Assembly

The 8^th Session of the Parliament concluded last Friday. It was easily our shortest session: we started on 4 January and ended, barely 12 working days later, on 20 January.

But the 8^th session was historic. Her Majesty the Queen graced both the opening and closing ceremonies; and the members of Parliament got to offer the Oath of Allegiance to the Throne.

Plus, the joint sitting of the Parliament amended the Sales Tax, Customs and Excise Act and the Public Finance Act to align them in accordance with the Supreme Court’s interpretation of the Constitution which had been rendered in the first constitutional case (Incidentally, the amendments had actually been proposed by the ruling party in the 6^th session to give the government sweeping powers to introduce, increase and revise all taxes); the Parliament amended the Tobacco Control Act, responding to public outcry that the law was flawed and draconian; the National Council passed the first-ever private bill, the National Flag Bill, introduced by NC MP from Wangduephodrang; and the Speaker invoked special powers granted to him in the Legislative Procedure Rules to block the Parliament from voting on the Election (Amendment) Bill that mainly sought to permit state funding for political parties.

The 8^th session was also quite productive. In addition to what I’ve already mentioned, the National Assembly passed five bills (Consumer Protection Bill, Druk Gyalpo’s Relief Fund Bill, Education City Bill, Disaster Management Bill and University of Medical Sciences Bill) and ratified one international convention (Ramsar Convention on Wetlands); the National Council passed the University of Medical Sciences Bill, the Parliamentary Entitlement (Amendment) Bill, and ratified the Ramsar Convention; the joint sitting passed the Child Adoption Bill; and both houses endorsed the government’s proposal to increase the salaries of tshogpas, and questioned the government on a range of issues.

The 8^th Session was short. But it was productive. A lesson, perhaps, that we should keep our future sessions as tight as possible.

Is state funding for political parties legal? No.

Article 15 Section 4(d) of the Constitution clearly forbids political parties from accepting “… money or any assistance other than those contributions made by its registered members”. That’s why the National Assembly decided almost 4 years ago that state funding for political parties would be unconstitutional. That’s why the Election Commission of Bhutan has called state funding for political parties illegal. And that’s why the Chief Justice of Bhutan has declared that state funding for political parties would go against the “spirit of the Constitution”.

Is state funding for political parties logical? No.

A political party, by definition, is a group of people who share the same ideas on how our country should be governed. These people work together to advance their political beliefs by securing the right to make laws, determine policies, and to run our government.

A political party, therefore, needs people. It needs people to support its ideas. And it needs people to finance the party machinery to advance those ideas. So if a party, any party, cannot draw enough people to support it, that party cannot claim to be a true political party.

You may agree with the ideas of a political party. Or you may not. If you do, you may wish to support that party, you may wish to become a member of that party, and you may wish to contribute financially to that party. But if you don’t agree to those ideas, you may wish to support an alternate political party. Or you may wish to stay neutral.

That decision is yours. That decision is your right. You may chose to support one party, or another, or you may chose to stay neutral. I repeat: that decision is your right. And what state funding for political parties threatens to do is infringe on that right. State funding would mean that your tax money will go to support all political parties; whether or not you want to support them, whether or not you agree with their ideas, your tax money will go towards propping them up.

To make matters worse, state funding for political parties would short-circuit the important relationship between political parties and the people. On the one hand, state funding would permit a political party to exist even if its ideas are not generally supported. On the other hand, state funding would mean that a political party does not have to be accountable to people. Instead that political party would essentially become, and should be required to operate as, a government department!

Is state funding for political parties needed? No.

Political parties are vital for democracy, any democracy. And in most democratic countries, political parties play an active role in almost all spheres of life.

Political parties are essential for our democracy too. But our democracy, as defined by the Constitution, purposely limits the scope and role of political parties. That’s why the National Council is nonpartisan; its members cannot belong to a political party. That’s why local governments are nonpartisan; members of dzongkhag, gewog and thromde governments cannot belong to a political party. That’s why civil servants are apolitical. That’s why members of religious organisations and the armed forces cannot belong to a political party. And that’s why only two parties can be represented in the National Assembly at any given time.

