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.

 

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Comments

  1. May I ask you as to why you can’t take the ECB to court. If what you say is true, then something is definitely wrong with our laws and maybe it is the OL who should be pointing out these flaws. As a lay person, I find it utterly baffling that while the government can be taken to court other constitutional bodies can not be taken to court by the OL.

    So who’s job is it to see that constitutional bodies function in accordance with the provisions of the constitution!

    By the way, the other front where you seem to be very quiet is about the corruption cases that are plaguing the country. Or it just maybe, that it is not the OLs job to take the government to task by demanding they do something about corruption.

    Right now, the single most problem the government is facing is the rampant corruption in every place you look. If nothing is done to curb this alarming trend, it will, inevitably lead to poor governance which will then impact negatively on all spheres of Bhutanese life. We are running out of time and the OL has not even blogged once on this subject, something which I think is much more serious then the government raising taxes unilaterally.

    Cheers.

  2. When important institution breaks the law, other institutions meant for check and balance should question and make accountable. If need be, it should be taken to the court like what opposition did for the government. In the case of ECB violating the constitution, the other institutions like government, NC,NA, Opposition etc. should question and ensure accountability. Like Government, ECB’s intention was also noble but unfortunately it was not in line with the constitution. Government, anyway, has flouted the constitution itself and there is no question of making ECB accountable by taking to the court. But opposition did for the government and now, when it comes to ECB, opposition is shying away with lame excuses and convenient interpretations. Certainly, Opposition has more responsible than individual citizen when it comes to upholding constitution. This applies to other institutions like NC,NA etc. as well. However, constitution was never meant to create obstruction for well intended actions and here, we will have to interpret in very broad way for the benefit of people and country. If we continue interpreting constitution like today, by 10 or 15 years, there will be thousand of constitutional cases in the court.

  3. Dear OL,
    I disagree that the Guardian knows the Constitution well. If it were so, he/she would not have challenged you to take on the ECB. Who would want to expose their ignorance, unless, of course it was meant to misinform and make you into the sly fox that the other on-liners are writhing about in the Bhutan Times Online.
    You and Damchoe have done a great job and all I can say is keep it up.

  4. Looks like Guardian has no trust and confidence in the govt. to route out corruption ans is seeking your help. But, I would advise you not to get into the govts. territory too much as they should be doing what they should be doing.

  5. What the OL said is absolutely correct. The Opposition can not directly take any other Constitutional Body to court for breaching the Constitution. It can only remind and advise. However, the Opposition can garner support and arrange ways for the GENERAL PUBLIC to raise the issue and take ANY Constitutional Body to the Court if they violate the Constitution or any other election laws.

    So my answer for all the people and especially for Guardian is this: THE PEOPLE!!

  6. The ECB escaped from the constitutional crime – the blatant violation of the Constitution (during Thromdey election). Neither NC nor opposition party did more than just write a “letter of concern” to the ECB.

    But the NC and opposition party which are supposed to be play a role of guardian have simply let the blatant breach of the Constitution go into the democratic history of Bhutan.

    This will serve as example for constitutional bodies and even the governemnt to violate the constitution to fulfill their interest in future.

  7. Sonam S is right

    The Prime Minister had justified the ECB’s breach of the Constitution in the name of liberal interpretation then, perhaps the governemnt itself was in the breach of the sacred document.

    PM’s support for the ECB’s violation of the Constitution was a matter of SHEER IRRESPONSIBLITY on part of the PM and the governemnt which is supposed to set the precedent.

    The ECB’s unconstitutional move (waiving the mandatory one-year census requirement for candidates during the first thromdey election) will provide grounds for justification for violating the constitution.

    Shame on the leaders and the society who simply kept quit!

  8. guardian says:

    Yigcho,

    As there seems to be no will on the part of the RGOB in fighting corruption, I wanted the OL to take the fight to the government. What a pity that you seem to be perferctly happy with the government doing nothing to root out corruption. And, contrary to what you may believe, I think it is vital that the OL voices his concerns on the present state of affairs vis-a-vis the rampant corruption that is going on. As many of the corruption cases that the attorney general’s office is presently prosecuting on behalf of the government is taking so long to finish, maybe the OL should propose to the government to set up fast track courts so that the guilty are brought to justcie asap. This will send a clear signal that the RGOB needs business.

    Somehow, I feel that the OL has not got his priorities right.

    Tangba, thanks for educating me, as Yigcho mentions, I am in completely ignorance about most artciles of the constitution, as a lay person, I just assumed that the OL had erred in letting the ECB off the hook so easily.

    In both cases, however, my assumption is that the government and ECB believed what they did was in the best interest of the country.

