Use of royal prerogatives
Bhutanese refugees have reacted with despair at the remarks made by Chief Justice Sonam Tobgey during the interaction program organized on the Draft Constitution in February 2006. In response to a query from the public whether or not it is appropriate for Bhutan to bring back the refugees from Nepal, the Chief Justice said, "the refugees are not Bhutanese citizens, according to the law of the country, and there was no need to discuss further since it had been discussed thoroughly by the representatives of 20 dzongkhags in several occasions in the National Assembly".
It is an unfortunate statement, nonetheless not unexpected at this juncture.
In our opinion he was speaking as per the National Law of Bhutan on citizenship issue. The 1958 Citizenship Law in item 7(b), which in its 1977 reversion, states under subheading Penalty for Violation of Rules (TA), section (1), that "Anyone having acquired Bhutanese citizenship involved in act against the king or speaking against the royal government or being in association with people involved in activities against the royal government shall be deprived of their Bhutanese citizenship". The Ministry of Home Affairs had invoked this clause at the time of issuing the order on 17 August 1990 to withdraw citizenship rights of those individuals involved in dissident activities outside the country and to convey to their family members that any political disturbances occurring in their villages would be the families' responsibilities. The southern Bhutanese did not understand the message in the official order; they participated in the peaceful mass demonstration in the following months, namely September and October.
The 1958 National Law also states under section 4 (c) that "if any person has been deprived on his/her Bhutanese Nationality or has renounced Bhutanese nationality, forfeited his/her Bhutanese nationality, the person cannot become a Bhutanese national unless His Majesty grants approval to do so". The spirit and contents of the Citizenship Acts are retained in the Draft Constitution. Article VI specifies under section (1) "A person, both of whose parents are citizens of Bhutan, shall be a natural born Citizen of Bhutan"; under section (2) "A person, domiciled in Bhutan on or before the 31st December Nineteen Hundred and Fifty Eight and whose name is registered in the official record of the Government of Bhutan shall be a citizen of Bhutan by registration"; and under section (6) spells out that the Parliament will not be able to overstep the provisions of this Article and Citizenship Acts by making amendments. This means the Constitution makes 1958 as the cut-off year.
The joint verification exercise conducted in Khudunabari camp has established 76% of the 12,500 strong eligible to return to Bhutan. Even under such strictest verification exercise, the majority of the refugees have proven that either they are natural born Bhutanese or citizen of Bhutan by registration. If we benchmark this finding for all the camps, which in our opinion would understate the outcome, at least 75% of the total refugee population will pass the test outlined in Article VI of the Draft Constitution or the provisions incorporated in the most recent, controversial 1985 Citizenship Act. The verified refugees could not get repatriated as planned from February 2003 because of the adamant position of the Bhutanese officials to stick to letters in the contents of the Citizenship Act, which states under subheading Re-application for Bhutanese Citizenship, section (1), that "In case a Bhutanese citizen, who having left the country returns and apply for citizenship, the Royal Government shall keep the application on probation for a period of at least 2 years. On successful completion of the probation period, the application will be granted citizenship provided the person in question is not responsible for any activities against the royal government."
The consternation of the refugee community to this condition was perhaps the main reason behind the hiccup in the repatriation process, and the only way to overcome this legal hurdle is to use the royal prerogatives. The question of reapplication arises only when the people had left the country voluntarily in normal circumstances. Section (3) under subheading Renouncement and Re-application for Citizenship states that " If anyone, whether real Bhutanese or foreigner granted citizenship, applies for permission during times of crisis such as war, the application shall be kept pending until normalcy returns". 70.6% of the verified refugees were placed in the category voluntarily emigrated, and it is be questioned why the Royal Government granted permission to leave the villagers in 1000s when south Bhutan was declared a disturbed area, and the Royal Bhutan Army was made in-charge of the civil administration. All these boils down to the point that there is no so called emigrated category; they were all compelled to leave the country, making them eligible to return to Bhutan as Bhutanese citizen with rights and privileges that comes therein.
Since the early 1990s the National Assembly has reposed full faith on His Majesty to solve the southern problem. The devolution of power to the districts and villages, handling of power to the cabinet council and unveiling of the draft constitutions are steps towards that direction. His thinking to find a way out from the refugee imbroglio is seen from his forthright response to a public query during the deliberation on the draft constitution at Paro in November 2005. His Majesty said, "The 1958 citizenship Act of Bhutan was enacted by the 11th session of the Assembly held in Paro Dzong. The 1958 citizenship chathrim was made when the government gave citizenship to the Lhotshampas. The Act however was not implemented properly by the government, and all those who had come to Bhutan after 1958, started claiming citizenship. This was the cause of the problem in southern Bhutan in the early 1990s".
It was King Jigme Singye Wangchuck who had declared during national day celebrations that "you people of southern Bhutan are not Nepalese of Nepal or Gorkhas of Darjeeling, you are Lhotsampa, as Bhutanese as anybody else in the Kingdom". It was him who had started giving Tika to Lhotsampa civil servants during Dasai festival; it was him who had agreed to provide resources for construction of a Hindu temple in Thimphu; and it was him who stated in early 1990 that there were genuine grievances of the Lhotsampa population with regards to representation in the National Assembly. Despite the setback of the 1990s, the commitment of His Majesty to make Bhutan home of all ethnic groups and religious minorities is reflected in Article III (2) of the Draft Constitution, which he defended in the public debate in Paro, that "it is the responsibility of the Druk Gyalpo, as head of state to uphold the constitution to be the protector of all religions". This response was to a suggestion from the Buddhist lobby to make king as the protector of Buddhist religion only.
(Dr Dhakal is is general secretary of Bhutan National Democratic Party)