Saving face

The Supreme Court has ruled that the government violated the Constitution by raising taxes without seeking the Parliament’s approval.

This is a landmark verdict. But the verdict should not be seen as a loss for the government. Nor should it be seen as a win for the opposition party. In fact it should be seen, and celebrated, for what it really is: a resounding victory for the democratic process.

Even so, the government made a mistake – a serious mistake – by imposing taxes unilaterally and, in so doing, violated the Constitution. For that, the government must accept moral responsibility.

Naturally, how the government exercises moral responsibility for their transgressions is their business. It is an internal matter, but one that is important, as it will set the standards for government accountability.

In this instance, however – for imposing taxes unlawfully – the government should just accept that they had made a mistake, apologize for it, and move on.

Apologize and move on, that’s what the government should do.

Instead the government has responded to the Supreme Court’s decision in other ways, all of which is exactly what the government should not do.

First and foremost, the government should not tell people that they have been prevented from raising taxes. That’s not true. The constitutional case did not question the need to raise taxes, including the tax on vehicles.

Taxes are needed, there’s no doubt about that. And taxes must be raised, especially to meet national goals. But taxes can be raised only in accordance with the procedures enshrined in the Constitution. And that’s what the Supreme Court’s verdict is about – how to impose taxes.

The government can and must raise taxes. But when they do so, they, like all of us, must follow the law.

Second, the government should not threaten people that they will not receive electricity or roads or other development work, because they can no longer accept grants and raise loans. Again, not true.

The constitutional case was about the procedure to raise taxes, not about accepting grants or loans. The Supreme Court has even clarified that the government has the authority to accept grants and raise loans.

Third, the government should not claim that the Supreme Court’s verdict has weakened democracy. It has not. On the contrary, the constitutional case and the verdict have strengthened the democratic process. Various institutions – including the Parliament, the ruling party, the opposition, the executive, the media and, most importantly, the judiciary – played their respective roles to safeguard the Constitution and to ensure that its provisions are understood and obeyed.

The constitutional case and the verdicts of the courts have strengthened the rule of law. That surely is good for democracy.

And finally, the government should not threaten to resign. No one has asked for any resignation. Talk about resignation – either individually or en masse – is irresponsible. It is also dangerous. Having threatened resignation the government may find it hard to save face without actually resigning.

Vast paintings

A painting of the Punakha Dzong has graced the banner of this website for about two weeks. The beautiful painting was created by Rajesh Gurung.

I saw Rajesh Gurung’s Punakha Dzong at the VAST gallery. It’s still there if you’d like to see it. And so are many other paintings, all by Bhutanese artists. I’ve uploaded photographs of a few of the paintings to tempt you to visit the VAST gallery.

Enjoy …

Great expectations

Tomorrow, registered voters in Thimphu, Gelephu, Samdrupjongkhar and Phuentsholing will elect their respective thromde tshogdes or city councils.

As we discussed in my last post, the Thimphu city council – the new mayor in particular – will have to sort out the capital city’s water problems.

But the mayor and his council will also have to attend to many other competing priorities. Sewerage, solid waste, public transport, roads, traffic, housing, schools, fire, parks and income generation are some of the issues that should demand the city council’s immediate attention.

The thrompons of Gelephu, Samdrupjongkhar and Phuentsholing will find that they too will have to address more or less the same issues.

But the biggest and most important responsibility of all four city councils will be to consolidate the powers and authority granted to them by the Constitution. Without these powers, the city councils will not be able to fulfill their Constitutional duties and obligations. And stand little chance of improving our cities.

The banner features the Thimphu City Corporation building, which will house the offices of its new mayor.

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.

Fundamental question

Last week, Kuensel reported that the prime minister had announced that:

… import of private light vehicles will be temporarily stopped until the Supreme Court comes out with a verdict on the government’s appeal.

My last entry, on interpreting the Constitution, made me wonder if the PM’s announcement to ban the import of private light vehicles is – you guessed it – constitutional or not.

Why? Because Article 7 Section 10 of the Constitution guarantees that:

A Bhutanese citizen shall have the right to practice any lawful trade, profession or vocation.

In other words, as long as your business is lawful, you have the right – a fundamental right – to conduct that business. And how can you tell if your business is lawful? By referring to relevant laws. But if the government has given you a license to conduct that business, that business must be legal.

A ban on the import of private vehicles would mean that certain businesses, licensed to buy and sell vehicles, would not be able to do business. That should make us ask, are fundamental rights being violated?

No blank cheque!

Check book

Business Bhutan recently reported that the prime minister had expressed his frustrations over interpretations of the constitution that were undermining the government’s work. The PM was quoted as saying:

I feel very emotional because we are the democratically elected government with a huge majority which means people have placed their trust fully in us but every time we want to do something the book is being thrown at us.

