Legal experts and parliamentarians remain divided on the legality of the government’s decision to replace Zhemgang with Sarpang as one of the tourism flagship dzongkhags.
The issue arose after the government through a June 14 letter approved the proposal from the Tourism Council of Bhutan (TCB) to include Sarpang in place of Zhemgang.
On June 10, the National Assembly had already adopted the Budget Appropriation Bill, 2019-20 with all ‘Yes’ votes from the 43 members present and voting.
The National Council and the Opposition raised concerns on the legality of the decision to swap Zhemgang for Sarpang. The Opposition went further to accuse the government of politicisation.
The Council called on the government to reconsider its decision because the switch contravenes the Budget and Appropriation Act 2019-20. It argued that the National Budget Report 2019-20 is “deemed legally binding” on the government to ensure implementation of the activities and programmes as per the allocation.
The Opposition followed suit and wrote to the Speaker to revoke the government’s decision and maintain the tourism flagship programme for Zhemgang as approved in the Budget and Appropriation Bill. It stated that the government’s decision violated Article 14 (2, 3) and Article 20 (8) of the Constitution and Sections 57, 58, 59, 60, 61 and 62 of the Public Finance Act.
With the government and the opposition firm on their stands, the issue besides pitching Zhemgang against Sarpang has also questioned the powers of the legislature and the executive. In this whole debate, the TCB secretariat has however, remained silent.
According to the Office of the Attorney General (OAG), the legal advisor to the government, granting approval of funds is the prerogative of the Parliament. After granting the approval, the OAG states that it comes under the purview of the executive to manage these funds within the ambit of laws.
Legal experts say that the bill was voted on by the members of parliament including those from the ruling party and the executive based on the proposed activities. Once the parliament passes a law in the form of a bill, they said, it becomes binding on the executive.
The OAG argues that the Lhengye Zhungtshog is empowered to make policy changes as well as revisions in the budget allocations on the condition that the revision is based on significant changes in national interest and subject to presentation of the revised budget for ratification in the next sitting of Parliament.
Observers say the Cabinet is empowered to make policy decisions and changes before the bill is tabled in the parliament for discussion. These policy decisions and changes should be made when the budget report is drafted, not after the bill is passed by the parliament. “If the Cabinet can re-appropriate allocated budget the parliament passed, then there is no need to even pass the appropriation bill.”
Article 20(8) of the Constitution states, “The Executive shall not issue any executive order, circular, rule or notification which is inconsistent with or shall have the effect of modifying, varying or superseding any provision of a law made by Parliament or a law in force.”
If this Constitutional provision is to be read in isolation, the OAG agrees that the decision to replace Zhemgang with Sarpang would seem inconsistent with the Budget and Appropriation Act 2019-20.
“However, it is compelling for this provision of the Constitution to be read in conjunction with other provisions of the Constitution and laws, as required by the Constitution itself,” the OAG states.
In this case, the OAG cites Article14 (10) of the Constitution, which states that, “Any expenditure not included in the budget, or in excess of the budget appropriation, as well as the transfer of any fund from one part of the budget to another, shall be made in accordance with the law.”
Accordingly, the OAG states that, Section 56 of the Public Finance Act on revision of budget and appropriations, specifies that “The Minister of Finance may present to the Parliament revised Budget and Appropriation Bills, outlining changes in appropriations and resource estimates, with full justifications for the revisions. Such bill shall be introduced to the Parliament at the earliest sitting of Parliament after the last sitting.”
“The consideration for any revisions to the Budget Appropriations may be carried out only when circumstances have changed significantly, which among others include any other expenditure on an activity, which is of national importance as approved by the Lhengye Zhungtshog,” the OAG argues.
Legal experts say that even in cases of national importance, which is subject to debate, due process has to be followed because the stakes are higher. “Only the Parliament can make and unmake laws with due process,” said one. “This is not a policy issue; the government and the opposition cannot take refuge behind politics.”
Section 59 of the Public Finance Act, according to the OAG provides that apart from “Section 66, no budgetary body shall make commitments or shall incur expenditure against supplementary budget proposals in anticipation of the approval of the proposal until the revised Budget and Appropriations Bill has been passed by the Parliament, in accordance with Sections 46(D) to 46(I) of this Act.”
The OAG argues that there is a distinction between revision in appropriation of budget that exceeds the amount approved by the Act and in revision of appropriation of budget within the amount approved. Section 59 of the Public Finance Act, it states, is applicable only when there is revision in budget that exceeds approved budget by the Budget Appropriation Act.
The OAG determined that revisions and alterations in planned activities that do not exceed the total amount approved by the Budget Appropriation Act do not amount to disregarding the supremacy of the Parliament, but instead only amount to utilising the flexibility granted by Article 14(10) of the Constitution and Section 57 of the Public Finance Act.
“To simply question the constitutionality of a decision based on Article 20(8) of the Constitution alone would be a narrow interpretation that limits not only the scope of the Constitution but the provisions of the Public Finance Act,” the OAG states. “The conclusive test must be based on the justifications of significant national importance by the budgetary body (TCB) before replacing Zhemgang with Sarpang and subject to approval of the Lhengye Zhungtshog upon recommendation of the finance minister.”