No second thoughts on Constitution: former CJ

… says Constitution good for another 50-100 years 

Law: Laws that change constantly have no obedience, said the former Chief Justice Sonam Tobgye quoting the ancient Greek philosopher Socrates.

He was responding to a question from the foreign minister, Damcho Dorji, who had asked the speaker if he had second thoughts on any Article of the Constitution.

The former chief justice was speaking at the Royal Institute of Management (RIM) in Thimphu to mark the 125th birth anniversary of Dr B R Ambedkar, the Indian social reformer, on March 5.

The former chief justice, who was the chairman of the Constitution drafting committee, said that a certain number of years are needed before any changes to the country’s supreme law can be made.

“We tried our best to give a document that will stand at least, in the words of His Majesty, 50 to 100 years,” Sonam Tobgye said.

Lyonpo Damcho Dorji asked if there were any second thoughts on any of the provisions. Citing an example, he said emergency powers granted in the Indian Constitution have been criticised by many for overthrowing the power of state governments.

In the Bhutanese context as well, he said the Constitution empowers the government during an emergency to override the fundamental rights granted under Article 7. Article 33 of the Constitution allows the government to suspend some of the fundamental rights of citizens during an emergency.

Lyonpo Damcho Dorji was of the view that there is a possibility that an “arbitrary and aggressive government” in future may take advantage of this constitutional provision to violate some of the fundamental rights.

“If there is anything that I would like to amend, I would like to proudly say No,” the former chief justice said.

He explained that the clauses relating to suspension of fundamental rights were carefully drafted keeping in mind the criticisms of such clauses in other constitutions. If the government has overriding powers and tries to amend the Constitution during an emergency, he said that would not happen as the emergency will last only for 21 days.

Article 33, clause 9 of the Constitution also states that it cannot not be amended during a state of emergency.

“The Constitution should be able to change and amend but we need certain number of years for the Bhutanese to accept, formulate and ingrain our basic values,” he said.

The former chief justice also believes in the Buddhist principle that impermanence is the main message of the Buddha.

He said there were 100 amendments to the Indian Constitution till August 15 last year. “Amendments are also necessary because it will take off the political heat and divert various opinions,” he said.

He added that a number of countries around the world were plagued by constitutional crises when Bhutan was drafting its Constitution under His Majesty’s guidance. There were also criticisms against constitutions in the neighbouring countries.

“We were not blind to the events that were engulfing the whole world,” he said. Bhutan tried and learnt lessons from each of these countries.

The former chief justice said time has proven that Bhutan’s Constitution is right.

“When you brought the first constitutional case against Druk Phuensum Tshogpa I spent a sleepless night,” the former chief justice replied to Lyonpo Damcho Dorji. Lyonpo was one of the two opposition members to initiate the first constitutional case. “But the time has proven that the Constitution was right and others were wrong.”

The then opposition party in 2010 sued the government for raising the vehicle tax without parliament’s approval. The opposition party prevailed and the Supreme Court in 2011 ordered the government to refund the additional costs that were paid by the buyers as a result of the tax increase.

A law graduate undergoing training at the RIM asked whether there was a reason behind the absence of the word “equality” in the Preamble of Bhutan’s Constitution.

The former chief justice said that Bhutan did not have the kind of disparity among its people. He said the Bhutanese people do not want to remind themselves of the past and that people should look to the future. “Future is equality,” he said. “The ghost of the past must not haunt.”

The former chief justice also talked about the direct and indirect influences of the Indian Constitution and the wisdom of Dr Ambedkar in Bhutan’s Constitution. He said the independent election Act, and the strong and independent judiciary are the direct influence of Dr Ambedkar.

On the indirect impact of the Indian Constitution he said that the drafting committee thought Bhutan would not have a constitution as thick and large as India’s.

Quoting various internationally renowned persons, he said the government cannot be a “helpless spectator of lawlessness” but that the state has a responsibility to protect its sovereignty and others. He also said the government cannot provide every right to the citizens.

“Constitution is not the catalog of human rights,” he said. “Constitution is the protector of freedom, liberty and others ,and particularly to encourage people to think to liberate themselves.”

MB Subba

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