Two sides of the Bhutanese judiciary
The Bhutanese judiciary came into limelight with two cases that indicates the future course of justice delivery in the country. In one case, the judiciary received appreciation while from other it received such a nasty criticism that appreciation received in first case faded away.
The verdict given on the first case related to interpretation of the constitution by the High Court, the country’s only appellate court, will have far reaching impact on defining democracy and incorporating democratic culture in Bhutan.
The democracy enthusiast, the verdict is judiciary’s one step forward in institutionalising the democratic system, where it has, to some details, interpreted powers and procedures of the executive, legislative and local government on imposing tax and money bills.
The fight between the government and the two-member opposition ended with Supreme Court ruling, in line with High Court verdict, that government cannot impose taxes bypassing legislature. Government’s appeal against the verdict given by High Court was turned down by this apex court as well.
Prime Minister Jigmi Thinley horridly reacted that the judiciary undermined democracy and hinted at back tracking from the achieving targeted development goals for which he cited reasons that government might not be able to generate enough revenue for development activities when the very means is squashed by the judiciary.
The essence of the court does not speak about banning government from imposing tax rather it has asked the government to go through proper channel – seek approval from the parliament in such important decisions, regarded as better approach in democratic system. The court verdict only states that government did not comply with the proper legislative process and denied the opposition the right to vote, as provided under the Constitution. While answering to the government argument, the court has clarified that the opposition has not intervened authority of the executive to impose tax but has objected to the executive’s non-compliance to procedure in raising and implementing tax.
The court defined the issue of tax as money bill and ruled in favour of the National Council to have its say on such bills including budget, though National Assembly will have the right to accept or reject council’s recommendations. For last three years, the government passed the budget denying any opportunity for NC to have its say. The government feared that the upper house might put obstacle in endorsing budget. Budget being appropriation bill must now be introduced to lower house NA, discussed in the upper house NC and receive Royal Assent for implementation.
The court verdict explained the constitution that except for fees and levies imposed or altered by the budgetary bodies for services provided to the public all other fees can be imposed or altered only by parliament.
The two houses were at odd over the issue of passing national budget since inception. An Indian lawyer, who provided expertise while drafting the country’s constitution, failed to mend the fences with his explanation last year. The government had almost ignored the upper house – the reason behind being apolitical.
The government had attempted similar attack on local government – which is apolitical too. The verdict linked the issue with authority of the local government and directed to amend the Local Government Act.
The verdict turned out to be bone-swallowing bone for PM Thinley. Though PM accepted the court ruling, he created enough rooms for excuse if the government is unable to fulfil the assurances given to the people. It was his non-compliance with the democratic practice and practice that he questioned his own morale on leading the government while the opposition was asking resignation from finance minister only.
The PM was more irritated to the opposition People’s Democratic Party (DPD) than to the judiciary for the case being initiated by the opposition party after failing to hear anything from the government despite repeated calls in parliament sessions. PM regarded the initiation of the opposition as a measure to be more populist. He has indicated of resigning if the court ruling comes to be an obstacle for him to serve the people as promised.
The government has not spoken anything about refund. The government will now have to refund all taxes collected after it revised sales and import duty on vehicles in July last year.
Other important implication of the court ruling will be on the legitimacy of the laws formulated before the promulgation of the constitution. The court interpreted that all provisions of laws made before 2008 and inconsistent with the constitution cannot form the basis for rule. For instance, the court verdict said, sections of the Public Finance Act 2007 overrules inconsistent sections in the Sales Customs and Excise Act of 2000, which has been the basis of government to revise taxes.
On the other hand, imposition of three-year jail term to a monk for carrying tobacco worth Nu 120, has almost exposed the harshness of Bhutanese judiciary system. The opposition party has reported that the monk was not given a fair trial – he was unable to hire a lawyer and government did not provide him lawyer to defend himself. The very case is the vivid example to reflect if anyone serving jail term in Bhutan had enough opportunity to defend themselves in the court.
Most lawyers get government job who in turn rarely fight cases that are against the government. The inability of the court to provide with acceptable judgement created opportunity for citizens in Bhutan to start public campaign in favour of the monk. Hundreds of supporters have joined the facebook page created to revise in court verdict.
Both the cases have far reaching implications in delivering justice in democratic Bhutan in coming years. It is the matter of public consciousness and acceptable of the executive to abide by democratic culture, values.
Further reading on the issue
But what if it does? in Kuensel
Why the govt. shouldn’t resign in Kuensel
Touching but a Law is a Law: PM in The Journalist
Ban on import of vehicles lifted in BBS
The Opposition Maintains its Stance in The Journalist
PM Justifies the Govt’s Actions in The Journalist