Acting late

Four years ago the prime minister pledged to enact a right to information law. The prime minister didn’t give a definite time frame, but he promised that it would be done “soon”.

It’s already been four years since the government made that promise. And we are still waiting for them to keep their word. Now, however, finally, there seems to be some movement: the Department of Media and Information has conducted an RTI awareness workshop, and the Ministry of Information and Communication has distributed a draft RTI Bill for public comments and feedback.

But all this is for nothing. The government has been inactive for so long that whatever they do now will be too little, too late. Parliament has only one session left. And we need at least two sessions to pass a law. So, in spite of any assurances from the government, and any last minute flurry of activity, we might as well accept that the government will not fulfill their promise to give us an RTI Act.

We, the people, will not have an RTI Act during this government’s term in office. But what we have is the Constitution. And Article 7 Section 3 of the Constitution declares that “A Bhutanese citizen shall have the right to information”. So in the absence of a law regulating the right to information, we, the people, can continue to enjoy unqualified and unconditional right to information as an important fundamental right.

Ambassador for life?

Should Parliament make the Prime Minister GNH Ambassador for Life?

The proposal to make the Prime Minister GNH Ambassador for Life was tabled by the Speaker. But it was not discussed in the National Assembly. Yet, the proposal was forwarded to the National Council. And it was almost included in the Assembly’s resolutions as a proposal that had, more or less, been accepted. The Speaker also made indirect reference to the proposal in his address during this session’s closing ceremony.

So should Parliament make the Prime Minister GNH Ambassador for Life? No. First, the Parliament did not follow due process. Second, no one knows what “GNH Ambassador for Life” entails – what it means, and how much it will cost. Third, the nominee is a serving member of the Parliament – such titles should be reserved for past members only, if at all, and only after they’ve proven themselves. Fourth, the nominee is currently under investigation for the Gyelpozhing land scam case. And Fifth, it is outside the scope of the Parliament’s authority.

That authority, to appoint a GNH ambassador for life, belongs to His Majesty the King. According to Article 2, Section 16(a) of the Constitution: “The Druk Gyalpo, in exercise of His Royal Prerogatives, may: award titles, decorations, dar for Lhengye and Nyi-Kyelma in accordance with tradition and custom.”

Lyopno Khandu Wangchuk, the economic affairs minister, however, claimed, the Assembly, that a broader, more liberal interpretation of the Constitution would allow the Parliament to bestow that title to the PM.

I’m not sure. The government has consistently called for a broader, liberal interpretation of the Constitution. And the opposition party has consistently maintained that doing so would be dangerous, especially if those doing the “broad, liberal interpreting” are the very ones who stand to benefit.

Take Article 2, Section 16(a) of the Constitution, for instance. If a liberal interpretation of this provision is taken to mean that other institutions can also, in addition to His Majesty, grant titles and decorations, imagine how the subsequent provisions could be interpreted.

Article 2, Section 16(b) states that: “The Druk Gyalpo, in exercise of His Royal Prerogatives, may: grant citizenship, land kidu and other kidus”.

And Article 2, Section 16(c) states that: “The Druk Gyalpo, in exercise of His Royal Prerogatives, may: grant amnesty, pardon and reduction of sentences.”

Several commentators took exception to my last post, Rule of the mob. Think again. What is preferable? Rule of the mob? Or rule of the law?

Rule of the mob

Last week, when the government introduced the Land bill 2012, I had exhorted the MPs to reject the motion to discuss the Bill. The prime minister reacted strongly to my statement, disagreeing with all my arguments. I had wanted to respond to the prime minister’s strident remarks, but had not been given leave to do so.

It would have been good if we had had the opportunity to discuss my arguments and the PM’s counterarguments in a bit more detail. But we didn’t. There were several issues that I thought merited the Assembly’s, and the nation’s, attention through discussion, perhaps even debate.

One of them had to do with a very basic concept: democracy.

Responding to my views that ministers should not be included in the Land Commission, the prime minister accused me of not supporting the democracy. This, specifically, is what he said:

“The opposition leader’s lack of trust in the elected representatives is equivalent to his distrust in the people, who elected them and the process of democracy.”

This is not the first time this issue has surfaced. On various occasions, the government has claimed that they have won the people’s mandate – an overwhelming mandate, in fact – but that they do not have the powers to fulfill their promises and the people’s expectations.

True, the people have given the DPT the mandate to govern our country. And true, the DPT won with a huge majority. But that does not mean that they can govern our country in any way they please. They must conform to the laws of the land.

We have laws. And our laws define how the elected representatives of the people must govern our country. And they legitimize the powers of the government. But our laws authorize power to various other institutions too, to provide the checks and balances that are important for a healthy democracy. And most importantly, our laws, clearly and purposely limit the powers of the elected government.

The Constitution and other laws provide extensive powers to the government. But they do not give the government absolute powers. As such, they must abide by and work within the framework of the laws. Yes, the government can use their majority to affect policy and to amend laws to their favour, even if the people may not agree with them. That’s why many refer to democracy as the tyranny of the majority.

