and a social disinclination to approach high officials may hamper effective and meaningful access to and use of the right of petition and appeal.

Compared to those in other parts of South Asia, Bhutanese women enjoy greater freedom and equality with men. The right to inherit often passes property to women rather than men. However, in some respects Bhutanese women are still not equal with their male counterparts. Gender inequalities remain in school enrollment as well as functional literacy. Women still do not receive equal pay with their male counterparts. In August 2003, the National Assembly formally enacted legislation to prevent trafficking in women and children, and this was underscored in the penal code enacted in 2004. There is no reported problem of trafficking in women or children in Bhutan.¹⁹

The government recently established a National Commission for Women and Children designed to monitor implementation of women's and children's human rights. Eventually the commission will also be empowered to receive and investigate complaints of human rights violations. Given its early stage of development, it is unclear how effective the commission will be in its role. Its legitimacy will depend on how truly independent it is from government and it effectiveness on whether it is adequately staffed and resourced.²⁰

Although some women have been appointed to higher positions in the government and NGOs, including the first female district court judge in 2003, a strong need remains to enhance women's access to and active participation at all levels of government. The NGO RENEW has noted that "a traditional lack of education for girls has resulted in significantly lower levels of achievement for Bhutanese women, who continue to be highly underrepresented in higher-skilled and higher-paid professions." It also notes women continue to be subject to "indirect forms of gender bias" in both home and workplace.²¹ The number of women in the National Assembly is gradually increasing, although women are still notably reluctant to stand for election. In the gup elections of 2002, there were no women candidates in any of the gewogs, and the proportion of women who voted compared to the number eligible to vote was significantly lower than for male voters.²²

The government recognizes the importance of freedom of religion and conscience and is seeking to balance that fundamental right with a desire to preserve Bhutan's own religious traditions. Bhutan is officially a Buddhist country. [Editor's note: the draft constitution maintains the role of Mahayana Buddhism as the official religion in Bhutan and requires all religious institutions to act "to promote the spiritual heritage of the country (Article 3).] At present, the state formally supports the Central Monk Body of the Drukpa Kagyu sect. The state does not interfere in the appointment of religious or spiritual leaders. To a lesser degree, state funds are made available for Nyingma monasteries and temples. The Nyingma sect is more prominent in central and eastern Bhutan, and relations between the two sects are generally positive.

A significant Hindu population lives chiefly in the southern districts, although not all southern Bhutanese are Hindu, and many would describe their religious practices as syncretic (in particular, those descended from Tamang and Gurung migrants may be Buddhist from birth).²³ Buddhists do not view the Hindu deities as separate from those of the Buddhist pantheon, and Hindus sometimes worship in Buddhist temples. Hindu festivals are recognized by the state and are openly celebrated. Information on the amount of state support for Hindu religious sites or teachers is unavailable. Until 1990 five pathshalas (religious teaching institutions) operated in Bhutan, but they were closed following disturbances in southern Bhutan. By 1999, two pathshalas had been reopened to provide Sanskrit training for the performance of Hindu rituals. Sadhus (Hindu holy men) are not uncommon sights in Thimphu and the southern districts and are treated respectfully by all communities.

The small and gradually increasing Christian population is drawn primarily, though not exclusively, from among the Southern Bhutanese. Various reports suggest official moves to prevent freedom of worship in the late 1990s and early 2000. The general trend is tolerance toward the Christian community. However, Christians are still not permitted to proselytize actively. Employers are aware of Christian employees, but there is no active discrimination against them.²⁴

In all parts of society, the majority of Bhutanese are respectful toward other religions. However, at present no specific legislation in Bhutan prohibits discrimination on the basis of religion. While the majority of Bhutanese view the choice of religious belief as a private matter, one does encounter occasional skepticism over the reasons for conversion. Conversion to certain evangelical forms of Christianity among those residing in the refugee camps and Kathmandu has politicized religion. This is in turn linked to a deep concern among educated Bhutanese over the targeting of Bhutan by evangelical missionaries and the use of financial incentives to gain converts. [Editor's note: The draft constitution ensures that all Bhutanese will enjoy religious freedom, although there is a prohibition on "inducement" to change religions, which may restrict proselytizing (Article 7).]

