Rules that no institution can seek the SC’s opinion

The High Court (HC) yesterday dismissed the constitutional case Druk Nyamrup Tshogpa (DNT) filed in August this year against the government stating that the party does not have locus standi to file a case on fiscal incentives (FI).

Locus standi loosely means the right or capacity to file a case in court.

DNT moved the High Court on August 18 seeking an order of constitutional writ to declare the action of the government ultra vires, meaning beyond the powers, in granting fiscal incentives in the form of tax holiday to some of the selective businesses in violation of Article 14, Section 1 of the Constitution and thereby posing burden on the consolidated fund.

The larger bench of the court with six of its seven justices sitting under the watchful gaze of the large hanging portraits of Kings, deities and former justices, delivered the judgment in the chilly courtroom.

The court stated that DNT has no jurisdiction to file a constitutional writ as it is not a party who is directly harmed or has the right to invoke ‘class action suit’ as per Section 149 of the Civil and Criminal Procedure Code (CCPC), and declared the lack of ‘locus standi’ or legal standing” as per Section 31.2 of the code.

“Under these provisions, only a person or class of individuals, whose rights are directly affected or who suffered an actual injury has the legal standing to sue,” the judgment stated.

DNT had claimed that it represents 17 percent of the voters who have voted for them in the primary round of the elections in 2013. The High Court ruled that DNT’s invocation of ‘legal standing’ based on Article 21, Section 18 and Article 7, Section 23 of the Constitution is not tenable.

Citing provisions of the Constitution, the court ruled that the role of other political parties, besides the ruling and the opposition, is confined during the period of election. “Once the two political parties, based on people’s choice, become the ruling or opposition, they solely become answerable to the people,” the judgment stated.

The submission of DNT that the party is answerable to the voters who voted in the primary round of election becomes indirect and remotely connected as the mandate of the government is based on popular sovereignty.

The Supreme Court in the first constitutional case between the Government vs. Opposition in 2010 ruled that “…Filing of a petition against the Government by the Opposition Party and individuals who have locus standi and a concrete case or controversy must be allowed.”

The HC judgment stated that to uphold the binding precedent, the petition must be filed by those individuals who are directly affected and not by the political parties who are outside the purview of the Parliament.

The court cautioned that any money bill particularly granting fiscal incentives that stretch over a longer period extending beyond the term of the government to be cautiously vetted on the intended mandate of the government.

“The Court observes that any fiscal incentives be based on the “Principles of State Policy” enshrined under Article 9, Sections 7, 8, 9 and 10 of the Constitution and governments must endeavour to promote such principles,” it stated.

The political and constitutional mandate of a particular government is term based and therefore, the court observed that any past fiscal incentives or schemes should be subject to review, if necessary, by the succeeding government and subsequently ratified by the Parliament through amendment or by way of introducing a new money bill on those past fiscal incentives.

“Therefore, in the words of His Majesty, the democratic system should be subject to constant evaluation, nurturing and finding solutions to issues through consensus, engaging the collective wisdom of Parliament and other relevant institutions for which the court’s intervention should be the last resort,” the judgment stated.

While DNT’s manager, Phurba, said that the party would give its views on the judgment at a press conference today, attorney general (AG) Shera Lhendup said that his office respects the ruling.

“Our Constitution gains more strength every time such rulings are held by our courts to impart clarity and certainty on contested issues,” the AG said.

He said that when the concern of the State is to settle correctly the contested legal issues, winning or losing is subsumed by the need for a correct ruling by a competent court. “The High Court order today has just delivered us that and the rulings held by the court immensely help the general public in appreciating legal consequences.”

On the multiplicity of suits and if it is healthy to have litigations of such nature, he said that the sole interest of the State is to progress its people. It is not consonant to be stagnated in the quagmires of individual clamouring and lose sight of the better horizon, he said. “DNT’s democratic assertions to file suit is to be appreciated but at the end, we are all bound to play our respective roles by the rules of law.”

No institution can seek Supreme Court’s opinion

While the case was on the constitutionality of granting fiscal incentives, the High Court’s judgment corrected the government’s move to appeal to His Majesty to seek the Supreme Court’s opinion.

This, the court said, was illegal.

The OAG challenged the jurisdictional competence of the High Court as the Government has petitioned His Majesty The King on August 16 for consideration to obtain the opinion of the Supreme Court on the issues of fiscal incentives granted until May 2017 by the present and previous governments.

The OAG argued that Article 21 section 8 of the Constitution provides constitutional means to resolve legal matters of public importance through non- litigious means and provides an exclusive advisory jurisdiction of the Supreme Court on the matters referred to it for its opinion. It submitted that the original jurisdiction of the High Court stands in abeyance when the same subject matter is in pendency or under motion before the Supreme Court.

Article 21, Section 8 of the Constitution states, “Where a question of law or fact is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, the Druk Gyalpo may refer the question to the Supreme Court for its consideration, which shall hear the reference and submit its opinion to Him.”

The High Court judgment stated that this provision provides explicit jurisdiction of the Supreme Court when referred to by His Majesty The Druk Gyalpo, which, is also legally termed as an “abstract judicial review”, or seeking an “advisory opinion” of the Supreme Court. “Only His Majesty The King has the prerogative to seek an advisory opinion from the Supreme Court,” the judgment stated.

The judgment also cited the Supreme Court’s ruling in the Government Vs. The Opposition that ruled “Under the Constitution, only His Majesty The King has been provided with the authority to command ‘abstract judicial review’ as provided under Article 21 Section 8 of the Constitution.”

The delineation of powers on lawmaking and procedure established under Article 13 of the Constitution allows addressing legislative issues through legislative procedure while the power vested upon the Prime Minister and the executive government is clearly defined under Article 20 of the Constitution. The delineated function of a court is to answer questions of law or fact when properly raised before it in a dispute between parties.

However, Article 21 section 8 confers an exceptional or particular jurisdiction also referred as “consultative or advisory jurisdiction on the Supreme Court to give its opinion on questions unconnected with a pending case.” “For this purpose, only His Majesty has the prerogative to refer to the Supreme Court a question of law or fact which in His opinion is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court.”

The power to obtain the opinion of the Supreme Court is bestowed upon the Head of the State. “Therefore, the Prime Minister, as the head of the executive branch of the government and belonging to a political party, cannot obtain the opinion of the Supreme Court, as it would violate the cardinal principle of separation of powers.”

The judgment stated that only His Majesty can command for such an “abstract judicial review” and that too if His Majesty may pleased be desired as per the decision of the Supreme Court in Opposition Vs Government case.

“Therefore, Article 21 Section 8 of the Constitution provides clear legislative intent that “abstract judicial review” from the Supreme Court can be referred only by His Majesty and for this His Majesty is not bound to act on the reference of the Prime Minister and for that matter any Government, be it present or future, shall not have jurisdiction to seek intervention of His Majesty The King under the said provisions of the Constitution.”

On this ground, the court dismissed the OAG’s claim that the fiscal incentives issue is sub judice.

The High Court ruling did not focus much on the main contention of the case as it found that the petitioner had no legal standing to sue.

Fiscal incentives refer to a temporary exemption of taxes and duties or granting income tax holidays for boosting private sector development and attracting foreign direct investment to achieve broader economic development goals. The Cabinet approved the FI 2016 on May 8 this year.

The parties have 10 days starting today to appeal the judgment at the Supreme Court.

Tshering Palden