Our PM is correct. 67% of the electorate voted for DPT, and gave them, the ruling party, 45 of the 47 seats in the National Assembly. Yes, the government was elected by a “huge majority.” And yes, that means the “people have placed their trust fully” in the government.

But the people’s trust in the government, while overwhelming, does not give them carte blanche – a blank cheque to do as they please. Instead, the people expect, and the Constitution requires, the government to function in accordance with the laws of the land.

In his first state of the Nation address, 18 months ago, the PM had announced that the Constitution should not be used as a lagdep, i.e., a manual or guidebook. This is how I had responded to the PM’s concerns:

Our Prime Minister expressed concerns that the Constitution is being used as a detailed manual. And that interpreting the Constitution in rigid and narrow terms undermines good governance and weakens the government. He also reported that we should not unnecessarily invoke and test the Constitution.

I disagree. I firmly believe that we should constantly refer to the Constitution. And that, even if we don’t understand any other law, we should study the Constitution thoroughly. After all, the Constitution is the mother of all laws in Bhutan.

If disagreements arise in the interpretation of the Constitution – and they will be many differences – they should be discussed amicably and with the understanding that all parties involved want nothing but what is best for our country and our people. And, naturally, if these disagreements cannot be resolved the option to take the matter to the courts is always there.

If we feel that the government’s actions are in line with the Constitution, we must support them, especially if the actions are good for the country and the people.

But if we feel that the government’s actions may not necessarily be good for the country and the people, we must raise our voices.

And if we feel that the government’s actions are unconstitutional, we must “throw the book” at them.

Fundamentally right

Several readers didn’t agree with my suggestion that the government should pay more money for the land that they are acquiring behind the Tashichhodzong.

“Dorji Drolo” favours increasing the land rates only for the original inhabitants of Hejo, but fiercely opposes increases for the others, most of who would have purchased the land at much lower prices. “Dorji Drolo” also agrued that, since the land was “… earmarked for green area some 20 years back” the compensation rates were sufficient.

I agree with “Dorji Drolo” that the original inhabitants should be paid more, much more, for their land. Many of them have already contributed most of their land to the government. And some of them could now lose whatever little they still own. 26 of the landowners are original inhabitants. They should be paid more for their land.

But what about the rest? There are 36 of them. There’s no doubt that they would have purchased their land relatively recently and at much lower rates. And there’s no doubt that some of them would profit substantially. However, there’s also no doubt that some of them, especially civil servants, would have had to service loans for many years in addition to spending their entire savings to purchase the land. So they – yes, all of them – should also be paid more for their land.

Most of us do not own land in Hejo. I certainly don’t. So why should we worry if the landowners are not compensated sufficiently? Why should we get worked up? We should, because the issue is not just about land prices. It’s much more important. It’s about our fundamental rights!

As citizens of this country, we are guaranteed certain fundamental rights. These rights are enshrined in Article 7 of the Constitution. It is our collective duty and in our common interest to recognize and understand our fundamental rights. And, to fight for them.

Article 7 Section 14 of the Constitution, which sets down our fundamental right when the government acquires our property, guarantees that:

A person shall not be deprived of property by acquisition or requisition, except for public purpose and on payment of fair compensation in accordance with the provisions of the law.

To this, one commentator, “Lamakheno” asks:

BUT What is a “fair compensation?” For some, even the market rate may not be considered fair.

“…the provisions of the law” that Article 7 Section 14 of the Constitution refers to would include the Land Act, Section 151, according to which:

The valuation of the land and property shall consider the total registered area, registered land category, its current use, location in relation to accessibility to vehicular road, immovable property, local market value, and other elements such as scenic beauty, cultural and historical factors, where applicable.

If these conditions were applied faithfully, landowners in Hejo would be entitled to much more than the Nu 180.38/sft as “fair compensation” for their lands.

But the entire stretch of land that the government is acquiring was, as “Dorji Drolo” points out, “…earmarked for green area some 20 years back.” Correct. Except that the government did not acquire the land at that time. Nor did the government pass any law creating a new category of land called “green area”. And to make matters worse, the government has already compromised its construction ban on the so-called green area zone by permitting the construction of the Supreme Court in a green area.

“Lamakheno” also asks if:

… land acquired in the late 90s for constructing the sewerage tanks at babesa and the expressway construction should have been paid the same rate as the commercial price existing than in the same area?

And advises me not to:

… focus on the land behind Tashichhodzong alone but look at the national picture. Throughout the country, government has been, is and will be acquiring land for constructing schools, hospitals, roads, training centres, airports, offices, etc.

Yes, many people, throughout our country, have lost their land to the government for a wide range of purposes. The question is: did the government break any of the laws in effect when it acquired the land to build the sewerage tanks, the expressway, and the other infrastructure that “Lamakheno” talks about?

My answer: most probably not! The Land Act came into effect in 2007. And the Constitution came into effect in 2008. So unless the provision of some other law was broken, it would be difficult to argue that the compensation rates for these landowners would also have to be reviewed.

