Constitution matters

“Constitution doesn’t imprison and shackle”. With these five words the prime minister argued that the government could raise tshogpa salaries without consulting the Pay Commission.

Indeed, the Constitution does not imprison; the Constitution does not shackle. That is not the purpose of the Constitution. And we know that.

We also know that the purpose of the Constitution is to provide a set of rules outlining how our kingdom must be governed. These rules define the responsibilities of the various institutions of the State – the monarchy, the executive, the legislature, the judiciary, constitutional bodies, local governments, and others – and authorize powers to these institutions so that they can fulfill their respective responsibilities.

But none of the institutions, not a single one of them, enjoys unlimited powers. That’s why the rules also specify checks and balances limiting the scope of their authority. These checks and balances are intended to minimize the risks of mistakes from being made when governing our kingdom. They are also intended to prevent dangerous concentrations of power and authority.

So yes, the Constitution does not “imprison and shackle” the prime minister and the government. But whether they like it or not, the Constitution does subject them to various checks and balances to ensure that our kingdom is governed well.

But it wasn’t just those five words. A story by Bhutan Observer shows that a lot more words were used, and excuses made, to argue that the Pay Commission did not have to be involved to raise salaries.  It’s worth reading the entire article again. So I’m reproducing it here, along with my comments which I’ve inserted, in parenthesis and in red, inside the article.

“Constitution doesn’t imprison and shackle”

PM says tshogpa’s salary raise is justified

(Tshospa’s are being paid below the national minimum wage. So, yes, a salary raise is, indeed justified.)

Prime Minister Jigmi Y Thinley yesterday reasoned why the recent salary raise for the tshogpas is not unconstitutional at the 18th Meet the Press.

The opposition leader last week contested that the raise is unconstitutional because the constitution empowers only the pay commission to revise the salary of public servants.

The prime minister said, “I find it absolutely unconstitutional on the part of people to talk about unconstitutionality of the good actions intended to advance the interest of society.”

(Since when did questioning the government’s conduct of public business become unconstitutional?)

He said the constitution doesn’t say every salary raise and wage increment should be done through the pay commission. But rather, it says that the prime minister may recommend, periodically, the establishment of a pay commission for structural revisions of salaries. “It doesn’t say that every decision should be made through the pay commission.”

(Are salaries being revised? If so, it’s the Pay Commission’s job to recommend the revision to the Government.)

Constitution, Lyonchhen said, was created to enable society to progress, democracy to flourish, and to enable the implementation, translation and the pursuit of the high principles and ideals that should guide the society.

He said the constitution is not a document that will serve as a manual for day-to-day conduct of the business of government and society.

(Article 30 of the Constitution serves as a manual for how to revise salaries of all public servants, including members of the local government.)

Elucidating his point, he said that the constitution doesn’t prescribe how the political parties should be managed on a day-to-day basis and that the prime minister and the minister should wear scarves. And for that matter, there is also no mention in the constitution that there should be a monthly discourse between the media and the cabinet, he said. “Because it’s not mentioned in the constitution, is it unconstitutional?”

(It’s up to the political parties how they manage themselves, but as long as they do not violate Article 15 (Political Parties) of the Constitution, the Election Act and other relevant laws.)

(The Constitution does not prescribe that the prime minister and ministers should wear scarves. So is wearing scarves unconstitutional? No. Would not wearing scarves be unconstitutional? No. It is not a constitutional matter.)

(The Constitution does not mention that the government should meet the press every month. So are the monthly “meet the press” sessions unconstitutional? No. It is not a constitutional matter.)

The prime minister said that if one is truly interested in furthering the interest of society, one should not cite the constitution and say ‘because it is not mentioned in the constitution, it is illegal’.

(Nobody has said that “because it is not mentioned … it is illegal”. On the contrary, because a provision is mentioned in the Constitution, we must abide by that provision. Otherwise we risk violating the Constitution.)

Had the tshogpa’s salary been higher, Bhutan would have got better tshogpas, Lyonchhen said, adding that those interested are not satisfying enough in terms of their capacity and quality. “Therefore, it would have been wrong in terms of the spirit of the constitution for the state to not to have acted,” he said.

