Interpretation of constitution

Published on Feb 18 2009 // Commentary
By I. P. Adhikari

For years, Bhutan said there was no need for TV channels – either for the general mass or for the political leaders. Further, it was assumed that reading political stuffs from other countries – be they in newspapers or magazine or book – would invite chaos and disturbances in the country. Radio was made the instrument to relay what rulers said and did. Age-old isolation meant Bhutanese people had less assess to outside world – even less with the changing political environment. 

Injecting democratic values 

The National Assembly members

The National Assembly members

The deficiency of political consciousness – not alone in people but in political leadership – has begun to hunt the new born democracy in Bhutan. Even today, the hardcore nationalists claim the obvious object of King Jigme Singye was to transform nation into a parliamentary democracy peacefully. It is unclear, had there been any real interest to do so and had there been any effort to inject the ideas, values and procedures of democratic government in at least the probable political tycoons.

The nation has an apolitical upper house, a rarely practiced phenomenon in parliamentary democracies. Since the upper house National Assembly has greater attachment to sentiments of the King, for it has five nominees from him, the power tussle between the two houses has already surfaced. It was the first tussle of the first session of the first parliament of democratic Bhutan.

The first DPT government unveiled its incomplete (since the budget was later amended) financial bill at the lower house National Assembly after which the NC claimed it has the legal authority to have say in the bill. Being apolitical, the government sensed some intrigues from NC that could alter the provisions and programs in the budget thus forcing it to change some of the economic agendas and strategies. Resultantly, two houses quarreled on whether they have absolute authority to deal with the fiscal budget. 

Who should pass financial bill?

Budget is the financial bill and according to the constitution, both the houses have equal rights to debate and approve it, NC said. In response the DPT-lodged NA without listening, announced it endorsed the budget. In reality, the joint sitting of both the house remained divided on endorsing it and today, the budget is implemented without approval from the Upper House. The motive to subdue the voices from upper house was the fear the DPT government had that proposed projects for state support to the political parties and constituency development grants to Members of Parliament (MPs) could be chocked out. It was because the NC had termed these provisions as unconstitutional. The constitution restricts any state funding to political parties and constituency development budget to the politicians. Almost the year has gone by – only four months left to end the fiscal year– but still the two houses remain divided whether the budget should be reviewed and endorsed from the upper house as well. 

The cause is the result of rulers who isolated people from reading democratic practices from across the globe in the past. Now, the political leadership finds no alternatives to inviting Indian lawyer for interpreting Bhutanese constitution. In a sense, an expert hired for drafting the constitution certainly has advantage in interpreting the constitution but in other, his presence will have a prolonged impact on Bhutan’s constitutional practices indirectly authorizing the Indian experts as the final interpreter of our law. This is not just to demean our expertise but to undermine the role of Bhutanese judiciary on whose head lies the final authority to interpret the constitution.  

Legitimacy and the expertise of Chief Justice Sonam Tobgay have come to the foray with this initiative. The defenders may say it is the Supreme Court, yet to be constituted as provisioned by the constitution, that has the authority to interpret the constitution but it does not subscribe the fact that High Court currently serving as the ad hoc Supreme Court has no legality or authority at all on this matter. In addition, Sonam Tobgay was named the chairperson by King Jigme Singye to draft the constitution, which subtly suit to credit Tobgay for moving country into the constitutional monarchy. He could have helped what drafting team had discussed the issued during the constitution making process.  

The ghost continued to hunt the second session of the parliament. The NC members were adamant to dig up their right to have say in the budget procedures. The DPT dominated NA could resist no more pressure. Finally, the easy exit for the party is to have some experts speak about the issue. Then, NA eventually thought inviting India’s top advocate K. K. Venugopal to use his expertise to interpret what Bhutanese constitution says. 

The interpreter of the Bhutanese constitution

The interpreter of the Bhutanese constitution

What NA did came to the floor very late. Outsiders knew only recently why the debate on budget had abruptly closed without a compromising conclusion from the two houses. According to Venugopal, provisions of Article 13 and 14 of the Bhutanese Constitution follow the procedures for financial legislation similar to that of India – the country which endorses budget only from lower house.

According to the interpretation of Bhutanese constitution by this lawyer, the budget is first discussed in both the Houses and only the Lower House has the authority to vote on the categories of expenditures or the appropriation bill under the budget.

The assertion of NC has weight on one aspect that it has the authority to vote on the budget since it is a bill but it has also demanded that it should be sent to the King for endorsement, the practice set only in few democracies. 

Constitutional provision 

The constitution of Bhutan does not adequately explain whether budget is regarded as bill but in general practice, financial bill is used to define budget. But because this is yearly cycle, Financial Bill is different than other bills, which become permanent laws of the country upon endorsement. The constitution says in case of the urgent bills and budget, they shall be passed in the same session of the parliament. To note this side of the constitution, when it comes to the procedures laid for passing bills, budget is deemed to be a bill – the Financial Bill and has to go to King for assent upon approval from both the houses. 

However, Kottayan Katankot Venugopal said the word ‘bills’ is not qualified by the word ‘Budget,’ as a result of which the question of placing the Budget for the assent for the King will not arise. And this has been accepted by Bhutanese lawyers, faithfully. 

The concern is not about how budget is passed in parliament but is the measure taken for interpretation of the constitution. It is not necessary that Bhutan has to follow what India has. And this does not mean Bhutan should not follow what India has.

Interpretation of constitution has larger impact on national sovereignty. Had the National Assembly asked Indian lawyer about budget procedures in his country, issue would not have come to be debatable. Had these MPs who visited Denmark to learn parliamentary practices inquired about budget endorsement process in Europe, Bhutan could have set its own procedures for this. It is unseen factor whether they had ignored the issue or feared of lessening Indian influences in national politics. Denmark where MPs visited to take tuition on democracy and parliamentary practices, the single chamber of the people’s representatives passes the Financial Bill and is sent to Queen, the head of the state, for assent before the budget is implemented by the ruling party.

The National Assembly has the authority, by virtue and by constitutional provisions, to amend constitutions to suit the need and time. Debating on procedure and setting a constitutional provision would have been a better solution for the constraint than inviting a foreign lawyer for its interpretation. The Indian version of interpretation of our constitution has ceded sovereign authority and supremacy of interpretation of our constitution to India.  

Democracy has been established and people’s representatives have been adorned with authority to formulate laws, protect national sovereignty. It is their duty to determine how budget must be passed in the parliament, even if that needed amendment in constitution defining budget – whether it is to be regarded as bill or different.