Parked Constitution?

On 12 December the prime minister inaugurated the Wangchuck Centennial Park. This is good news and bad news.

The good news is that Wangchuck Centennial Park, our country’s second largest, covering 3736 sq km across four dzongkhags, connects the Jigme Dorji Wangchuck National Park in the west with Bomdeling Wildlife Sanctuary in the east. The entire northern belt of our country is now protected, allowing for even better management of our rich biodiversity. The park will also protect our water systems, essential for hydropower, and provide ecotourism opportunities for our farmers.

The bad news is that the park is illegal. According to our Constitution, only Parliament has the authority to declare parts of the country as protected areas. And Parliament has not discussed the establishment of the park or enacted legislation proclaiming the area as a park. The government’s recent announcement, therefore, violates Article 5 Section 5 of our Constitution which reads: “Parliament may, by law, declare any part of the country to be a National Park, Wildlife Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical Watershed and such other categories meriting protection.”

The government either does not understand our Constitution or is disregarding it. I’m not sure which is worse.

……………………………………
photo from www.moa.gov.bt

 

Facebook Comments:

Comments

  1. my company, Zekom’s Best, has a corporate lawyer.
    her job is to make sure what we do is correct in the eyes of the laws of the land.
    that includes the constitution, and she knows it as if it’s the back of her palm.
    i can send her to help the government!

  2. “Parliament may, by law, declare any part of the country to be a National Park, Wildlife Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical Watershed and such other categories meriting protection.”

    As it says may it may not be unconstitutional. The interpretation might be wrong.

    Anyways it is never illegal!

    Tashidelek

  3. Dear Anonymous,

    My corporate lawyer is not a constitutional lawyer. But, here is her considered opinion.

    Article 5 (Environment), section 5, of the Tsa Thrim Chhenmo states: “Parliament may, by law, declare any part of the country to be a National Park, Wildlife Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical Watershed and such other categories meriting protection.”

    Note the specific reference to “by law.”

    The above needs to be read in conjunction with Article 10 (Parliament), section 1 of the same, which states: “There shall be a Parliament for Bhutan in which all legislative powers under this Constitution are vested and which shall consist of the Druk Gyalpo, the National Council and the National Assembly.”

    Note that all law-making powers under the Constitution are given to the Parliament.

    Need I say more? I trust not!

  4. Good observation! However, the matter is subject to interpretation. The Government has taken the decision to declare the park based on the provisions of the Forest and Nature Conservation Act 1995. As per Article 1.10 of the Constitution, unless existing Acts are amended or altered, they shall continue to be in force as long as the provisions are not contravening the articles of the Constitution. As far as I can see, there is no contradiction between the two. Interested readers may like to visit http://www.moa.gov.bt/legislations/forest and nature conservation act for further clarification.

  5. thanks, anonymous!
    your points made my own thinking clearer.

    there are 3 issues:
    1. validity of the old Act.
    2. the power to enact a law.
    3. the power to apply a law.

    on the 1st, the issue is who calls the shot whether the old Act remains valid under the constitution.

    on the 2nd, the constitution is clear.

    on the 3rd, my common sense tells me: it is the parliament that is vested with the power to “declare” the national park according to the relevant “law”, whether old or new.

    but, neither of us is a constitutional lawyer…
    do we have one???

    anyway, here’s what my corporate lawyer says:

    “I expect, in any government, the presence of a legal authority vested with the responsibilities to consider the constitutionality of all legal (as opposed to administrative) actions entertained by the cabinet or any of its member.”

    “If there is no such authority clearly defined in a government’s due process, then it is a systemic issue that needs corrected.”

    hmm …

  6. Tshering Tobgay says:

    It’s time to quote Article 1 Section 10 of the Constitution in its entirety: “All laws in force in the territory of Bhutan at the time of adopting this Constitution shall continue until altered, repealed or amended by Parliament. However, the provisions of any law, whether made before or after the coming into force of this Constitution, which are inconsistent with the Constitution, shall be null and void.”

    This should answer Zekom’s first question of validity of an old act.

    Zekom’s second issue is clear.

    On the third, we have the judicial system (see Article 21 of the Constitution). And in the absence of the Supreme Court, refer Article 21.18which states “Every person has the right to approach the courts in matters arising out of the Constitution or other laws subject to Section 23 or Article 7”

    Also see Article 7.23 “All persons in Bhutan shall have the right to initiate appropriate porcedings in the Supreme Cuort or High Court for the enforcement of the rights conferred by this Article, subject to section 22 of this Article and procedures prescribed by law”

    And finally, a plug, see my post “Supreme Excuse”

  7. yes, i know about our courts, etc. … but …
    i think you misunderstood me.

    all i meant to point out is my novice reading of the constitution’s Article 5 Section 5: it is the parliament that is empowered to declare a national park.

    who declared the national park the other day?
    sure wasn’t the parliament, which was not in session.

    that’s all!
    am i missing something???

  8. Tshering Tobgay says:

    I’m sorry Zekom. I shouldn’t have elaborated on the courts. My objective was to argue that Article 1.10 would make parts of the Forest and Nature Conservation Act (1995) “null and void”

Leave a Reply