The Hejo landowners, however, have a convincing case. They have the Land Act to back them up. They have the Constitution. And they have fundamental rights.

On our part, we must, as “Sonam_t” notes, ensure that the government “protects our fundamental rights!”

ECB’s right

Testing times

The Election Commission of Bhutan is correct in cautioning the government that the local government elections would be incomplete and unconstitutional if those elections were conducted without first finalizing the yenlag thromdes (satellite towns).

Yenlag thromdes have still not been identified for the Dzongkhags. So holding the local government elections now would, as ECB maintains, result in incomplete Dzongkhag Tshogdus, and risk violating Article 21 Section 9 of the Constitution according to which:

The Dzongkhag Tshogdu shall comprise:

(a)            The Gup and Mangmi as the two elected representatives from each Gewog;

(b)            One elected representative from that Dzongkhag Thromde; and

(c)            One elected representative from Dzongkhag Yenlag Thromdes.

Local government elections have already been seriously delayed. As such, development work at the gewogs have suffered. And more importantly, two and a half years after the first general elections, our people continue to be deprived of the main benefit of the democratic process which is to elect and to hold to account their local leaders.

Yes, local government elections must be conducted as soon as possible. But the local governments so elected must be complete and must conform to the laws, especially the Constitution.

So I welcome the chief election commissioner’s announcement that the local government elections “could happen in the spring of 2011”. In the meantime, the government must finalise a complete proposal for yenlag thromdes in every dzongkag, and submit it to the next session of the Parliament scheduled for November this year.

And, one more thing: the government must desist from advocating the idea that certain parts of the Constitution do not have to be implemented immediately. The Constitution “is the Supreme Law of the State” (Article 1 Section 9), and, as such, it must be implemented immediately and in its entirety. Anything less is disrespectful to the Constitution and is dangerous for democracy.

In this regard, the government would be well advised to withdraw its statement, justifying local government elections without yenlag thromdes, that:

… the decision on whether all the conditions listed in the Constitution should be established immediately, regardless of the ground realities, should be left to the parliament and government

Photo credit: BBS

Implementing the Constitution

For the people ...

Several people have asked me for an English translation of the expression of gratitude that I had offered to His Majesty the King during the inaugural ceremony of the fifth session of the Parliament. A busy schedule, arising from the fifth session, distracted me from translating the statement.

But yesterday, after posting the entry about the signing of our Constitution, I suddenly decided that the translation had to be done immediately. Here it is …

Expression of Appreciation to His Majesty the King

Introduction. It’s been hardly two years since the introduction of democracy in our country. Democratic Constitutional Monarchy has started off well, and as such, our country has received considerable international appreciation and acclaim for a successful transition to democracy.

But more importantly, our people are already enjoying the benefits of the new system of government.

We have been able to achieve a great deal of development within such a short span of time, because of the blessings of the Triple Gem; the support of our guardian deities; the prayers of our clergy; the good fortune of our people; and because of the wisdom, foresight and guidance of His Majesty the Fourth Druk Gyalpo.

Most importantly, it is because of the noble deeds and exceptional accomplishments of His Majesty the King, Jigme Khesar Namgyel Wangchuck.

To most people, democracy means that the complete powers of governance are in the hands of the people. And, that is correct. But in order to administer these powers on behalf of the people, our Constitution accredits a range of institutions. These are, for example, the National Council and the National Assembly, the ruling party and the opposition, the Lhengye Zhungtsho and civil servants, the judiciary, and the Constitutional Offices. The respective powers, roles and responsibilities of these institutions are enshrined in the Constitution.

But of all these institutions, that of the Druk Gyapo is, by far, the most important. According to Article 2 Section 1 of the Constitution, “His Majesty the Druk Gyalpo is the Head of State and the symbol of unity of the Kingdom and of the people of Bhutan.”

All of us are fully aware of His Majesty the King’s noble deeds, actions and achievements. So on behalf of the opposition party, I would like to express our heartfelt gratitude by recalling a few of His Majesty’s accomplishments during the past two years. I thank the Honourable Speaker for allowing me to do so.

One: land. In accordance with Article 2 Section 16 (b) (The Druk Gyalpo, in exercise of His Royal Prerogatives, may grant … land kidu and other kidus), His Majesty the King has, during the last two years, traveled throughout our country to grant audiences to people living in our remotest gewogs and villages, and to personally experience their living conditions and greatest difficulties. [Continue Reading…]

Day of destiny

Profound

On this day, two years ago, His Majesty the King, by warrant under His hand and seal, sanctioned the Constitution of the Kingdom of Bhutan.

To commemorate the historic event I visited the Tashichhodzong earlier today. In its Kunrey – the sacred chamber where the Constitution was signed and officially took effect – I offered butter lamps and prayers, and reflected on how we, parliamentarians, have served or failed our Constitution so far.