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.

 

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?

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!”

Paying for land

priceless

It’s autumn. And the Tashichhodzong, when viewed from the North, looks beautiful. Tidy terraced fields, lush with golden paddy present a perfect foreground for Thimphu’s auspicious dzong. Many generations of travelers before us would have, no doubt, taken in almost exactly the same tranquil view.

And thanks to the government’s plans to maintain that lovely stretch of land, many generations of travelers after us could also enjoy the uninterrupted view of the dzong. To ensure that that piece of property stays as it is, the government has decided – and rightfully so – to acquire 42.32 acres of farmland in Hejo.

But the owners are not happy. They feel shortchanged.

The original inhabitants complain that they’ve already lost most of their land to the government. The National Assembly, Royal Banquet Hall, Centre for Bhutan Studies, Jimithang barracks, golf course, cremation grounds, and Wood Craft Centre all stand on land that once belonged to them. They point out that the compensations they received were never sufficient to purchase land of similar value elsewhere. And they worry that, once again, they are being compelled to give up their lands at undervalued prices.

They know that the Constitution and the Land Act allow the government to acquire their land for “public purpose”. And they agree that securing and maintaining the space around the Tashichhodzong is important. But they are unhappy with the price that the government has fixed for their land. They do not see it as the “payment of fair compensation” that the Constitution guarantees them.

So how much are they being paid? Nu 180.38 per square foot.

And why are the land owners not happy? Because Nu 180.38/sft is a pittance. By comparison, land in Jungzhina, which is upstream and further from the city centre, fetches Nu 600/sft; land in Taba, which lies even further upstream, costs Nu 600/sft; and land in relatively distant Kabisa already costs Nu 300/sft. Downstream, in Olakha, which is further from the city centre than Hejo, land prices are soaring at Nu 1000/sft for residential plots and Nu 1700/sft for commercial plots.

It’s no wonder that the land owners in Hejo are unhappy. The Nu 180.38/sft is nowhere near what they would need to buy comparable land anywhere else in Thimphu.

The property assessment and valuation agency (PAVA) appraises and fixes property prices for the government. And PAVA’s rates for Hejo are low because most of the land lie in the so-called “green area”, a zone on which government policy supposedly prohibits all construction. PAVA’s reasoning is that if you can’t build on your land, then your land can’t be worth too much.

But PAVA’s argument has two drawbacks. First, the government has allowed construction in the green area. The Supreme Court is currently being built on the 10.75 acres of green area, also in Hejo, that the government acquired from 28 owners at Nu 150/sft. So the land owners argue that, since the government can easily change policies to allow construction in so-called green areas, their land should be worth much more.

And second, there isn’t any legal provision allowing land to be categorized as “green area”. Section 19 of the Land Act recognizes 8 categories of private land – chhuzhing, kamzhing, cash crop land, residential land, industrial land, commercial land, recreational land and institutional land, but no land category for green area.

The government is correct in acquiring the land to protect the Tashchhodzong. But the Hejo land owners should not have to bear the brunt of the cost of doing so. Most of them are farmers. And many of them have already lost a lot of their land to development.

Instead, the government should advise PAVA that “green area” is not a legal land category, and that, as such, they should revise their valuation of the Hejo land.

Meanwhile, I’m writing to the minister of finance, urging him to protect the fundamental right of land owners as enshrined in Article 7 Section 14 of the Constitution:

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.

Adverse opinions

Should civil servants be allowed to express adverse opinions about the Government? 93% of those that took the the last poll answered with a resounding “Yes!”

Now our polls are not scientific, and their results may not necessarily represent popular opinion. Still, and particularly on this issue, legislators, the Government and the RCSC would do well to reflect on the results.

The Constitution grants every Bhutanese citizen with the fundamental right to “…freedom of speech, opinion and expression.” And yet, the Civil Service Bill, which the National Assembly passed last year, requires civil servants to “Refrain from publically expressing adverse opinion against the Royal Government.”

The Civil Service Bill will be discussed in the National Council during its next session, sometime in May this year. So if you feel strongly about this issue and if you want to protect the “freedom of speech, opinion ad expression” of civil servants, talk about it to senior civil servants. And tell them to discuss the matter with the Royal Civil Service Commission.

But, more importantly, talk to your representatives in the National Council. And tell the how you feel. Telephone them. Write to them. Meet them.

On my part, I will request the Human Rights Committee to review if the Civil Service Bill undermines the fundamental rights of civil servants.