All this seems to have been done on purpose, to limit the role and scope of political parties in Bhutan. Why? I don’t know. But I am sure that the drafters of our Constitution knew what they were doing, and what they did, they did for the best interests of the country and the people.

Perhaps they wanted to prevent partisan politics from dividing our small, tight-knit society. Perhaps they wanted to prevent divisive politics from dominating life in our rural communities. Perhaps they wanted to allow the general public to be able to have trust and confidence in local governments and the civil service regardless of which party comes to power. Perhaps they didn’t want political parties to become too powerful. I don’t know.

What I do know is that, because of the Constitution’s provisions, political parties have very little work between elections. As such political parties don’t need offices throughout the country. Yes, political parties must remain accessible to the people, but they must not risk interfering in the business of local government or in the work of the executive. That’s why political parties do not need to maintain – they should not maintain – a strong presence in the gewogs or in the dzongkhags.

All this means that political parties do not really need that much money. Income from registration fees, membership fees and voluntary contributions should be more than enough to support the operations of the party, as long as the party has dedicated members, and as long as the party lives within its means.

Is state funding legal? No.
Is it logical? No.
Is it needed? No.

On the first matter, the Tobacco Control (Amendment) Bill, I’m delighted that the National Council has come through. Their recommendations aim to amend the draconian law to make it sensible and implementable. Naturally, I agree with their recommendations.

The discussions are not going to be easy. They’re going to be difficult. And complicated. If, at the joint sitting, we agree on the National Council’s proposed amendments, the current ban on the sale and purchase of tobacco products will lifted in favour of taxation to reduce tobacco consumption in our country.

If we agree on the National Assembly’s proposed amendments, the current ban on the sale and purchase of tobacco products will continue, but the penalties for breaking the law will be spread according to the quantity of tobacco involved.

But if we do not reach an agreement – that is, if neither proposal, nor one that the joint committee comes up with by tomorrow, is supported by at least two-thirds of the MPs present and voting – the amendment bill will be declared a “dead” bill. And we will be stuck with the current Tobacco Control Act.

Democracy in action. Or democracy inaction. We’ll see tomorrow.

There's hope

The National Assembly has passed the Tobacco Control (Amendment) Bill. 39 MPs voted for the amendment. One MP voted against it. And I abstained.

I believe that the proposed amendments do not adequately address the shortcomings of the Tobacco Control Act. That’s why I didn’t vote for the amendment. But I couldn’t vote against the amendment either, as doing so would amount to supporting the existing Tobacco Control Act. That would be unthinkable. And so I abstained.

Here’s the main difference between the Act and the amendment: while the existing Act condemns all offenders to prison, regardless of the quantity of tobacco involved, the amendment staggers the penalties for illegal possession of tobacco products based on the quantities.

So, for instance, if you’re caught with less than the “permissible quantity” of 200 sticks of cigarettes or 150g of khaini you’ll be let off with a fine, which will be set by the tobacco control board. (Sorry, you won’t get to keep the contraband.)

If you’re caught with more than 200 sticks of cigarettes or 150g of khaini, but less than three times that “permissible quantity”, you’ll be slapped with a misdemeanor. A misdemeanor carries a prison sentence of one to three years. But the sentence is compoundable. So you could pay thrimthue of Nu 36,500 (at today’s wage rates) instead of serving time in jail. But be careful. If you are a civil servant, according to the civil service rules, you’ll lose your job and your benefits if you are found guilt of a misdemeanor.

And if you’re caught with three times the “permissible quantity” – that’s 600 cigarettes or 450g of khaini – you’ll receive a felony of the fourth degree. That means that you’ll be sent to jail for 3 to 5 years. A felony is not compoundable, so you will not be able to pay thrimthue. You will have to serve your jail sentence.

