Indicating that it may take the government to court, the Druk Nyamrup Tshogpa (DNT) has started consulting legal experts and lawyers on the constitutionality of the fiscal incentives granted before May 8, 2017.

Issuing a press release yesterday, DNT stated, “We insist that they step down on moral grounds or face the law.” DNT stated that although the party does not see itself as either winners or losers but the national issue must be resolved once and for all.

“So we will find a harmonious way to resolve fiscal incentives issue. DNT has started consulting legal experts and lawyers for the next course of action to protect the Constitution and resolve this national issue to its logical conclusion in a harmonious way,” the press release stated.

The press release was issued in response to the Prime Minister Tshering Tobgay’s recent statement on BBS and at the Meet the Press that government did not breach the Constitution by granting the fiscal incentives without the parliament’s approval from January 1, 2016 to May 7, 2017. He said that DNT’s accusation of constitution violation, in an earlier press release, was made without understanding of the law.

In its effort to hold the government to account, this was the second press release DNT has issued on the fiscal incentives issue.

The press release states, “There is no ambiguity in the laws and the Prime Minister is not above the law. It is the sacred responsibility of every single Bhutanese to defend the Constitution.”

And as a registered political party, DNT stated that it was a “mandated duty” of any political party to defend the Constitution. “DNT understands the repercussions of such an unpopular action, but we have to do our mandated duty even if it costs us politically,” DNT stated, adding that it was the fundamental duty of a political party to defend the Constitution.

The party stated the Constitution is a precious gift from the Golden Throne to the people, and that as the political party having secured 17 percent of the national votes in 2013, the onus of defending the Constitution had fallen on DNT’s shoulder. The press released described DNT as the third largest party.

“The PM intentionally violated the Constitution and, when exposed with evidence, attempted to defend it by deliberately misleading the people, concealing important and crucial legal provisions,” the press release reads. “Even more dangerous is his usurping the power of Judiciary by misquoting and wrongly interpreting the finding as the decision verdict of the Supreme Court.”

The party also stated that Prime Minister Tshering Tobgay tried to find excuses by making “condescending remarks” about DNT, the Opposition and the National Council. “We are saddened with the way PM dismissed the democratic views of Opposition, National Council and DNT- with total disregard and arrogance,” it stated.

The press release further reads, “DNT is worried that such responses from our PM only reflected his interest to protect himself and the flaws of his government and disregarded the very basic values and principles of our growing democracy.”

DNT stressed that the issue is not about the Prime Minister or DNT or the National Council or the Opposition, but about the breach of the Constitution, the supreme law of the land. This is a serious issue of national importance. DNT reiterated that it stands firm that the government has “intentionally violated the Constitution” and that it is committed to hold the Prime Minister and Finance Minister Namgay Dorji accountable.

DNT’s Grounds 

Article 14.1 of the Constitution: “Taxes, fees and other forms of levies shall not be imposed or altered except by law.”

DNT stated that tax holidays to certain businesses were provided by the present government from January 2016 without passing it as a law. “Tax” holiday, DNT says, is tax, where tax rate is altered to 0 percent.

“Tax is tax. The National Assembly’s decision to pass the fiscal incentives (tax holidays) as a law is binding only from May 8, 2017, the day it was tabled in the Parliament. “Therefore, there is a clear violation of the Constitution.”

Another ground for accusation is Article 14.3 of the Constitution, which states, “Public money shall not be drawn from the Consolidated Fund except through appropriation in accordance with the law.”

According to DNT, the PDP Government misusing public money from the Consolidated Fund or forgoing public money for the Consolidated Fund is a clear violation of the Constitution.

DNT stated that the Prime Minister’s “deliberate misquoting of just the court’s finding as Supreme Court’s verdict decision is misleading” people and misinforming the nation. “PM’s allegation that the Supreme Court has authorized the government of the day to “declare and grant fiscal incentives” is not there in the decision of the Supreme Court.”

The Prime Minister, DNT stated, is “deliberately misleading” the people by quoting the background “findings” of the court, which is not the verdict “decision” of the Supreme Court. The Supreme Court’s “decision” on the first constitutional case, DNT says, was unambiguous that “under no circumstances the authority to impose or alter taxes may be delegated to the Executive”.

DNT argues that the Prime Minister overlooked Section 46A and 46B of the Public Finance (Amendment) Act 2012, which states that the “imposition or increase of any tax or abolition, reduction or remission of any existing tax” can be done by enacting as law by Parliament. “The PM wrongly informed that no amendments were made in any of the Acts regarding fiscal incentives (tax holidays).”

According to the press release, the principle of the Public Finance Act 2012 eclipsing older laws nullifies all the contradicting sections made in the Income Tax 2000, Sales tax, Customs and Excise Act 2000 and the Public Finance Act 2007.

The Prime Minister earlier said the fiscal incentives it granted are legal and constitutional both by law and precedence. He said granting of fiscal incentives are not alteration of taxes.

Explaining the government’s interpretation of the law and the first constitutional case’s verdict of 2011, the prime minister said that while only the parliament can impose or revise taxes, it is the government’s prerogative to grant fiscal incentives.

MB Subba