The government’s decision to remove the cut-off point for class X students has, among others, raised questions on its constitutionality.

While the government since the campaign days has maintained that removing the cut-off point and providing free education until Class XII does not violate the Constitution, the Opposition has said that the policy change may have breached the Constitution.

Both the government and the Opposition appear to be correct while legal practitioners remain divided on legal interpretation and implications.

Article 9 Section 16 of the Constitution states: “The State shall provide free education to all children of school going age up to tenth standard and ensure that technical and professional education is made generally available and that higher education is equally accessible to all on the basis of merit.”

The government argues that the Constitution mandates the state to provide free education up to Class X and should the government be able to afford it, it could raise free education up to Class XII.  The Class X standard, according to legal practitioners was specified in the Constitution so that future governments did not reduce it below the requirement of basic education.

In his book, The Constitution of Bhutan, Principles and Philosophies, the Chairman of the drafting committee and former chief justice Lyonpo Sonam Tobgye explained that the submission of raising the level of education up to 12th standard at the first parliamentary session was not considered because education was expensive. “Moreover, there will be legal and economic ramifications,” he wrote.

This explanation and the use of the word “shall”, meaning mandatory in legal parlance in Section 16, validate the Opposition’s argument on the breach of the Constitution.

However, in the next paragraph, Lyonpo Sonam Tobgye writes, “Their Majesties also mentioned that if Bhutan has enough funds, the government could continue to support students to pursue their studies up to university level.  It is a pious expression of constitutional will and hopefully, a strong economy will help achieve the aim.”

This means, should it be affordable, the government could provide free education beyond Class X and not violate the Constitution.

A legal practitioner said that when the section is read in isolation, it does appear to violate the Constitution. “But a competing argument is that the section is under state policy, which is not justiciable.”

Article 9 – Principles of State Policy, according to legal practitioners, are mandated aspirations to guide the government in policymaking but not enforceable and legally binding.

Lyonpo Sonam Tobgye writes, “The principles of state policy embodied in this Article are directions to the government to guide the establishment of a just society, and endeavour for the attainment of Gross National Happiness. They are the active obligations of the State, which the government must have in mind while framing laws and policies.”

While the government and the opposition are holding onto the selected paragraphs of the former chief justice’s book to support their positions, questions remain.

Providing free education up to class X is state policy and raising it further subject to availability of state resources.  This means, the state is not obligated to provide free education after Class X. But does providing free education up to class XII mean raising the level of basic education from Class X?

Observers said the fulfilment of promises must have accountability for positive results in the society such as employment, nation’s progress and national relevance. Providing free education without skills to fulfil a political promise does not necessarily meet the needs of the society. So are political pledges policies?

The constitutional precedent this policy change would set also raises questions of whether this principle is as applicable to other provisions of the Constitution? If this is applicable and because it is a state policy, can a government also bring the level of free education to Class VIII?

Legal practitioners argue that the principle of not justiciable means it is subject to any conditions the state may have.

According to them, the question is now about whether a policy decision becomes subject to state policy and if providing free education up to Class XII becomes unconstitutional?

The issue of constitutionality was not debated in the parliament and has to be now tested through litigation. With the Opposition stating that it would not move court, it now remains an open constitutional issue.

The bigger question then is – who would challenge this constitutionality issue?

Sonam Pelden