If the amendment sounds better than the current draconian Act, it is. Yet I didn’t I support it. Here’s why:

First, the amendment, like the existing Act, continues to allow people to legally import tobacco. Travelers, and those fortunate to live in bordering towns, can continue to legally import tobacco up to the “permissible quantity”. The way I see it, if we’re going to allow some people to purchase and consume tobacco legally, we should allow other people to do so too.

Second, the amendment, like the existing Act, does not recognize the simple fact that prohibition has never worked and will not work. That’s why a black market quickly (and effectively) established itself in spite of the draconian provisions of the existing Act. That’s why, in the year since the Tobacco Control Act came into effect, many people took their chances despite the stiff sentences in it. Of the many, 84 people got caught. And of them, 39 people have already been sent to jail.

If the amendment goes through, a minority of us will continue to be able to procure and consume tobacco legally. But for the most of us, if we consume tobacco, we will continue to be doing so illegally. That would make us criminals. And because the penalties have now been staggered, expect a bigger black market; expect many more criminals.

There’s no doubt that tobacco consumption goes against our beliefs and our traditions. And there’s absolutely no doubt that tobacco consumption is bad for our health. So we must reduce the amount of tobacco we consume, we must smoke less, and we must chew less khaini.

But I don’t see that happening through the Tobacco Control Act or, for that matter, the proposed amendments. Instead, we should allow the sale of tobacco products. But we should tax the products sufficiently to discourage its indiscriminate consumption. And we should limit the places where tobacco products are sold. We should also set and enforce a sensible minimum age to buy and consume tobacco. And we should make all public places completely tobacco free.

But most importantly, we should educate ourselves about the ills of tobacco consumption. And to educate ourselves meaningfully, all of us – teachers, religious heads, doctors, journalists, businesses, politicians, celebrities, parents, all of us – must work together, hand in hand, to convince ourselves, and then our children, that smoking and chewing khaini may not be worthwhile.

The Tobacco Control (Amendment) Bill is an urgent bill. So it will be discussed in the National Council in the next few days. I remain hopeful that we can correct the excesses of the Tobacco Control Act in a meaningful manner, one that is both logical and implementable.

Formulating government policy to benefit one particular project is never a good idea. There’s simply too much room for conflict of interest, favoritism and corruption.

But the government is not satisfied. They want to bestow even more support to the Education City project. They now want to enact a law specifically designed to benefit this one particular project.

So today, the government introduced the Education City Bill in the National Assembly. They argued that without this legislation the legal framework would not be adequate, that foreign investors would not show up, that international education institutions would not be interested, and that the project would fail.

Without even considering the merits and demerits of the proposed Education City itself, I argued that framing laws around a project must mean that relevant laws are absent; that relevant policies are missing; or that the new law would circumvent existing laws and policies.

If relevant laws are absent, frame them, especially if other similar other projects would require them. If relevant policies are missing, develop them, especially if such projects are a priority for the government. But don’t pass new laws designed to bypass provisions of existing laws or the government’s own policies just for the sake of a single project.

That would not be good governance. And that is putting it very mildly.

The Education City may be a good idea. It may attract foreign investment, it may create jobs, it may become a centre of excellence, and it may strengthen our economy. Or it may be a bad idea. It may become a white elephant, or, worse still, a breeding ground for large scale, low quality education catering to tens of thousands of foreigners.

But good idea or bad, by enacting the Education City Bill, we would make it legal. And that’s a terrible idea.

For king, country and people

The 8^th Session of the Parliament began yesterday. The 8^th session will be remembered as, during the inaugural ceremony, the Members of Parliament took the Oath of Allegiance to His Majesty the King.

I’m posting a (unofficial) translation of the Oath of Allegiance as a reminder of our promise to serve our King, our country and our people to the best of our abilities.

We bow at the feet of the supreme golden throne of the Druk Gyalpo Jigme Khesar Namgyel Wangchuck, the upholder of the Chhoe-sid-nyi of Bhutan.