No one ethnic or linguistic group dominates in Bhutan. The Ngalong, Sharchop, and Bumthaps, together with the smaller linguistic groups and nomads of Laya, Lingzhi, and Merak Sakteng, share a common religion and have been treated as part of one nation since the 17th century. In particular, Buddhism is central to the identity of the Ngalong, Sharchop, and central Bhutanese and unites these populations with a shared cultural heritage. The monarchy has its historical roots in central and northeastern Bhutan, and these links serve to unite the various linguistic and ethnic groups. Cross-marriage between ethnic and linguistic groups has been increasing.

The Druk National Congress (DNC) sought in the early 1990s to gain support in the east of Bhutan by arguing that the Sharchop (eastern Bhutanese) were being marginalized by the central government and that the DNC would be better placed to provide for the Sharchop. In contemporary Bhutan, Sharchop are not marginalized, and indeed they are active at all levels of government, the judiciary, and private enterprise. However, in addition to the eastern prisoners of conscience noted above, Amnesty International has noted discrimination against southern Bhutanese in terms of access to employment and higher education. Amnesty has also cited difficulty among southern Bhutanese in obtaining security clearance certificates, which are issued by the police and required for activities such as acquiring a passport and gaining admission to school.²⁵ The smaller groups, for example the Doyas and the nomadic peoples of Merak Sakteng, are supported by the government in maintaining their cultural identities within Bhutan. All ethnic groups are represented in the National Assembly, although no official figures on representation are available.

Nepali settlers have been arriving in the southern region since the late 19th and early 20th centuries. The settlers came from a range of ethnic and linguistic groups from primarily eastern Nepal. These groups are collectively referred to by the Bhutanese as "the people of the southern border" or Lhotshampa. The majority are Hindu, although some are Buddhist.²⁶ Since the 1980s Bhutanese from the central region have been settling in urban centers that have been developed in the south as well.

In the late 1980s, people of Nepalese descent claimed that the Citizenship Act of 1985, the manner in which the 1988 census was conducted, and other new government policies discriminated against them. For example, they objected to the re-emphasis of driglam namzha and specifically the requirement to wear traditional Bhutanese costume when entering public offices and temples, closure of Sanskrit schools, and the promotion of Dzongkha language teaching. According to the government of Bhutan, the emphasis on Bhutanese cultural traditions and language was designed to promote a cohesive national identity in face of mounting external pressures that were perceived to be eroding Bhutan's unique cultural tradition.²⁷ The disagreement led to a series of public protests in the southern dzongkhags and serious confrontation with the army and police in the early 1990s.²⁸ Since that time, a significant number of people of Nepali descent claiming Bhutanese citizenship have resided in refugee camps established by the United Nations High Commissioner for Refugees (UNHCR) in eastern Nepal.

In 1994 the governments of Nepal and Bhutan established a joint verification process. Under the terms of this agreement, two teams of Bhutanese and Nepalese officials would examine each of the refugees' claims to Bhutanese citizenship, and those deemed to be genuine Bhutanese would be permitted to return and settle in Bhutan. The verification exercise carried out in Khudunabari camp categorized 70.55 percent as having emigrated from Bhutan voluntarily and only 2.4 percent as genuine refugees.²⁹ However, the joint verification process was disrupted when frustrated residents violently assaulted Bhutanese officials on a visit to the Jhapa camp in December 2003.³⁰ To date, there are no reports of the process resuming.