  9. BRAVO!!!!

  10. Guardian,
    You have the same right as the OL if you really want to persue a case against the ECB. Why are you not doing it? Or why isn’t the government doing it? Why are you only pressing OL to do it, is it because you don’t like OL.
    Why can’t government tackle the corruption on their own, afterall they have the majority. If they can bulldoze other stupid laws like Tobacco Act and Meat Ban through the parliament, I am sure they can easily, amend or introduce laws to tackle corruption. OL is just one person like you or me. If you really want to fight against corruption, why not form an organisation and force our government to do something.
    There are some institutes where OL cannot meddle, ECB, ACC, Judiciary are some of them. Those are independent organisations.

  11. For corruption there is ACC. ECB should have been taken to the court by the other candidates for Thrompen and not by the OL.

    However, OL may bring this ECB issue before the parliament during Q & A session.

  12. Toka Sharang says:

    Yes, if ECB is found guilty of violating either Election Act of Bhutan or the Constitution, it’s the responsibility of the contestants to bring it to the notice of the government because they would have all the evidences. If ECB does not act even after the complaints have been lodged, then the complainants have all the rights to take them to court, not the Opposition. That’s what, I feel! Whatever our Opposition Party is mandated to do, it is trying its best and we all must appreciate their efforts.

  13. Dear OL,
    I am proud that you are you are fullfing your resposibility beyond our expection. That is what democray mean.His majestry Said, ” It is every citizen’s duty to build vibrant democray in our country” I un quote.So for me by taking goverment to the court,it sense nothing rather you are proving your role as OL and true citizen of the country. Keeep same spirit provide justice to our fellow citizens.

  14. So we need to change the laws so that the OL can also take any constitutional body to court if they seem to be flouting the provisions of the constitution. It’s absolutely laughable that while the OL can take the government to court, he is not allowed to take other institutions to court for the same crime.

    Now Honorable OL, do something to weed out corruption in this country.

    Cheers.

  15. It is not at all fair for the fact that some body is taken to the court for violating the constitution and somebody not for the same offense. I feel it is still the responsibility of the OL since he had reminded ECB on the note, to raise this issue seriously in the coming session. The fact is that the govt is penalized for violating the constitution by SC through OL by way of letting taxes refund and stooping any further taxes unless it comes through parliament. For this, govt has started acting on it meaning they have respected the verdict. But for ECB`s case, OL wanted not to sue for whatever reasons and the bottom line is that both of them had violated for good intentions and interests. Now where is the onus stand when somebody violates the constitution and there is no body to take them to the SC. When govt do it, OL will do that, no doubt. But who will do it when some one does that. If SC is the sole custodian and final interpretation of the constitution, i think SC should interrupt without somebody waiting to bring in front of them. Finally to me, it is the parliament, lead role taking by the OL to discuss whether they will let on go, for constitutional bodies or any other, other than the government violating the constitution. Parliamentarian should define clearly. As of now, check and balance for violating by the govt is fixed towards only OL and not bodies, as said by oL.

  16. As of now, check and balance for violating the constitution by the government is absolutely taken care by OL and he doesn’t want to do for other bodies as he claimed for he being not mandated with.

  17. Excellent interview on BBS last night lyonpo! While through your blog you get across to people who can read and have access to internet, yesterday was a good way to get your message across to the rest of the people who don’t have that kind of access.

    I hope that people who think that the constitutional case was about stopping the govt. to raise progressive taxes to help the poor are clarified that the case was only that of a procedure, after listening to you last night.

    Excellent job once again!!!!

  18. Dear OL,

    Referring to your argument on the recent case, I wish to raise my opinion as following:

    There are roles and responsibilities prescribed in the Constutition or other laws. But execution of these roles are subject to procedure, which in common language is called “proper channel”, agree? Now you know more than most of us and agree that every one is allowed to bring a case to court but must follow a “procedure prescribed by law”.

    You will also agree that there is no other law on the procedure for bringing case to court than Civil and Criminal Procedure Code 2001. High Court and Supreme Court accepted that you did not qualify to bring “the case” by the only law on procedure.

    You will also agree that these Courts are the courts of “law” not just because they are called the court of law but because they have no other source of authority than “laws”. If a court of law derogates “the law”, the very source of its authority, the court loses legitimacy. Our High Court and Supreme Court have derogated the Law of Procedure which the courts are required to follow. Thus, where is the authority of the decision on the case?

    Talking about the democracy that you professedly stand for, I fail to understand your argument. Democracy by how I understand and I believe others concur on my understanding of it, is synonymous with majoritarian rule. I fail to see democracy in two persons imposing their will on the rest of the members of a House by trampling upon all the institutional traditions. What the rest of Bhutan want is not allowed because Sombeykha and Goen-Khatoe did not want. Is that a democracy? The worst part is, you managed to fool the courts.

