Calling concerned citizens

Sonam Tshering is 23 years old. He is charged with smuggling tobacco. And, if convicted, he could be jailed for 3 to 5 years.

If Sonam Tshering did indeed smuggle tobacco, he should be sent to jail. That’s what the Tobacco Control Act sanctions. The laws of the land must prevail.

But think about this law. Think about how draconian the Tobacco Control Act really is. Sonam Tshering could go to jail for 3 years for possessing four packs of Baba chewing tobacco. Each pack has a dozen packets. So he had a total of 48 packets of chewing tobacco.

Each packet of Baba has 10 grams of tobacco. And carries a maximum retail price of Rs 2 per packet. So he was caught with 480 grams of tobacco that has a street value of Rs 96 in India.

Sonam Tshering could be sent to jail for 3 to 5 years for possessing Nu 96 worth of tobacco. Nu 96 is less than the current daily minimum wage.

As of today, Sonam Tshering has already spent three weeks in detention.

I went to see Sonam at the detention center. He was confused. He was distraught. And he was scared. Very scared.

Sonam is being charged for smuggling tobacco. The Thimphu District Court has already begun to hear his case. But he does not have a lawyer. Without one, he will not be able to argue that he was not smuggling tobacco; that 480 grams of tobacco could not be worth much even in a black market; and that he had purchased the tobacco for self-consumption.

Sonam Tshering possessed tobacco. That is against the law. So he should be punished.

But he shouldn’t be sent to jail for 3 to 5 years for possessing a mere 480 grams of chewing tobacco worth less than Nu 100. That would be wrong. Even if it is legally correct, it would still be wrong … and dangerous.

So I’m calling for lawyers. Concerned citizens who will represent Sonam Tshering and somehow convince the courts to dismiss the case, or, at the very least, to lighten the sentence.

And I’m calling for volunteers. I’m calling for concerned citizens who will lead a movement to amend the Tobacco Control Act.

Appealling justice

Yesterday, after learning that the government was appealing the High Court’s verdict, Bhutan Today sent me some questions. With their permission, I’m reproducing their questions and my answers here.

What do you think about the government appealing to the Supreme Court?

I am pleased that the government has decided to appeal to the Supreme Court, as they were obviously not satisfied with the High Court’s verdict. Remember that the government has the right to appeal to the Supreme Court.

As far as the opposition party is concerned, we respect the government’s decision to appeal, and will submit to the judicial process completely.

Do you think the High Court’s verdict has failed to set a precedence on constitutional cases for the future?

The High Court has not failed in any way. They ordered a verdict after giving the case careful and considerable thought. The fact that the government is appealing to the Supreme Court does not diminish, in any way or manner, the excellent work done by the High Court.

How hopeful are you of what the Supreme Court might pass as verdict? Do you think it will favor the government?

I have full confidence in the Judiciary. And I am absolutely certain that the Judiciary will fulfill their Constitutional mandate to “safeguard, uphold, and administer Justice fairly and independently without fear, favour, or undue delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access to Justice.”

Obviously, we cannot predict what the final verdict will be. But regardless of how Supreme Court rules, you can rest assured that the opposition party will accept it without any question.

What is the long term implication of this case incase the Supreme Court intrepretation favors the government?

The fact that the government is appealing to the Supreme Court is good. It will bring proper closure to our first constitutional case. After all, the Supreme Court is the guardian of the Constitution, and the final authority on its implementation.

We will argue the case to the very best of our ability, but we will accept, and abide by, the Supreme Court’s final verdict. Regardless of how the Supreme Court rules, I am confident that the long term interests country and the people will be protected.

Felicitating the Judiciary

The High Court has rendered judgment on Bhutan’s first constitutional case. The esteemed Court ruled that the taxes imposed by the government earlier this year are unlawful, and ordered the government to refund those taxes. The Court also issued an injunction preventing the government from raising taxes without the Parliament’s approval.

The High Court’s landmark verdict has been hailed as a victory for the opposition party. And the opposition has received numerous congratulatory messages.

We are duly humbled. And grateful for the good wishes.

But, the felicitations are misguided.

The Court’s verdict, in fact, is not a victory for the opposition party. Nor is it a loss for the government. We must see the verdict for what it is: the High Court’s interpretation (through considerable hard work and expertise, no doubt) of the Constitution. And that interpretation is not yet binding – it can still be appealed to the Supreme Court.

But regardless of whether the High Court’s verdict is eventually upheld, revised or reversed, and regardless of whether existing laws are amended or not, what will now emerge is a clear understanding of how taxes can be raised. And that understanding will be good for all the parties involved – the government, the ruling party, the opposition, the National Council, and, most importantly, the taxpayer.