No legislation prohibits discrimination on the grounds of disability. Two institutions educate and train students with disabilities. However, although disability has been recognized as a separate issue, it is still treated mainly as a health concern. Access to employment is very difficult, with little provision for physical access and equality of opportunity. There is no provision to ensure that information about government services and decisions is made available in formats and settings accessible to people with disabilities. This reflects the fact that educational facilities for a range of disabilities are still being established and developed in the country rather than an intentional oversight.

At present the government is the largest employer in Bhutan through the civil service and education. Currently, no antidiscrimination legislation applies to employment and occupation. There is a Labor Act, and a draft of new labor laws has been prepared. However, employment laws and, more particularly, antidiscrimination laws have not been seen as a priority. At present, no legal provisions permit the formation of trade unions. This is due primarily to the small-scale agricultural nature of most of the Bhutanese economy, the use of foreign labor on various large-scale projects, and the only gradual emergence of private enterprise. People are not forced to join any organizations in the country.

At present, protests and demonstrations are prohibited. However, there is a right to assemble provided that it does not contravene the provisions of the civil and criminal court procedure code 2001 and penal code 2004. Under these codes, it is lawful to assemble provided that those assembling do not to engage in violent conduct "deleterious to the public order and tranquility."³¹ Associations of laypeople who raise money for religious institutions are commonplace, and public events are held without any interference. As the majority of Bhutanese do not live in urban centers, large groups of people are unusual apart from during religious festivals or other celebrations.

Recommendations

• Human rights training should be provided to the army and police force on a regular basis.
• New labor laws establishing the rights of workers and duties of employers should be enacted, in particular with regard to preventing discrimination against workers with disabilities and ensuring gender equality.
• The human rights of all people residing within Bhutan, not only those officially recognized as Bhutanese, must be clearly set forth in the new constitution and enforced following its enactment.
• Media and government campaigns should promote public awareness of the problems experienced by children and adults with disabilities, and antidiscrimination laws should be enacted for workers with disabilities.
• Policies should be developed and implemented to enhance women's access to political forums. More research needs to be done into what is preventing Bhutanese women from participating fully as candidates and voters.

Rule of Law – 4.23

A modern code of law was enacted in Bhutan in 1959. These Supreme Laws cover land, marriage, inheritance, weights and measures, and criminal matters. The laws present the first recognizably modern law text in Bhutan. Importantly, in the opening statement they contain a declaration that all Bhutanese are equal before the law, although many Bhutanese feel that there is still an inequality in treatment. For example, some Bhutanese have complained about cases settled by judges who are connected to a socially more influential party.³² However, it is unclear whether these comments might simply reflect personal dissatisfaction with judicial verdicts. Since their enactment, the Supreme Laws have been modified and separate acts based on the original chapters of the Supreme Laws passed.

Government records indicate that the home ministry used to interfere with the High Court on a regular basis. However, during the last 12 years, the High Court has asserted its independence, notably in the acquittal of five Southern Bhutanese suspected of being "anti-nationals" (terrorists): The decision was opposed by the home ministry, but the High Court emphasized the correctness of the acquittals.³³ The separation of powers was reaffirmed in Section 2 of the civil and criminal court procedure code 2001 and re-emphasized at the beginning of the 80th session of the National Assembly in 2002.

The judges at district and High Court level are free from interference by both the executive and the legislature. The National Assembly does have the right to ask the High Court to send a representative to explain the latter's draft legislation. Recently, the chief justice appeared before the National Assembly to explain and clarify aspects of the draft penal code, which was under debate. As the legislative body, the National Assembly has the remit to scrutinize all legislation, and the High Court must comply with its decisions. The National Assembly discusses judicial practices, notably sentencing policies, but only on a consultative basis.³⁴ For example, in some cases in which the death penalty was mandated by law, many representatives called for the death penalty to be used, but the High Court maintained its practice of passing life sentences. On March 20, 2004, the king abolished the death penalty.