    Do not forget that the instituions and systems are ours (of people of Bhutan) not your toy to pass your time with. You, the guardians of institutions and systems must engage them responsibly.

  19. Interview was good. More than the answers given by the OL, i admired Dawa`s questions.

  20. nosamtang says:

    Tangba and Toka sharang,
    What a conveneint excuse for OL! If the contestent for the Thromde elections(in this case the injured party) has to take the ECB to court and not OL, why didn’t the car dealers (the injured or affected party here) sue the government instead of OL? Is it because unlike the wealthy car dealers, he will stand to lose more than he will gain by doing that to ECB ?

  21. we layman are just as confused as the debaters are ( the two parties). the example set is not so desirable.I wouldn’t expect the superiors, who have all the brains try a tug-of-war and confuse the defination of democracy.
    if there is better things, it wouldn’t be all these at the start. the start in itself is just lot confusing. where are the committments, and where are the oaths, where is the direction…always confusing.

  22. Nosamtang has made a valid point. I salute him for this. Yes, car dealers and people who actually purchased vehicle did not sue the government nor they authorized OL to sue the govt on behalf of them. But OL was so admired to act against, for the reasons that God knows.

    Now, why OL not ready on behalf of those injured party or the people? Whether, the party is injured or the people are affected due to such violation is not a matter of issue and concern. The gross mistake is that, ECB had declared to violate the constitution and ECB did it during its actions though we firmly believe that it is for a noble cause.

    • Dear “nosamtang” and “Traala”:

      The opposition party did not take the government to court for increasing vehicle taxes. We did so because the government had increased taxes without seeking the Parliament’s approval; without following the procedure required by the Constitution.

      The case was not about taxes on vehicles; and not on behalf of the car dealers. If it were, the Judiciary would never have accepted the case. In reality, the case was about constitutional procedures for imposing all taxes. Incidentally the government had approved tax increases on about 5000 different products, not just vehicles.

      On why we haven’t taken ECB to court? I’ve explained that we don’t have the mandate. Which means that the Judiciary will not accept the case. In this case, our job is to raise awareness – and we believe we’ve done that. If ECB must be taken to court, there are other instruments to do that, including litigation by those directly effected by the ECB’s actions.

      Please contact me if you would like to discuss this matter thoroughly … we could do so in person or by email.

      tshering

  23. Bituman,
    You seem to be an educated person, so I am sure you don’t need any more explaining. Democracy maybe the rule of the majority, but there is no democracy in the world where the rights of the minority are trampled with. In fact, places like US, the worlds second largest democracy, minority have more rights than majority. Minority can sue the majority if theirs rights are being trampled.
    Just because someone has a majority does not mean they can ignore the minority. That is not how a democracy works.
    If we go by your theory of whatever majority does goes, then why even have Parliament sessions and waste money, they can do whatever they want. No discussions needed, period, after they have the majority. I guess since they have the majority they can chase away all the Non DPT voters out of Bhutan, right? They have the majority after all. Is that how you interpret democracy.
    It looks like some of the people does not think on their own they blabber whatever PM says. Both the OL and SC said that they were not against the raising of the taxes, They were against the procedure. We don’t want our young democracy to start on the wrong foot by breaching the constitution. DPT has a majority in the parliament, they can easily pass any law they want, so why not do it the proper way. Democracy is here to stay, so do it the right way.

  24. guardian says:

    False, don’t make me laugh! Did you read my 2nd post where I clearly mentioned that both the ECB and RGOB did what they believed was the best for the country. I have absolutely no problem with the ECB so I have no need to take them to court, maybe you should take them to court. For me, it is a simple case of double standards, while the government is being victimised, the ECB is being let off, for very similar offenses. At the end of the day, the ECB and RGOB were both guilty of mere procedural lapses, somethig which the OL should have overlooked, as the taxes raised would have been used largely for the benefit of all Bhutanese citizens.

    In the next session of parliament, the government will most likely be tabling the tax issue so as to get the new taxaion policy passed. Likewise, maybe the OL needs request parliament to pass an act which will allow him to take anyone violating the constitution to court.

    As for Dawa’s interview, I was disappointed that he did not ask the OL as to why he was not being vocal against the government about their inaction against rampant corruption in the country. I have raised this issue many times with the OL, all I have been met with is stone deaf silence.

  25. guardian says:

    False,

    Don’t you think that it is the OLs mandate to see that the government is doing their job properly. The OL as an elected MP has the floor of the parliament to take the government to task about their zero tolerance to corruption policy, something which is clearly not working. While the OL opposes the RGOB on many simple matters, his silence on this subject is baffling to say the least.