We, the Members of the First Parliament of Bhutan, hereby affirm our trust and devotion in the sovereignty and unity of Bhutan.

Further, we offer our allegiance to serve the Tsa-Wa-Sum and shoulder our responsibilities to the best of our abilities with sincerity, dedication and impartiality at all times.

Signed on 11^th day of the 11^th Month of Iron Female Rabbit Year corresponding to 4^th January, 2012.

The Oath of Allegiance was administered in accordance with Article 2 Section 5 of the Constitution which states that:

Upon the ascension of the Druk Gyalpo to the Throne, the members of the Royal Family, the members of Parliament and the office holders mentioned in section 19 of this Article shall take an Oath of Allegiance to the Druk Gyalpo.

• Tobacco Control ( Amendment) Bill 2011
• Druk Gyalpo’s Relief Fund Bill 2011
• Disaster Management Bill of Bhutan 2011
• Education City Bill of Bhutan 2011

And here are the bills that the National Assembly and the National Council will discuss in a joint sitting to resolve differences between the two Houses.

• Child Adoption Bill of Bhutan 2011
• Sales Tax, Customs and Excise (Amendment) Bill of Bhutan 2011
• Public Finance (Amendment) Bill of Bhutan 2011
• Election (Amendment) Bill of Bhutan 2011

The bills can be downloaded from the NC and NA websites. Please give me your feedback.

Also, please give me your suggestions on issues that I should consider raising with the government. I’ll raise them during question hour, or, depending on the nature of the issue, propose them as motions.

A senior civil servant said the opposition leader was very emphatic about the severity of the tobacco Act’s penalty that he went to the extent of hiring a lawyer for the first Bhutanese to be convicted under the Act, pro bono.

“He didn’t utter a word when members were deliberating the corruption amendment bill,” she said.

Yes, the senior civil servant is correct when she says that I was “emphatic about the severity of the tobacco Act’s penalty”. Yes, I objected to the excessive penalties for seemingly minor infractions provided in the Act. But I, like most of Bhutan, completely agree with the aim of the Tobacco Control Act, which is to reduce – perhaps even eradicate – the consumption of tobacco in our country.

And yes, the senior civil servant is correct when she says that I “didn’t utter a word” when we deliberated the Anticorruption Bill. I did not speak – either for or against the Bill. But I, like all of Bhutan, completely agree with the aim of the Anticorruption Bill, which is to reduce – hopefully even eradicate – corruption in our country.

Why didn’t I speak? I didn’t because I couldn’t. And I couldn’t, because I was not given the floor on the two occasions that I put my hand up.

The speaker probably did not see me. But had he noticed my hand go up, and had he given me leave to address the Parliament, I too would have argued that the penalties proposed in the Anticorruption Bill were excessive, and I too would have supported the revised penalties.

The senior civil servant seems to insinuate that I should have opposed the revised penalties. I couldn’t. Not because I didn’t get to speak. But because this time, I actually agreed with the majority. Even if I were given floor, I would have just recorded my support for the revised penalties.

That, incidentally, is why I voted “No” for the Tobacco Control Bill, and “Yes” for the revised Anticorruption Bill.

I hope that the senior civil servant in question will now see some consistency in my actions. I do not, and I cannot, oppose for the sake of opposing.

But were the penalties that were originally proposed in the Anticorruption Bill excessive? You decide…

According to the original draft, the penalty for all bribery and embezzlement offences was:

A person guilty of an offence under this section shall, on conviction, be liable to imprisonment for a term not less than five years to not more than nine years.

In other words, almost all offenses were originally categorized as third degree felonies, regardless of the magnitude of offense. So if a person is caught giving a Nu 100 bribe, that person is liable to spend five years in jail. But if a person is caught offering a Nu 13 lakh bribe – or for that matter a Nu 13 million bribe – that person is liable to spend a maximum of nine years in prison.

