Stop digging!

Listen...don't dig

Denis Healey, a British politician, once famously said: “When you’re in a hole, stop digging.”

Digging. That’s what the government is doing by issuing guidelines to relax the implementation of the controversial Tobacco Control Act. According to the guidelines:

Any Bhutanese bringing in tobacco products, more than the permissible quantity for personal consumption through designated port of entry, will not be directly charged for smuggling, but would be levied a 200 percent tax.

The excess quantity would be seized, the citizenship identity card number noted, so that the offender would be charged on the second attempt to bring in more than the prescribed limit.

Why do the guidelines amount to “digging”? There are several important reasons:

First, the government does not have the authority to grant exceptions to the Tobacco Control Act. According to the Act, any person found selling or buying tobacco products “… shall be punishable with misdemeanor if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanor.”

The law is straightforward. And the government must not undermine it. Doing so, like granting exceptions to first time offenders – letting them off with a small fine – could amount to interfering in the judicial process.

Second, why did the police draft these guidelines? That’s not their job. It’s the Bhutan Narcotics Control Agency’s job to make rules for the implementation for the effective implementation of the Tobacco Control Act. And why did the cabinet approve the guidelines? That’s not their job either. Their job is to ensure that the rules made by the BNCA are in line with the provisions of the Tobacco Control Act.

And third, what happens to the 27-odd people already under detention. Some of them are being tried. And some, as we know, have already been incarcerated.

Through the guidelines, the government has now admitted that possessing illegal tobacco for personal consumption is a trivial offense, one that should carry a fine of only 200% of the cost of the tobacco. If so, amend the Tobacco Control Act.

The 7th Session of the Parliament has just begun. So if the government proposes an “urgent bill” to amend the Act, there’s enough time to discuss and amend the Act in this session itself. Otherwise, at least begin the process in this session. In the meantime, get BNCA to take another look at their rules. And stop digging.

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 …

Totally redundant

Yesterday, the National Assembly passed the Sales Tax, Customs and Excise (Amendment) Bill, and the Public Finance (Amendment) Bill. The two of us in the opposition party had argued that the bills would violate the Constitution, and, in the end, only the two of us voted against the bills.

The two amendments could allow the government to impose and raise taxes without having to seek the Parliament’s approval.

The bills will now be forwarded to the National Council, who will discuss them in the next session. If they pass the bills, the amendments will come into effect. If not, the bills will be submitted to a joint sitting of the Parliament.

Now here’s the strange part: the government’s legislative maneuvering is totally redundant.

Why? Because the Supreme Court will soon consider the first constitutional case, and rule whether or not the Constitution permits the government to impose taxes without fist passing it through the Parliament.

If the Supreme Court rules that the Constitution does, indeed, empower the government to impose and revise taxes without the Parliament’s approval, it would have been unnecessary to amend the existing laws in such a hurry.

But if the Supreme Court rules that, according to the Constitution, the government must seek Parliament’s approval before imposing and revising taxes, the amendments that the National Assembly passed yesterday would automatically become null and void.

The Supreme Court is the guardian of the Constitution and the final authority on its interpretation. We should have let them do their job, instead of jumping the gun, and becoming redundant.

About administrative action

The second issue in “Administrative action” asked if prime minister had the authority to issue “… directives to the home ministry, the judiciary and the police to take appropriate actions against the senior dzongkhag officials.”

Again, several of you felt that, as head of the government, the prime minister does have this authority. And again I refer to the laws of the land.

Chapter 19 of the BCSR is dedicated to administrative discipline in the civil service. And in its pages are contained procedures for the identification, investigation and adjudication of offenses by civil servants, all powers for which are vested in the RCSC. According to Chapter 19, Section 2.2.1 of the BCSR:

The RCSC shall enforce all rules & regulations and laws governing the discipline of a civil servant.

Section 2.5 of the same chapter goes on to state that:

The powers to impose both minor and major penalty on the Secretary and Head of the Autonomous Agency shall be exercised by the RCSC.

And, as noted in the previous post and defined in the BCSR, agencies include dzongkhags.

If civil servants transgress, they must be punished. But, for better or for worse, existing rules dictate that RCSC should levy the punishment. Not the home ministry. And not the prime minister.

And what of the judiciary? If judges misbehave, they too must be bought to account. And, in their case, in accordance with the Judicial Services Act. But can the prime minister “direct” the judiciary to take action against a senior judge? Absolutely not. Not if the judiciary is independent of the executive.

Precious gifts

His Majesty’s birthday gifts to the people of Bhutan: a vibrant media and a strong judiciary for a successful democracy.

Protecting our judiciary

Wanted: more protection

Well protected?

On 9 June, Kuensel reported that the selection of the new DDC secretary may have violated the RCSC’s position classification system. If this is the case, RCSC should look into it.

I have no problem about a member of the judiciary applying of a civil service post, and the RCSC accepting that person’s candidature, or selecting that person. No problem that is, as long as both the Judiciary’s rules and the RCSC’s rules are followed.

So the RCSC may wish to ensure that due process was followed.

RCSC should also consider if it has infringed on the independence of the Judiciary. Earlier the RCSC had issued a “transfer and appointment order” transferring a senior judge out of the judiciary and appointing him as a secretary in the civil service. But, according to the Constitution and related laws, RCSC does not have administrative powers on the Judiciary. So it cannot order the transfer of a judge. Doing so would compromise the independence of the Judiciary. And that, put simply, is very dangerous.

So the RCSC must retract its “order”. And apologize.