At a broader level, the High Court’s verdict is being applauded as evidence of the Judiciary’s independence and, therefore, a healthy democracy. Obviously, the verdict is important for the case. But what’s much more important are the democratic checks and balances that were set in motion almost three months ago when the High Court accepted and started considering the Constitutional Case.

So regardless of the eventual verdict, felicitations are really due to the Judiciary.

Royal decree

I see two important points in His Majesty the King’s kasho instituting the Royal Commission and outlining the process to establish the first Supreme Court of Bhutan.

The first is that the delay in establishing the Supreme Court was deliberate. It was meant to make the “… new democratic institutions learn to work together in harmony, and with unity of purpose, in the interest of the Nation and People.”

The second is that, His Majesty the King has devolved his authority and created an even more transparent process of establishing the Supreme Court. Though Article 21, Section 4 of the Constitution authorizes the Druk Gyalpo to appoint the Chief Justice of Bhutan in consultation with the National Judicial Commission, His Majesty’s kasho empowers the Royal Commission to recommend “…one person to assume the post of the Chief Justice of the Supreme Court.”

Protecting our judiciary

Wanted: more protection

Well protected?

On 9 June, Kuensel reported that the selection of the new DDC secretary may have violated the RCSC’s position classification system. If this is the case, RCSC should look into it.

I have no problem about a member of the judiciary applying of a civil service post, and the RCSC accepting that person’s candidature, or selecting that person. No problem that is, as long as both the Judiciary’s rules and the RCSC’s rules are followed.

So the RCSC may wish to ensure that due process was followed.

RCSC should also consider if it has infringed on the independence of the Judiciary. Earlier the RCSC had issued a “transfer and appointment order” transferring a senior judge out of the judiciary and appointing him as a secretary in the civil service. But, according to the Constitution and related laws, RCSC does not have administrative powers on the Judiciary. So it cannot order the transfer of a judge. Doing so would compromise the independence of the Judiciary. And that, put simply, is very dangerous.

So the RCSC must retract its “order”. And apologize.

Supremacy of law

Every now and then a reader will leave a comment that is completely unrelated to and has nothing to do with a topic being discussed. This is okay. After all, one should be allowed to raise important issues even though they are not being discussed here. So I try to acknowledge these out-of-the-blue comments.

Deo recently made one such comment. This is what deo wrote in CDG unconstitutional: “OL, since you seem to have an opinion on everything, and has become a self-appointed legal expert, what is your take on the Jemina case? In your opinion, who is correct – ACC or high court? Both cannot be right.”

I can’t say that I have an opinion on everything. But I do admit to having opinions on some things, including issues concerning the law though I’m no legal expert. And I hope that my opinions matter, even if you disagree with them. As far as your opinions are concerned – I’ve said this before and I’ll say it again – I take them seriously. They matter.

Now about the Bjemina case: who’s correct, ACC or High Court? The High Court, without a doubt. After all, our courts are the supreme authority to interpret and apply the laws of our land. We may not agree with their interpretation, but we are bound to accept them. That is what the rule of law is about.

Article 21.1 of the Constitution: The Judiciary shall safeguard, uphold, and administer Justice fairly and independently without fear, favour, or undue delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access to Justice.

So as long as the High Court is faithful to the Constitution – and as far as I know, we have no reason to doubt that – we must accept that they are correct. And that their interpretation of the law prevails over everybody else’s.

But what if our courts, guardians of the law, themselves choose to deliberately ignore the law? Or break the law? Article 32 of the Constitution outlines the procedure to impeach the Chief Justices and Drangpons of the Supreme Court and the High Court.

Back to the Bjemina case: I don’t know the details of the case, and I haven’t studied the relevant laws. So my trust and confidence in the Judiciary instinctively makes me believe that they are correct. But I suspect that Deo feels otherwise. It would be good to know why.

Supreme excuse

Bhutan Observer, Bhutan Times and Kuensel are doing a pretty good job of keeping the controversy over the appointment of the Bhutan Post CEO alive. If it were not for them, the Cabinet’s tentative response to ACC’s investigation and report would have gone unquestioned, and the public would be none the wiser.

But now what? Constitutional experts argue that only the Supreme Court, as the final authority on the interpretation of the Constitution, can decide if the cabinet’s action on the ACC’s report, or lack thereof, is unconstitutional. And that the differences between the ACC and the Cabinet cannot be resolved until the Supreme Court is established. So there seems to be a growing consensus that nothing much can be done for now.

The experts are no doubt, correct. Except that ACC’s corruption charges, if any, are against a few individuals, not against the Cabinet. So those charges, if any, should be dispatched to the District Court.

Otherwise, with time, the gate will eventually close.