The gups and chimis are responsible for communicating the resolutions of the National Assembly and new laws to their constituents. In a recent initiative, district court judges have started to conduct educational tours of their districts in an attempt to ensure that ordinary, remote villagers are aware of how the contemporary legal system operates. The response to these tours has been very positive. However, it is unclear how successful this process is in practice. The volume of legislation has significantly increased, and other methods of informing the people at the local level are required to ensure that all people are able to understand the new laws affecting them and how to use those laws as required.

In September 2003, a National Judicial Commission was established to coordinate legislation and judicial appointments. Accordingly, judicial appointments are confirmed by the king based on the recommendation of the chief justice and the National Judicial Commission. Appointment and promotion are based on ability rather than on length of service or social connections. Legal education in Bhutan has significantly developed over the past 12 years.

Previously, judges were typically trained by working as bench clerks before being appointed. The lack of formal legal education was noted by senior members of the judiciary as a major drawback to the development of an efficient and, more important, independent judiciary. As a result, a National Legal Course was established in 1994. Since 1994, 74 young lawyers with LLB and National Legal Course certificates have graduated and entered the judiciary and various government ministries. A number of the young lawyers have undertaken advanced studies abroad. This young cadre of lawyers is enabling the judiciary to overcome public misgivings regarding the independence of the courts and the quality of justice being provided by the courts.

During the 1990s, the High Court established itself as fully independent of the executive; this marks one of the main steps toward the current process of political transformation in Bhutan. However, as stated in the civil and criminal court procedure code 2001, "any party having fully exhausted the judicial appeal process and still aggrieved by the decision of the Court may appeal to His Majesty." The retention of the traditional right of appeal to the king is important for maintaining continuity in tradition and acts as a reminder of the pivotal role of the monarchy in Bhutan, even as it is transformed into a constitutional monarchy. All appeals are heard by the Royal Advisory Council, which examines cases on behalf of the monarch. The Royal Advisory Council has limited powers in order to preserve the independence of the High Court.³⁵

Contrary to what some writers suggest, rules and court procedures have been in place since the inception of the contemporary legal system in the 1960s, and the civil and criminal court procedure code 2001 represents recognition of the importance of constantly monitoring and amending procedural rules as required.³⁶ Among its detailed provisions are a clear statement of the presumption of innocence until proven guilty, the right to a jabmi (independent legal counsel), and a reiteration of the opening section of the Supreme Laws that all Bhutanese, irrespective of rank and status, will be treated equally by the court.³⁷ Legal aid is provided to those requiring it. The monitoring of procedures appears to be working well.³⁸ However, in some instances litigants feel that the court did not treat them fairly or equally.³⁹ There remain traces of hesitancy about engaging in formal court procedures, in part based on a lingering mistrust of officials in general. A draft evidence bill is pending that will set out in more detail the rules of evidence to be applied in the courts. Ordinary Bhutanese remain ill-informed of their current rights, the national laws, and the operation of the court system. However, sections of Bhutanese society have resorted to the courts recently to challenge policies of, for example, the City Corporation of Thimphu and its land-restructuring policies for the capital.

At present, although one can purchase copies of some of the current legislation, not all legislation is readily available. Copies of the laws are provided to all gups, but it is not clear how able the gups are to interpret the laws and thereby provide advice to ordinary villagers. Some analysts have raised doubts about the literacy of gup and mangmi (assistant to the gup).⁴⁰

The Office of Legal Affairs was established in 2000. In effect, this office acts on behalf of the Bhutanese state in civil and criminal matters. It is separate from the High Court and, more important, from the ministry for home affairs. One area that the office is actively tackling is public corruption, as demonstrated in the recent election bribery case in Chukha (see "Accountability and Public Voice"). However, the office is understaffed and requires more trained prosecutors.