So long as the actions of the majority are consistent with the laws of the land, there’s nothing much we, the people, can do. Yes, we can, and must, voice our concerns if we do not agree with the government’s actions. But we cannot reject them. In the final analysis we must accept the tyranny of our majority, as long as what they do is within the framework of our laws.

But sometimes, a powerful government, one that commands an overwhelming majority, may be tempted to use their numbers to ignore important laws and bulldoze their way to achieve narrow political objectives. That, obviously, would be illegal. That is not democracy. That, put simply, is the rule of the mob.

Bhutan is a democracy. But we are a democracy as defined by the Constitution, not as it is defined in India or America or in any other country. And certainly not as defined by individuals to serve their immediate interests.

Democracy is about the rule of law. And our laws, especially the Constitution, legitimizes a range of powers to the government. But they also deliberately limit certain powers. Our duty, as citizens of Bhutan, is to support and participate in democracy, but only as defined by the laws of our land.

What we need to watch out for is the rule of the mob. We must be extra vigilant when a powerful government uses the “democracy card” to legitimize illegal actions. That would be illegal. And very dangerous. Our sacred duty, as citizens of Bhutan, is to stay  vigilant and prepare to fight, if need be, against the sinister forces of the rule of the mob.

 

More essential stuff

In my previous post I had proposed that, “the government is getting ready to sell even more foreign currency from our reserves.”

What if I am correct? What if the government is, indeed, preparing to sell foreign currency to alleviate the rupee crunch? If so, what is the procedure?

Last year, four months ago, the government sold US$ 200 million of our foreign currency reserves. At that time, US$ 200 million worked out to Nu 10.3 billion, which in turn worked out to 14% of our GDP. That was, and is, a lot of money. But no one questioned the process. All that was reported on the process was: The government on Thursday night struck a deal to sell USD 200M to address the country’s dire Indian rupee (INR) position…”

We will be required to dip into our foreign currency reserves occasionally. So we should think about the process. Who, by law, for example, can approve the use of our foreign currency reserves?

According to Article 14 Section 3 of the Constitution, “Public money shall not be drawn from the Consolidated Fund except through appropriation in accordance with the law.” In other words, the government cannot spend money unless that expenditure has been approved by the parliament.

But the Constitution is silent about the procedure for spending money from the foreign currency reserves. Instead, Section 115 of the Royal Monetary Act says that, “The Authority may purchase, sell or deal in– foreign exchange …”

Does ‘foreign exchange’ here include foreign exchange from our reserves? If so, should RMA have the complete authority to sell our foreign exchange? If not, what should be the procedure?

The government’s annual budget is debated and approved in the National Assembly. It is then submitted to the National Council for review. After that, it is submitted to His Majesty the King for Royal Assent.

The government’s budget for 2011-12 is about Nu 38 billion. That is not even four times the amount of foreign currency reserves that was sold last year (US$ 200 million fetched Rs 10.3 billion). The process to approve the government’s budget is vigorous. And rightfully so. But the process to approve use of our foreign currency reserves seems to be nonexistent. At best it is vague.

It is essential that the government and the parliament consider this matter urgently. Otherwise, we could end up recklessly depleting our foreign currency reserves.

Essential stuff

Article 14 Section 7 of the Constitution requires that, “A minimum foreign currency reserve that is adequate to meet the cost of not less than one year’s essential import must be maintained.”

But what constitutes essential import? Salt, shoes, sicnidizole – surely they are “essential”. But what about construction material, like, say, CGI? And raw material for industries? Are they essential? And how about arms and ammunition? I think they are essential, very essential.

It’s important to have a proper definition of what, in our context, constitutes essential import. It’s important because that definition will determine the “minimum foreign currency reserve” that must be maintained by the government at any time.

We don’t have a clear definition. But last year, when the government sold US$ 200 million from our foreign currency reserves, they told us that we still had US$ 702 million in our reserves, and that that would finance 13 months of essential import.

Divide US$ 702 million by 13 and multiply that by 12 and we quickly get US$ 648 million, the amount that, by the government’s own reckoning, is required to finance one year’s essential import.

That was in December last year. But yesterday, just four months later, the prime minister announced, on BBS TV, that our foreign currency reserves stand at US$ 716 million, and that that can finance 36 months – that’s three years – of essential import. So basically, the prime minister is now telling us that US$ 239 million is enough to finance one year’s worth of essential import.

Between 648 million and 239 million lies huge difference. And that difference points to two conclusions. One, the government is getting ready to sell even more foreign currency from our reserves. And two we need a clear definition of “essential import”.

The prime minister has proven that the government – this government, and others in the future – cannot be trusted to provide an honest and consistent definition of what constitutes “essential import”.  Governments will define, and redefine it, to yield to immediate temptations of selling off our foreign currency reserves.

We need a better way of defining “essential import” and, by extension, of calculating the “minimum foreign currency reserve” that governments must maintain. One way would be to form an independent authority whose duty it would be to decide, without bias and from time to time, what constitutes “essential import”. But for that to work, the authority must have broad-based representation including members from the government, RMA, judiciary, private sector, and His Majesty the King’s secretariat.

