Yesterday’s Kuensel had a headline “first-degree felony and above will not be granted bail”.

News this week was that the prime minister justified that the sale of tobacco through duty-free shops was not in violation of the Tobacco Control Act (TCA) 2011 as the “initiative was a temporary measure, and he felt that it was not illegal.”

Both these issues raise the question of obedience to the separation of power among the three fundamental institutions of democracy.

This is because the Supreme Court struck down section 199.8A of CCPC in the case of OAG v. Lhab Gyeltshen and others and OAG v.  Dorji Wangdue as violative of Article 7(16) of the Constitution and declared it null and void. Similarly, Article 20(8) of our Constitution prohibits the executive from issuing “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.”

 While under Article 1(11), the “Supreme Court shall be the guardian of this Constitution and the final authority on its interpretation” it does not necessarily mean that the Supreme Court has unfettered authority to interpret at its whims and fancies. For instance, Section 28.1 of CCPC mandates that courts must apply the literal meaning of law enacted by the legislature unless there is an ambiguity.  However, when it concerns constitutionality, the Supreme Court has the duty to uphold the values and wills of people of Bhutan.

For example, the “modern view is that bail is the rule and denial is the exception. The right to pretrial bail is based on the presumption of innocence enjoyed by the accused, and thus its denial to inflict punishment on the accused would not only hamper the preparation of his case but would render meaningless the presumption of innocence.” This makes the Supreme Court decision in nullifying Section 199.8A seem to be within the ambit of boundaries of judicial authority.  The legislature has essentially defied the decision of the Supreme Court in the current amendment as it contradicts the judicial decision.

Article 1(13) of the Constitution provides a clear separation of the Executive, the Legislature, and the Judiciary, and “no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution.” The separation of powers is “to prevent one branch of government from exercising, infringing upon, or usurping the powers of the other two branches or avert the danger inherent in the concentration of power in any single branch or body, no branch may exercise the functions delegated to another branch.”  Further, separation of power serves as “means of the inevitable friction incident to the distribution of the governmental powers to save the people from autocracy.”

To ensure the checks and balances provided under Article 1(13) of our Constitution, Article 10(1) vests our Parliament with all legislative powers, and Article 20 vests the executive with the power of governance without any legislative authority unless delegated by the legislature.

Similarly, Article 21 (1) vests the judiciary to administer justice independently without fear and favour in accordance with the rule of law. Hence, any undesirable friction among these three institutions will be detrimental to democratic values. Each arm of the government must abide by the constitutional boundaries to build a vibrant democracy for the nation, the ultimate vision of our monarchs.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.