The penalties did not differentiate between the severity of the offenses. And while the penalties for small offenses were excessive, those for very big offenses were exceptionally lenient.

So the Parliament, in a joint sitting, revised the penalties as:

An offence under this section shall be a misdemeanor or value based sentencing, whichever is higher, subject to maximum of a felony of Second degree if the value of the amounts involved in the crime exceed the total amount of minimum wage at the time of the crime for the period of 35 years or more.

Under the revised penalties, a person caught offering a Nu 100 bribe could be sent to jail for 1 to 3 years. But, on the other hand, a person caught offering a Nu 13 lakh bribe could now be sent to jail for 9 to 15 years, not just between 5 to 9 years as was originally proposed.

The new penalty structure is more reasonable. And it’s more logical. As such, it should be a much more effective weapon in our war against corruption.

That’s why I did not oppose it. And that’s why I voted for it.

I voted against the Bill because it is discriminatory – it favors foreign investors over our own people.

Section 50 of the Bill specifies that a Bhutanese individual cannot own more than 20% of a financial institution’s shares; and that a Bhutanese company cannot own more than 30% of a financial institution’s shares.

But the Bill does not specify the amount of shares a foreign company can own in a financial institution. That has been left up to the Foreign Direct Investment policy. And the present FDI policy allows foreign companies to own as much as 51% of a financial institution.

So basically, the maximum amount of shares Bhutanese individuals and companies can own in a financial institution are clearly defined by law. But the amount of shares that foreign companies can own is not defined by law – instead, it’s left up to a government policy. Today’s policy allows foreign companies to own a lot more shares in a financial institution than what our own companies can own. And tomorrow’s policy could allow foreign companies to own even more shares.

It’s important to specify – clearly specify – the maximum amount of shares that a Bhutanese individual or a company can own in a financial institution. And it’s even more important to clearly specify the maximum amount of shares that a foreign company can own.

Our laws should favour Bhutanese companies over foreign ones. But if, for whatever reason, that’s not possible, both of them – Bhutanese and foreign companies – should be treated equally. Foreign companies should never receive preferential treatment over our own companies.

But that’s exactly what the Financial Services Bill allows.

Foreign investors already have more money, have more expertise, and have more experience. Now with more ownership of our banks, they will, in time, dominate and control our financial sector. That cannot bode well for the security of our economy.

Here’s Section 50 of the Financial Services Bill:

No person shall hold more than the following percentage of interest in shares of a financial institution:

(a)     in case of a Bhutanese individual, 20 percent,

(b)     in case of a Bhutanese company not being a financial institution, 30 percent.

(c)     in case of a Bhutanese company being a financial institution, as per the limit provided under section 53 below, and

(d)     in case of a foreign financial institution, as per the RMA regulations in line with the Foreign Direct Investment Policy.

for broadcasting

Yesterday, members of the National Assembly met to discuss the preliminary agenda for the Assembly’s next session.

During the discussions, the members also considered if the entire proceedings of the National Assembly should once again be broadcast on live TV. After exchanging the same old arguments – from the need to promote transparency by those favoring live TV, to the importance of preventing the public from influencing legislative debate by those against live TV – the members passed the buck to their speaker.

The Constitution and the National Assembly Act both empower the Speaker to prevent the media from attending all or part of the Assembly’s proceedings. So the MPs reasoned that the Speaker alone must decide if the partial ban on live TV broadcast should be lifted.

They are correct. Article 10 Section 15 of the Constitution states that:

The proceedings of Parliament shall be conducted in public. However, the Speaker of the Chairperson may exclude the press and the public from all or any part of the proceedings if there is a compelling need to do so in the interests of public order, national security or any other situation, where publicity would seriously prejudice public interest.

I am hopeful that the Speaker will decide that live TV broadcast does not compromise public order or national security; that it does not prejudice the public interest; and that, in fact, it enhances transparency, accountability and the democratic process.

I am hopeful that the Speaker will allow the resumption live TV broadcast.