Right to information

Article 7 of the Constitution is about our fundamental rights.

Section 3 of that important article declares that “A Bhutanese citizen shall have the right to information”. By this provision, any citizen has the right – a fundamental right – to ask the government for any information. And the government must provide that information, whatever it may be. That is because the fundamental right of the citizen to government information, as granted by the Constitution, is unqualified. And it is unconditional. “A Bhutanese citizen shall have the right to information” – that’s all the Constitution says, simple and straightforward.

But what if a citizen applies for information and the government refuses to provide it? The Bhutanese, a newspaper, was denied some information that they had requested. The newspaper, or whoever filed the right to information application, was denied the right to information, a fundamental right.

Now what?

The journalist who filed the right to information application, and whose fundamental right was violated could take the matter to the courts in accordance with Article 7 Section 23 of the Constitution which states that, “All persons in Bhutan shall have the right to initiate appropriate proceedings in the Supreme Court 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.”

That means that that journalist could seek judicial intervention to demand the information that was requested. In other words, the judiciary must ensure that that journalist’s fundamental right is not violated, and so must force the government to provide whatever information was requested.

But what about Section 22 of Article 7? What does that section say? It says that:

“Notwithstanding the rights conferred by this Constitution, nothing in this Article shall prevent the State from subjecting reasonable restrictions by law, when it concerns:

(a)     The interests of the sovereignty, security, unity and integrity of Bhutan;
(b)     The interests of peace, stability and well-being of the nation;
(c)     The interests of friendly relations with foreign States;
(d)     Incitement to an offense on the grounds of race, sex, language, religion or region;
(e)     The disclosure of information received in regard to the affairs of the State or in discharge of official duties; or
(f)     The rights and freedom of others”

The Constitution allows the State to subject certain restrictions, within reason, on our fundamental rights. So if the information that that journalist had requested is a state secret, or risks undermining some national interest, that journalist cannot demand that information as a fundamental right. But such restrictions on our fundamental rights can only be made and applied “by law”. And in the case of our fundamental right to information, that law would be the right to information act.

But we don’t have a right to information act. Therefore, that journalist must be provided with whatever information was requested, even if that information is, in the unlikely event, against the national interest.

The prime minister had promised a right to information act. He’s done a U-turn now. He’s now said that a right to information act is not needed at the moment. He should reconsider.

The Constitution guarantees us with the right to information. So we, the citizens at large, and the media in particular, do not need any further legislation to enjoy that fundamental right.

In fact, it is the government that needs a right to information act. The act would protect the government. The act would identify and define the nature and scope of important and sensitive information that cannot be made public in the broader interests of the nation. And the act would permit the government to apply legal restrictions to safeguard and protect such information.

A RTI act is necessary and important. And the prime minister should work on it with a sense of urgency. Otherwise he should support Hon Sangay Khandu’s bold initiative to introduce a right to information bill as a private bill in the next session of the Parliament.

 

Extremely determined disrespectful opinion

The government has decided to discontinue the constituency development grant. That is good news. The government had bulldozed the CDG through the Parliament, without a full debate, without a vote, and without any support of the National Council and the opposition party. The ECB had objected saying that the CDG undermines free and fair elections. And the media has repeatedly questioned the legality of the grant. So the government’s decision to discontinue the controversial grant comes as really good news.

But there’s bad news too. The prime minister has not accepted that the CDG was a mistake. He has not apologized, and he has not explained how he will make amends or who will take responsibility. Instead, he has blamed the people who questioned and opposed CDG. And he has threatened that the “next government” would, anyway, reinstate CDG.

The prime minister claims that he is discontinuing CDG to avoid the specter of another “constitutional case towards the end of their term” as there are “people who are willing to take the government to court.”

Yes, we did take the government to court for raising taxes illegally. And yes, we will not hesitate to take the government to court if they purposely violate important provisions of the Constitution. After all, the opposition party’s main responsibility, according to the Constitution, is to ensure that the government and ruling party function in accordance with the provisions of the Constitution

The prime minister has also complained that, “So here you have the majority opinion and majority feelings giving way to the extremely determined and disrespectful opinion of the few in a democracy.”

The opposition party has only 2 members. That works out to just 4% of the National Assembly seats. And that makes us probably the world’s smallest opposition. But we have worked with extreme determination and we have not hesitated to express our opinion, even at the risk of appearing disrespectful. And I am happy that our unwavering stand has prompted the government, one that enjoys an overwhelming majority, to discontinue the CDG.

But there’s still something else: according to Article 22 Section 18(c) of the Constitution, “Local Governments shall be entitled to adequate financial resources from the Government in the form of annual grants.”

The controversial constituency development grant is no more. Good. But what about the annual grants that local governments are entitled to collect from the government? When will the government fulfill that important provision of the Constitution?

No doubt, the government realizes that the opposition party will be “extremely determined” and will not hesitate to express “disrespectful opinion” to ensure that local governments are provided annual grants, grants that they can use without the interference of their MPs.

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.

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.

[Continue Reading…]

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.