In action or inaction?

The National Council and National Assembly will meet in a joint sitting tomorrow to discuss two important matters: the Tobacco Control (Amendment) Bill, and state funding for political parties.

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.

Controling tobacco control

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.

Educating ourselves

In 2010, when the government announced that 1,000 acres of land had been allocated to build the Education City, I had worried that, “government policy is being formulated around a particular project.”

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.

Oath of Allegiance

For king, country and people

The 8th Session of the Parliament began yesterday. The 8th 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 11th day of the 11th Month of Iron Female Rabbit Year corresponding to 4th 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.

Inviting issues

The eighth session of the Parliament will start on 4th January. Here are the bills the National Assembly will discuss:

  • 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.

Utter nonsense

The National Assembly’s live TV broadcasts are proving useful. One observer, for instance, a senior civil servant, followed the recent debate on the Anticorruption Bill, and noticed that I “didn’t utter a word” during the discussions. She spoke to Kuensel about it, which reported that:

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.

Financial services … for who?

A joint sitting of the Parliament passed the Financial Services Bill. 66 members voted for the Bill. Only one member voted against it. That solitary member was me.

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.

National speaker?

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.

Quiet!

Several readers have repeatedly asked me why the opposition party had not taken the ECB to court for disregarding the Constitution during the recent thromde elections.

“Guardian”, for example, has argued that since the opposition had taken the government to court for violating the Constitution, it should, by the same measure, also take the ECB to court for allowing candidates to stand for election even though they had not been registered in their respective constituencies for the minimum one-year period. And

Since I hadn’t responded to these concerns, “Guardian” challenged, on several posts, that “by going against the government proved only one thing and that OL was protecting his well off and well connected cronies”.

And demanded to know “Why is the OL happy to let the ECB do things that are in complete contravention of the constitution and yet is willing to take the government to court even when he knows that the raising of vehicle tax would affect the rich more than the poor of Bhutan.”

I know that no amount of explaining will satisfy “Guardian”, simply because “Guardian”, whoever he or she is, understands the Constitution and the democratic process very well.

“Guardian” is fully aware that the constitutional case was about the procedure of imposing taxes, and not about objections to any particular tax, including the tax of vehicles.

“Guardian” is also fully aware of the opposition party’s roles and responsibilities set down in Article 18 of the Constitution:

  1. The Opposition Party shall play a constructive role to ensure that the Government and the ruling party function in accordance with the provisions of this Constitution, provide good governance and strive to promote the national interest and fulfil the aspirations of the people.
  2. The Opposition Party shall promote national integrity, unity and harmony, and co-operation among all sections of society.
  3. The Opposition Party shall endeavour to promote and engage in constructive and responsible debate in Parliament while providing healthy and dignified opposition to the Government.
  4. The Opposition Party shall not allow party interests to prevail over the national interest. Its aim must be to make the Government responsible, accountable and transparent.
  5. The Opposition Party shall have the right to oppose the elected Government, to articulate alternative policy positions and to question the Government’s conduct of public business.
  6. The Opposition Party shall aid and support the Government in times of external threat, natural calamities and such other national crises when the security and national interest of the country is at stake.

By Article 18, it is the duty of the opposition party to ensure that the government does not violate the Constitution. That’s why we took the government to court for violating the Constitution.

But what if ECB, other constitutional bodies, or independent agencies violate the Constitution? Can the opposition take them to court? I don’t think so. The Constitution does not empower the opposition to ensure that they function in accordance with the provisions of the Constitution. That check and balance is provided in other parts of the Constitution, including Article 13 – Impeachment.

So why did the opposition party write to the ECB when it risked violating the Constitution? Because Article 8 Section 11 of the Constitution requires that “Every person shall have the duty and responsibility to respect and abide by the provisions of this Constitution”.

The opposition party, like any other citizen, can write to the ECB alerting them of violations of the Constitution. And that’s what we did.

But taking them to court is another matter. The opposition party may not have the legal mandate to do so. And that’s why we’ve kept quiet.

2 Letters

I sent two letters today. The first letter was to the Chief Election Commissioner informing him that the ECB’s recent decision to revise the criteria for candidates to local governments may violate provisions of the Constitution, Election Act and the Local Government Act.

The second letter was to the Director of BICMA complaining that The Journalist had quoted me in their article when they hadn’t even interviewed me. And that, in that article, they had inaccurately claimed that I had supported the ECB’s decision.