  26. I don’t care what their intentions were, but our country being a constitutional democracy, we have to follow the constitution. Do you know why our constitution was drafted and enacted before the elections? It is because our constitution is the core of our democracy. No one can violate the constitution. If they want to pass a law, then discuss it in the parliament, amend constitution. Again no one was against the tax , how hard is that to understand. OL repeatedly said that he supports taxation, do it according the constitution. Who better to interpret the constitution than out Chief Justice. He was one of the main person behind drafting the constitution. Do you think he is wrong? The very person responsible for drafting the constitution.

    I am sure many laws that are being passed in the parliament are for good intentions, but according to you, since they are for good of the country, there is no need to discuss them and pass it through the parliament. Why not just cancel national assembly. We would save a lot of money , because like you said , all the agendas in the parliament are for the good of the country. There is no need for National Assembly. Let DPT do whatever they want.

    You always bring up ECB case, why can’t the government bring the case against ECB, do you mean to say only OL is responsible to safeguard our constitution. I know people like you, if OL took ECB to court, you all will say that OL Is a bad person, he takes everyone to court. We all know you won’t be happy no matter what OL does.

    Remember majority can make mistakes too, long time ago, majority of the people thought that the earth was flat and sun went around the earth. If we let majority dictate, we would still believe that the earth is flat and it is the center of the universe.

  27. guardian says:

    Do you really take what the OL says as the gospel truth. As far as the constitution is concerned, it can be intepreted in so many different ways, that’s why the PM stated that the constitution should be intepreted liberally, otherwise the government would land up in court every now and then. I would agree with you that if the government was doing something which would seriously harm the country and it was in violation of the constitution, then it would have been right to take the government to court. In this case, I am sorry that I have to disagree with you, as the raising of taxes was to benefit all Bhutanese.

  28. Dear False,

    Will you stop beating around the bush and quote one case “in the world” where a minority in a House of Parliament took the rest to court because they would not accept minority’s stand?

    The Public Finance Act was violated by the Govt.’s action taken under the Sales Tax Act. Accordingly, Supreme Court suggested amending “by the Government” in the Sales Tax Act to “by the Parliament”.

    Govt’s action was perfectly within the Constitutional ambit because “raising of revenues” or imposition or alteration of taxes is required by the Constitution to be carried out “by law”. Sales Tax Act is a law, do you agree?

    If you observe closely, Constitutional provision has been sidelined because, while the conflict is between the Public Finance Act and Constitution, the SC ruling requires amendment according to the Public Finance Act. Thus the Constitutional provision has been overridden. Sacrilege!!!

    “False”,
    Do you still think there was breach of Constitutional provisions by the Government?
    Apparently, the Supreme Court has breached it.

    Remember, the OL in his interview did not point out which particular provisions of the Constitution were breached. He said “he inferred” breach.

    Do you still think I am blabbering the words of PM without my own independent thought? Think over.

  29. Rationalist says:

    Dear Readers and Writers,
    Don’t simply blame hon’ble Opposition Leader or Opposition Party. Of course I recognized this world is filled with criticism for doing otherwise for not doing. But what is most important is the needs to understand the roles, duties or responsibilities of Opposition Leader or Opposition Party enshrined in our Constitution and if possible every article of the Constitution itself.
    To oppose the government decisions for common good by Opposition Party and to uphold the provision of the Constitution is one of their mandates stated in our Constitution. In this, what has gone wrong when Opposition Party has taken govt. to the Royal Court of Justice? To me personally, I don’t see anything wrong with Opposition Party or Opposition Leader but simply I could see they have fairly executive their duties.
    Why Opposition Party hasn’t taken ECB to government for breaching our Constitution is another issue here. To me, Opposition Party does not have any legal mandate lettered in the Constitution to take ECB or any other Constitutional Bodies to the Royal Court of Justice. It’s not the failure of Opposition Party but I undeniably accept it as a failure of we the citizen at large for not taking ECB to the Court.
    We simply think of our Fundamental Rights conferred by our constitution but how many of us have realized that we too have Fundamental Duties in our Constitution. One of the Fundamental Duties in our Constitution is to Act in aid of the law under Article 8 section 10. Did we do justice to ourselves by shouldering that responsibility or duty? If so, we should have question ECB but no one. Every one simply remained still like a beautiful sea even without slightest touch of wind to make the waves move.
    Therefore, it’s my genuine plea to all the readers and writers to understand the Roles, Duties or Responsibilities of Opposition Party conferred by our constitution before we simply blame Hon’ble Opposition Leader or Opposition Party.

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