(Increase the salaries of tshogpas. I’m all for it. I called for their salaries to be increased too. But, please, do so in accordance with the provisions of the Constitution.)

Opposition Leader Tshering Tobgay had quoted the constitution which states that “the pay commission shall recommend to the government revisions in the structure of the salary, allowances, benefits, and other emoluments of the royal civil service, the judiciary, the members of parliament and local governments, the holders and the members of constitutional offices and all other public servants with due regard to the economy of the Kingdom and other provisions of this constitution.”

Finance Minister Wangdi Norbu said since there were no tshogpa candidates coming forward to contest the elections, the government discussed the issue seriously and decided to raise their salary, which is subject to approval by the parliament.

(The finance minister also said, on 27th October, that “an increment in the salary should be approved by the Pay Commission”)

Lyonchhen said not getting good people elected into the local government means the possibility of endangering democracy, undermining the importance of the quality of governance at the grassroots level, and the possibility that wrong decision will be taken and resources will be wasted.

(Local governments are very important. So we must attract the best people to serve in them. The Rule of Law is also important. If laws are ignored, if the Constitution is violated, democracy will certainly be endangered.)

He argued that when there is no specific limitation in the constitution, one should not go back to the constitution and cite it. “The constitution doesn’t block us, imprison us, and shackle us against good things and actions we need to take,” he said.

(Follow the procedure, follow Article 30 of the Constitution, and have their recommendations ready before the Parliament’s next session. Unless that is, the government wants to exercise full authority to revise salaries of public servants as and when they wish.)

 

Facebook Comments:

Comments

  1. Good luck, I don’t know if you are planning to take the government to the court for the second time.

  2. that man wanting to shelve the constitution & doing as he pleases reeks of authoritarianism..we know he would love to rule as an autocrat..but the wisdom of our kings prevents him from being omnipotent..welcome to democracy, jigmi thinley..the good old days are over..that is why the constitution is the tsathrim chenmo !
    my suggestion to ol/opposition : next elections are nearing.. ensure you register your opposing views whenever this government strays..we know there quite a few issues which have accumulated so far..then in 2012 sue this government all the way to hell..that should make them learn where they have gone wrong..that should keep them busy in the courts..most importantly, that should show the public how these old timers have ruled, lied, pulled the wool over our naive bhutanese eyes & expose them for the greedy hypocrites they are – the pm & all his yes men.. 

  3. Another potential constitutional case in the offing?

    The unilateral pay raise (http://www.kuenselonline.com/2011/?p=21160) for the Tshogpas by the cabinet undeniably contravenes Article 30 of the Constitution of Bhutan.

    The finance minister had earlier cautioned against the rise for the same breach of the Constitution (http://www.kuenselonline.com/2011/?p=19810).

    The opposition leader has been very vocal in his protest against the government’s unconstitutional move. (http://www.tsheringtobgay.com/government/2011/tshogpa-salaries.html); (http://www.bhutanobserver.bt/opposition-questions-tshogpa%E2%80%99s-salary-raise/). But as always, the government refuses to budge an inch.

    In such a circumstance – when the government doesn’t function in accordance with the provisions of the Constitution – the onus of ensuring that the government doesn’t violate the Constitution directly lies with the opposition party as clearly spelled out under 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 fulfill the aspirations of the people.

    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.”

    It is absolutely necessary to ensure checks and balances – and the separation of powers enshrined in the Constitution if we are to nurture our nascent democracy into a vibrant one. The mandate constitutionally rests with the opposition party, and the courts, especially the supreme court. The fate of Bhutanese democracy rests in your hands. You will be responsible should our nascent democracy gets sabotaged or tyrannized.

    Anyone who violates the law must be taken to a court without the slightest hesitation or a second thought. It should be seen as a test to our democracy – that our judiciary functions fairly and independently. It’s not a taboo nor rebellious to take a violator to task.

    The government tactfully maneuvers the rule of law leaving only a binary option for the opposition party. In the case of vehicle tax revision, the options are either to endorse the unlawful act of the government or to take the risk of being misunderstood by the gullible electorates. The government did go overboard in creating a perception that the opposition was siding with the rich against the government. In Shingkhar Gorgan Road case, the opposition is pitched against the people of Lhuentse. Had the government been little respectful of the rule of law, this Shingkhar Gorgan Road fiasco wouldn’t have reached to the present stalemate. It was a straightforward case. Similarly, now in the case of Tshogpa salary the government has pitted the opposition against the tshogpas.

