The High Court will either issue a writ on the legality of fiscal incentives granted bypassing the Parliament or dismiss the writ petition filed by Druk Nyamrup Tshogpa (DNT), Justice Lungten Dubgyur said at the hearing yesterday.
He said that a seven-member bench of the High Court would take a decision. “We will take a decision as per the law,” he said.
DNT on August 18 filed the petition requesting the court to issue a writ against the government’s decision to grant fiscal incentives without the Parliament’s approval. DNT maintains that the granting of fiscal incentives before May 2017 was in violation of the Constitution and relevant laws.
The Office of Attorney General (OAG) requested the court to summarily dismiss the petition. OAG stated that DNT not only lacked locus standi to file the suit, the matter was also sub judice, and that the procedures for granting of fiscal incentives streamlined.
Stating that the third parliamentary elections and the 10th session of Parliament are just around the corner, the justice said that the court would not hold the case for long.
“We will take a decision keeping in mind our responsibility to the King, country and people,” he said.
Attorney Generaal Shera Lhendup argued the matter was sub judice since the government had submitted a petition to the Druk Gyalpo on August 16 for consideration to invoke Article 21(8) of the Constitution for the Supreme Court’s interpretation on the legality of the fiscal incentives granted to the private enterprises until May 2017.
The article states: “Where a question of law or fact is of such a nature and of public importance that it is expedient to obtain the opinion of the Supreme Court, the Druk Gyalpo may refer the question for its consideration, which shall hear the reference and submit its opinion to Him.”
OAG also submitted that Section 18 of the Civil and Criminal Procedure Code (CCPC) 2001 provides for the “exclusive advisory jurisdiction” of the Supreme Court on matters referred to it for interpretation. “Hence the original jurisdiction of the High Court stands in abeyance when the same subject is in pendency or under the motion before the Supreme Court.”
According to OAG, the petition remains sub judice irrespective of whether DNT acted with or without the knowledge of the government having submitted the issue to the Druk Gyalpo. Further, OAG submitted that in a democratic polity it was important to adhere to the constitutional means to resolve democratic issues which the impugned petition has disregarded by bypassing the democratic recourse.
Arguing that DNT had no locus standi to file the “impugned suit”, OAG cited Article 21(18) of the Constitution, which states that it is every person’s right to approach courts in matter arising out of the Constitution or other laws. OAG, however, added that Article 21(18) is subject to Article 7(23) of the Constitution, which provides that “a person can approach a court of law subject to the procedure established by law”.
Citing Section 31.2 of CCPC, OAG said that it was a pre-condition for a person to have legal standing to file a petition. OAG stated that under Section 149 of CCPC, there must be a large number of individuals whose interests are closely related and that the petitioner not only has to represent the interests of those members, but must also be aggrieved or be an injured of that class of people.
According to OAG, there was a positive action targeted to lift certain tax burden from the general populace, which is diametrically opposed to the burden of tax imposition.
“Further, injury must result from violation of legal rights for which law provides remedies and the petitioner being a juristic person in the eyes of law is being incapable of directly affected by the act of the respondent (government), nor does the petitioner represent a large number of aggrieved individuals,” stated OAG.
OAG argued that it was the prerogative of the Opposition in the House to scrutinise the laws and policies of the ruling government and that DNT as a third party cannot invoke Article 15(1) of the Constitution for its locus standi.
The Article states: “Political parties shall ensure that national interests prevail over all other interests and, for this purpose, shall provide choices based on the values and aspirations of the people for responsible and good governance.”
Shera Lhuendup said that the fiscal incentives were granted to boost economic growth by incentivising investments, broaden future tax base, generate employment opportunities and secure sovereign economic interest of the nation. He said that the government had addressed the public’s concern by passing the fiscal incentives 2017 as Money Bill and was planning to amend relevant laws in the upcoming 10th session of the Parliament.
According to DNT, it is a registered party with about 500 members from across the country and that the responsibility to uphold the Constitution was vested on their shoulder.
“It is the right of every citizen to uphold the Constitution,” one of the lawyers representing DNT said.
The lawyer said that to be a political party was more of taking responsibility than merely providing choices during an election.
“There is no question of our locus standi,” he said.
Speaking after the hearing, DNT’s president, Dr Tandi Dorji, said that the matter was not sub judice. “The government’s decision to submit the matter to the Druk Gyalpo was illegal,” he added. “The government does not have the right to submit the matter directly to the Druk Gyalpo. So question of whether it is sub judice does not arise.”