The police and military do not interfere in the political process. However, the Royal Bhutan Police still remain under the supervision of the armed forces, and it is far from clear how effective civilian state control is of the military.⁴¹ Although it is difficult to obtain information from both the military (army) and police about incidents concerning internal discipline and possible abuse by officers, reports of abuses do appear periodically in the national newspaper.⁴²

Private ownership of land is generally respected. During the National Assembly sessions in both 2003 and 2004, debates arose concerning discrepancies in land holdings as revealed by a more accurate cadastral survey still being completed. Using the current land-surveying techniques, a significant percentage of holdings have been found to be larger than what was recorded on land titles based on the previous survey. There was deep concern that the government would repossess the excess land (under the Land Act 1979 the maximum landholding is 25 acres). However, the assembly accepted a five-point proposal submitted by the cabinet under which a payment for "genuine excess" can be made up to June 30, 2007. No details are provided as to how genuine excess will be demonstrated.⁴³

Many Bhutanese are either receiving grants of land from the government or acquiring land by private purchase, particularly in the agriculturally more productive southern districts, notably Gelephu. In part this highlights the increased mobility of the Bhutanese population, allowing them to leave their original settlements and pursue new lives and careers in other parts of the country. However, concerns have been expressed that it will be difficult for refugees returning under the terms of the Joint Verification Process to reclaim their former property if it has been transferred to a new owner. It is unclear whether substitute land of equivalent value will be provided in the event that the original holdings have been reallocated.

Recommendations

• Wider education of the general public, not only of local and district level officials, about the legal system and individual rights under law should take place.
• The public should have wider access to legal texts through government offices and district courts.
• The army and police force should be made accountable to the civilian government by being placed under the home ministry.

Anticorruption and Transparency – 3.34

The Bhutanese government is actively streamlining its business and commercial regulations and registration requirements using forms that are available online. However, ordinary Bhutanese find many of the regulations confusing and the processes cumbersome and time-consuming. The economy is heavily controlled by the government, although this should be understood as reflecting the state-led process of modernization since the 1960s.

The state is seeking to encourage the development of private enterprise, in part in recognition of the need to generate wider employment opportunities for the growing educated population. Foreign aid and overseas assistance constitute a significant percentage of the Bhutanese government's own budget and fund many development and social welfare programs run mainly by the government. These funds are, according to aid providers, well managed and carefully administered by the government. Public disclosure of the interests of public officials is limited and is not subject to media scrutiny. No list of interests or income is available for either members of the executive or the National Assembly. Although the state seeks to prevent conflicts of interest in the private sector, it is generally recognized that conflicts do exist.

The auditing provisions that review the spending of government funds are clearly directed at preventing the misappropriation of funds by government officials, as well as reprimanding those who fail to perform their duties properly. The Royal Audit Commission and the auditor general exercise very strong scrutiny of public sector financial management, raising concerns over weaknesses and making recommendations for their remedy. In the "Auditor General's Advisory Series 2003," he directly draws attention to everything from minor oversights to gross irregularities, which the relevant ministry or public body is instructed to address. Furthermore, the advisory contains critical comments on the failure by various ministries and even the cabinet to follow correct tendering procedures. The Royal Audit Authority also urges "that where the instances of lapses are considerable" instant administrative or disciplinary actions be taken "for the overall national interest."⁴⁴ Penalties are imposed for noncompliance with reporting and other requirements. Internal audits are increasingly effective as indicated by the downward trend in fiscal irregularities. Project accounting and financial management are improving gradually, although at present skilled chartered accountants are reported to be in short supply in Bhutan.⁴⁵

Allegations of corruption by government officials are investigated and prosecuted without prejudice. The Office of Legal Affairs is responsible for investigating and prosecuting those officials charged with corruption. Press reports reveal a strong determination by the government and the judiciary to send out a clear message that corruption by public officials will be taken seriously and will be prosecuted. However, although the media do report allegations of corruption, media debate is limited. After the recent royal advisory council elections, the Chukha district court sentenced 16 people to prison for bribery.⁴⁶ Karma Dorji, a businessman who stood for election, publicly declared that he paid 12 members of the Dzongkhag Development Committee 5,000 Nu ($110) each to vote for him. Those sentenced included three private business men, four gups (and one former gup), five mangmi, and one National Assembly representative. The sentences were upheld on appeal by the High Court of Justice.⁴⁷