    The people are not taking political speeches at face value anymore. They are dissecting every bit of it. Perhaps it’s the time all of us wake up from delusions!

  4. Dear OL, it seems that pay raise for tshogpas is unconstitutional. Why? I suppose that our PM and finance minister doesn’t have any strong argument to support that pay raise for tshogpa is constitutional. They are just arguing for the sack of their defamation. Their talks were not in the interest of our constitution. Therefore it is every Bhutanese responsibility to uphold our constitution. So own behalf of our innocent Bhutanese, we request our OL to do necessary follow up for this issue. All the best.

  5. I felt very dangerous for OL`s intentions and actions on the basis of personnel attack in the growing and rooting of democracy like ours. No opposition leader in a seasoned democracy opposes in way OL does here…..OL here is opposing not democratically but personally….just my opinion and opinions are just opinions.

  6. I really welcome different views from the GOv.(PM) and OL on salary raise of Tshogpa’s. That is democracy. so every action must be challenged.

    “Don’t be afraid of opposition. Remember, a kite rises against, not with the wind.”

    Hamilton Wright Mabie,
    American writer

    i appreciate our OL’s challenges and his thoughts.

  7. My question is this- If there is a specific process outlined in the constitution for a specific act, why not follow it?
    And there seems to be no good reason to NOT follow the constitution to the letter. SO why not?
    And my next question is, If there is no objection to a particular policy/change revision from any quarters (even the opposition agrees the change is necessary) and what is being done is obviously for the betterment of society, why allow provisions of the constitution to delay it?
    Here’s why. We all know why the constitution is there- it is greater than any government, and no matter how well loved/appreciated a particular government may be, they must always abide by the constitution, which was put in place to ensure that no entity in this democracy disrupts the peace and success of the nation in it’s democratic journey. Raising the salary of tshogpas without referring to the pay commission, thereby violating the constitution may SEEM harmless, but it is not. It establishes that it is OK to violate the constitution, to belittle it’s provisions if you feel what you are doing is right. Today it is something we all have been asking for for a while, but tomorrow it will be something that some people are against, and day after it will be something that a lot of people dont want, being passed without following the proper channel. Our constitution definitely does not shackle. It is a beautiful constitution, not because it is perfect, because no book of law can anticipate all ends- but it is great because it recognises that it may not be perfect, one day, in one particular situation, we may find something lacking in the constitution. And for that, there is a provision in the constitution to change it, in the proper way, through a national referendum. Our constitution, developed in consultation of the people, is not a book dictating how we must live our daily lives- it is a promise, renewed by every government who takes over, to do right in their term in office. When the PM says ‘the constitution does not ‘imprison and shackle’ i hear him say that he feels imprisoned and shackled while abiding by it. And in saying that the constitution does not say ‘every’ pay revision must be routed through the pay commission, the PM sounds a lot like those lawyers playing word games to get around a certain law.
    The constitution says “The Pay Commission shall recommend to the Government
    revisions in the structure of the salary, allowances, benefits,and other emoluments of the Royal Civil Service, the Judiciary,the members of Parliament and Local Governments, the holders and the members of constitutional offices and all other public servants with due regard to the economy of the Kingdom and other provisions of this Constitution.” It is clear enough. If the PM sets precedence of finding loopholes in the constitution, every single article may be interpreted differently based on what it doesn’t say. A fundamental right such as this “A Bhutanese citizen shall have the right to freedom of speech,opinion and expression.” can be denied to someone because it say a Bhutanese citizen and not “every’ Bhutanese citizen, for instance. The example sounds silly, but so does the excuse from the PM that while the constitution requires that a pay commission recommend salary revisions, it does not say ‘every salary revision’. where do we draw the line between in which instances the pay commission is necessary, and in which it is not? or is it now entirely upto the PM to decide, defeating the purpose of having a constitution at all? We do not pick and choose when to follow the constitution, we always go by it. and if something in it is not right, we change it in the proper manner as described in the constitution, and then we follow it. Because the point in having a constitutional democracy is to let many voices of the people decide on things, and not leave decisions in the hands of a single person.

