Knowing the limits of one’s own authority – The Executive

This week, Kuensel news titled “Mines and Mineral Act to decide nationalization of resources” the Prime Minister said that he could nationalize the mines and minerals with “one stroke of a pen but he does not have the weapon to nationalize the resources as it will contradict the existing law. This statement is powerful and brings a fundamental question of the extent of the authority of the Executive. We know that the government issues numerous executive orders, circulars, notifications and has increased with the confirmation of Covid-19 in the country. Some of these orders included restrictions on people’s movement, restriction on the lawful trade and business, right to peaceful assembly or many other fundamental and legal rights. 

Article 20 (8) of our Constitution defines the extent of the authority of the Executive  where it states  the “executive shall not issue an 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.” This means every executive order, circular, rule of notification must be in line with the parliamentary act. Thus as a “ fundamental principle of law, and Executive Order may not contradict or supersede a statute or constitutional provision, and may not suspend, modify or revoke any statutory provision”  enacted by our Parliament as it may infringe on the legislative authority or violation of the doctrine of separation of power.  

Article 1 (13) of our constitution clearly defines the separation of power among the Executive, the Legislature, and the Judiciary. The “separation of powers provision serves the dual function of limiting the exercise of power within each branch yet ensuring the independent exercise of that power.”  Only the legislature has the power to enact any legislation unless it conflicts with the constitution.

This concept is well interpreted in a landmark case of Youngstown Sheet & Tube Co. v. Sawyer in the United States. The Federal Supreme Court held that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter”. The doctrine of the separation of powers is not to “promote efficiency but to preclude the exercise of arbitrary power.”  The separation of power is “not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three branches of the government to save the people from autocracy.”  This is even more true that with the introduction of democracy, too much power to the executive can lead to pleasing the party loyalties and party interests. Such decisions of the executive will gradually become more binding than law and the political figures will become too powerful.

Bhutan as a young democracy has such vulnerability considering our entire Lhengye Zhungtshog constituted from a single political party. Foreseeing such vulnerability, our constitution framers have provided the clear limits of executive authority to protect the true democratic values and ensure checks and balances. The news of the government’s rejection on the nationalization of mines and minerals from the doctrine of separation of power and limits of the Executive Power in the recent news is welcome. Such wise thought of our Lhengye Zhungtshog must continue.  

Sonam Tshering

Lawyer, Thimphu

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

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