The apparent acceptability of bribery in the Chukha case has worrying implications. Although corruption is not endemic in Bhutan in comparison to other countries in the region, the issue does deeply concern government officials, the judiciary, and ordinary citizens. It is difficult to distinguish between popular myths of corruption and actual acts of corruption. Those who discussed the Chukha verdict believed that the verdict was just and appropriate, while some Bhutanese suggested that payments by potential candidates were not unusual. Indeed, it has been suggested that bribery is commonplace in the tender award system.⁴⁸ Accordingly, the Bhutanese authorities are preparing a prevention of corruption bill that will specifically address public corruption. Currently, whistleblowers have no specific legal protection. However, the Office of Legal Affairs does investigate all cases of bribery and corruption reported to it.

Access to government information is gradually improving, especially as Web sites are developed and information made available through them. However, at present it remains quite difficult to gain access to a full range of information on government policies, audits, and expenditures. The legislature has limited control over the budget-setting process of the executive, although National Assembly members do challenge the budget. A lack of skilled personnel makes it difficult to ensure that the budget-making process is clear and that government accounts are published in a timely fashion. There is a tendering process, with advertisements appearing in Kuensel and the necessary documentation available on a Web site. However, as the auditor general notes, lapses have occurred in the tendering process that need to be addressed.

Education is free from corruption, notably the payment of bribes for good grades, as the examination board is located in India and the examination papers are marked outside the country. Although competition for entry to certain senior high schools in the country is now increasing, there are no reports of bribery to gain admission.

Recommendations

• Public access to routine documents, including draft legislation, should be enhanced through their provision either to all gups or to local government offices.
• Civil service salaries should be increased to minimize the possible temptation to accept or seek bribes.
• The contract tendering process should be simplified and strengthened. The process of award should be transparent to discourage corruption.
• Additional skilled financial auditors should be trained to further strengthen the Royal Audit Authority.

Notes

1 The title Zhabdrung literally means "at the feet of" or "in the presence of" and is the title given to the lineage of spiritual rulers of Bhutan.

2 Driglam namzha is often referred to as a dress code and is "the path to maintain harmonious behavior" (Driglam Namzha [Bhutanese etiquette]: A Manual [Thimphu: National Library of Bhutan, 1999]). It includes various elements: observing religious practices; conducting certain ceremonies linked to Bhutanese national identity; maintaining trust and respect; proper behavior in the presence of superiors; and how to eat, walk and present oneself in society; as well as the appropriate form of dress for visiting public offices and temples. See also Dasho Khadro, dPal ldan 'Brug pa'i khrims kyi lhan khag nang rgyun skyong 'bad dgo pa'i sgrig lam [The Code of Conduct to Be Diligently Maintained in the Court of Justice of the Glorious Drukpa] (Thimphu: Royal High Court of Justice, 1997). Karma Phuntsho, a Bhutanese Buddhist scholar, presents a short critique of driglam namzha in his article "Echoes of Ancient Ethos: Reflections on Some Popular Bhutanese Social Themes," in K. Ura and S. Kinga, eds., The Spider and the Piglet (Thimphu: Centre of Bhutan Studies, 2004), 564-80.

3 "His Majesty presents the draft Constitution to the lhengye zhungtsho," Kuensel, 27 November 2004, http://www.kuenselonline.com/article.php?sid=4745.