  8. Tenzin Penjore says:

    PM is a big lier and will use anything to suit him – even the sacred of constitution of Bhutan.

  9. Hey readers, yes it is good decision taken by the government to increase the salary of tshogpas. We appreciate it, like it and admire it. Absolutely we are not against that. That is great job done by the government. Keep it up. But suddenly why don’t they follow proper channel, instead of violating constitution. That is big question in my mind. Of course our PM and other ministers were aware of that. They were the senior most productive citizens of this small and peaceful country. They are the engines of our country. Having known about our constitution from top to bottom, if they tend to violate it, we are shedding tears from our two eyes. May be they are trying to misuse their powers. How can we trust future governments, if this is the scenario with our present capable leaders. We cant imagine……….. So as a responsible citizen of bhutan, we must take steps to kill the fire when it is small. Otherwise it will burn the whole nation. So readers let us hope for that. Any comments please.

  10. I guess Tshogpa’s salary rise is an executive decision, which the cabinet is lawfully permitted to do so: But whether this cabinet decision can be translated into action is up to the legislative body. I surmise that this decision will be discussed in the winter session of the NA and people who oppose it on constitutional ground can do so during the session.

    I just can not imagine that current cabinet headed by wise PM could take decision that violates constitution!!! They seemed to have done it for vehicle taxation as judged from SC judgement but if it is repeat offense then cabinet must have legitimate answer. Of course, we must not allow systems to violate constitution or its provisions; otherwise we are setting dangerous precedent.

    Cheers

  11. “Old habits die hard.”

    That’s what it is. We voted for DPT and gave them a landslide victory in 2008 because we wanted “Continuity.” And that’s exactly what we are getting. People in power (especially old Ministers, Secretaries, etc.) could always do whatever they wanted — whether it is legal or illegal.

    With the coming of democracy, checks and balances and the institution of the opposition party, and social media, people now have a voice and can point out the mistakes committed by those in power.

  12. Please do not play the blame game again. Yes the PM did some things that are unconstitutional for the benefit of the country and the people. Had he done anything which would harm the tsawa sum, then you all are right. A man of his intelligence and dedication to the tsawa sum will never take the country and the people for a ride. I am sure had you been in his shoes, you would act like what Hitler did in Germany during Nazi period. If you blame the PM so much, why did not you join politics and become the PM yourselves. Fortunately that did not happen, otherwise we won’t be where we are now after three and half years. The country would be doomed and the K4 would have regretted having ushered in democracy. Pelden Drukpa Gyalo.

  13. I AM WITH SHATSHA……………..

  14. Dear Hon’ble OL,

    Never compromise RULE OF LAW. Without Rule of Law, democracy does not exist – it is as good as dead. I applaud you for upholding Rule of Law against all odds even fighting and winning a lone battle on behalf of the people of Bhutan – both for current and future generations. Make protecting RULE OF LAW the hallmark of your leadership – you will go a long way.

    For protecting the Rule of Law alone, you deserve to be nominated for the honor of RED SCARF – the highest honor any Bhutanese can ever aspire. I pray to see that someday. You were the most unlikeable MP among all the MPs in the beginning but you have made your genuine mark and earn your respect through hard work, courage, and perseverance – this is my honest feedback.

    Respects,
    Invisible

  15. I’m a little perplexed on your interview with Bhutan Today paper that you will not lead the Party but hoping that the former leader will come forward and take up the responsibility.
    I am of the opinion, that since you have proven to be a very effective OL,which has won you a lot of admiration among your supporters and grudging respect from even die hard DPT members,there is no reason for you to shy away from the leadership role. I call on you to be brave, bold and move forward, instead of feeling sorry for yourself that the bureaucrats don’t like you. I feel if a survey is taken, you may be pleasantly surprised that they may have changed their views on you. Personally, I believe it was your leeching around some influential families and the stigma of you being LSN’s chamcha. It is time to show who you truly are and move forward with fortitude.
    And, I do believe that I’m not too far away from the discussions on the constitution, as we need conscious politicians to protect it no matter what.

  16. Pleae uphold the constituion. Fight for the people not for yourself, surely your citizens will be on yiur side. see surely you will win the next election. Keep up

Leave a Reply