4 Constitution Drafting Committee, "Draft Constitution of the Kingdom of Bhutan," 2005, http://www.constitution.bt/draft_constitution_en.pdf

5 Karma Ura, The First Universal Suffrage Election at County (Gewog) Level in Bhutan (Chiba: Institute of Developing Economies, discussion paper, 2004). Also Karma Ura, Bureaucracy and Peasantry in Decentralization in Bhutan (Chiba: Institute of Developing Economies, discussion paper, December 2004).

6 A fuller discussion of the causes of the refugee issue is beyond the scope of this paper. For various perspectives on this issue see M. Hutt, Bhutan: Perspectives on Conflict and Dissent (Gartmore: Kiscadale Press, 1994; in particular, the articles by Jigme Thinley and Kinley Dorji, which present the Bhutanese perspective on the issue) and M. Hutt, Unbecoming Citizens: Culture, nationhood and the flight of refugees from Bhutan (Delhi: Oxford University Press, 2003).

7 C. Hainzl, The Legal System of Bhutan: A Descriptive Analysis (Vienna: Ludwig Boltzmann Institute for Human Rights, 1998), 9; and "Bhutan Civics" (Thimphu: Royal Government of Bhutan [RGOB], 1999), 44-45.

8 T. Mathou, Bhoutan: Dernier Royaume Boudhhiste de l'Himalaya (Paris: Kailash Editions, 1998), 187.

9 T. Mathou, "Bhutan: Political Reform in a Buddhist Monarchy" Journal of Bhutan Studies, 1 (1): 1999, 114-44.

10 Ura, The First Universal; Ura, Bureaucracy and Peasantry in Decentralization in Bhutan.

11 Karma Ura, The First Universal (2004), has provided a detailed consideration of the 2002 gup elections with recommendations that should be carefully considered by the Election Authority once it is functioning.

12 Enhancing Good Governance: Promoting Efficiency, Transparency and Accountability for Gross National Happiness (Thimphu: RGOB, 1999).

13 These were some of the examples provided during various conversations with a range of Bhutanese during a recent visit to Bhutan.

14 "Bhutanese Perspective on Civil Society," Kuensel, 13 January 2005, http://www.kuenselonline.com/article.php?sid=4929.

15 "Bhutan and the European Community Co-operation Strategy 2002-2006" (Brussels: European Commission, 21 March 2003), 9, http://europa.eu.int/comm/external_relations/bhutan/csp/index.htm.

16 Bhutan – 2004 Annual Report (Paris: Reporters Without Borders, 2004), http://www.rsf.fr/article.php3?id_article=10153&var_recherche=Bhutan.

17 Karma Phuntsho, "Echoes of Ancient Ethos: Reflections on some popular Bhutanese social themes," in K. Ura and S. Kinga, eds., The Spider and the Piglet (Thimphu: Centre of Bhutan Studies, 2004), 564-80.

18 "Bhutan" (London and New York: Amnesty International [AI], 2004), http://web.amnesty.org/report2004/btn-summary-eng.

19 Author interviews with women in Bhutan between 2001 and 2004.

20 "Gender equality guaranteed,"Kuensel, 8 May 2004, http://www.kuenselonline.com/article.php?sid=4039.

21 RENEW, Respect Educate Nurture Empower Women (Thimphu: Kuensel Corporation, 2004), 4.

22 Karma Ura, The First Universal (2004), 12.

23 See M. Hutt, Unbecoming Citizens, 101.

24 Author interviews; F. Pommaret, "Himalaya: la colonisation des ames," in C. B. Lavenir, ed., Missions: Cahiers de Mediologie.(Paris: Fayard, 2004), 140-47.

25 See "Bhutan" (AI, 2004), http://web.amnesty.org/report2004/btn-summary-eng and earlier reports.

26 For greater detail see F. Pommaret, "Ethnic Mosaic: Peoples of Bhutan," in C. Schiklegruber and F. Pommaret, eds., Bhutan: Mountain Fortress of the Gods (London: Serindia, 1997), 43-59. On the linguistic groups of Bhutan see G. Van Driem, Dzongkha (Leiden: Research School of Asian, African and Amerindian Studies [CNWS], 1998), ch. 1.

27 See Jigme Thinley, "A kingdom besieged," and Kinley Dorji, "Bhutan's Current Crisis: A View from Thimphu," in M. Hutt, ed., Bhutan: Perspectives (1994), 43-76 and 77-95.

28 For a discussion of the complex background leading up to the flight of the refugees and the various perspectives, see Jigme Thinley, "A kingdom besieged," and Kinley Dorji, "Bhutan's Current Crisis: A View from Thimphu," in M. Hutt, ed., Bhutan: Perspectives (1994), 43-76 and 77-95. The refugees' perspective is set out in M. Hutt (2003) Unbecoming Citizens.

29 "Bhutan" (AI, 2004), http://web.amnesty.org/report2004/btn-summary-eng.

30 "Bhutanese JVT officials attacked in Jhapa," Kuensel, 23 December 2003, http://www.kuenselonline.com/article.php?sid=3572.

31 Penal Code 2004, Sec. 436, based on the National Security Act 1992, Sec 12.

32 Kuenselonline "From the Readers" has threads entitled "Drangpon: a change in name only" and "Justice delayed is justice denied," http://kuenselonline.com/phorum/read.php?f=2&i=30982 and http://kuenselonline.com/phorum/read.php?f=2&i=30867.

33 B. Shaw, "Aspects of the 'Southern Problem' and Nation-Building in Bhutan," in M. Hutt, ed., Bhutan: Perspectives (1994), 141-64, 149.

34 Death Penalty News (AI Index: ACT 53/001/2004, 1 June 2004), http://web.amnesty.org/library/Index/ENGACT530012004.

35 C. Hainzl, The Legal System of Bhutan (1998).

36 See, for example, A. Sinha, Himalayan Kingdom Bhutan: Tradition, Transition and Transformation (New Delhi: Indus Publishing Company, 2001).

37 Civil and Criminal Procedure Code 2001, Sections 3-7, 32-33. Supreme Laws refer to the Thrimzhung Chenmo, the first modern law code, in 17 chapters, passed by the National Assembly in 1959.

38 Author interviews with ordinary Bhutanese, police, and lawyers.

39 See Strategy for Danish Development Co-operation, http://www.um.dk/Publikationer/Danida/English/CountriesAndRegions/Bhutan.bhutan.De.

40 Karma Ura, The First Universal (2004).

41 Some suggest that the military and police are under the home ministry. However, various diagrams of the Bhutanese system of government depict the armed forces (which include the Royal Bhutan Police) as separate. Enhancing good governance (RGOB, 1990); "Window on Bhutan" (RGOB 2000, 2002).

42 "Officer shot dead by constable," Kuensel, 4 September 2004, 1.

43 "Assembly endorses excess land rule proposed by lhengye zhungtso," Kuensel, 25 July 2004, http://kuenselonline.com/article.php?sid=3100.

44 "Auditor General's Advisory Series 2003," (RGOB), http://www.raa.gov.bt/contents/papers/agadvisory-series2003.htm.

45 "Strengthening financial auditing," Kuensel, 5 July 2004, http://www.kuenselonline.com/article.php?sid=4244.

46 For further details, see "16 Prosecuted for Bribery in Chukha Election," Kuensel, 22 May 2004, http://www.kuenselonline.com/article.php?sid=4090; "16 Imprisoned for Three to Five Years in Chukha," Kuensel, 5 June 2004, http://www.kuenselonline.com/article.php?sid=4140.

47 "Chukha judgement upheld," Kuensel, 7 August 2004, http://www.kuenselonline.com/article.php?sid=4367.

48 A recent thread on Kuenselonline entitled "corruption" reflects the general concern about corruption, whether real or imagined; see http://www.kuenselonline.com/phorum/read.php?f=2&i=31742&T=31742.