Druk Nyamrup Tshogpa (DNT) on October 25 refuted the arguments the Office of Attorney General (OAG) submitted to the High Court for dismissal of the party’s writ petition on the legality of fiscal incentives granted bypassing the Parliament.

The High Court after hearing the submission of OAG, allowed petitioner DNT to respond to the respondent’s arguments at the hearing.

OAG submitted three points as its arguments for dismissal of DNT’s petition – lack of locus standi (legal standing), the suit as sub judice and that the procedure for granting of fiscal incentives was streamlined with the parliament deciding to treat them as money bill.

At the hearing, DNT’s lawyer Yeshey Wangdi maintained that the government violated the Constitution by granting fiscal incentives without the Parliament’s approval. The defense submitted by OAG, according to DNT, was weak and a feeble attempt to justify the wrong.

On the OAG’s argument of the matter being sub judice, the lawyer said that the matter has not been submitted to any other court. A case is sub judice if it is under legal proceeding in one court and cannot be taken up by another court.

“In this matter, the whole nation is aware that it was DNT that submitted the case against the government on the violation of the Constitution and the matter has not been submitted to any other court,” he stated.

The OAG’s argument that the government submitted a petition to the Druk Gyalpo and therefore must be deemed sub judice, according to DNT, is not only preposterous but also gravely misleading. “The government has no such authority under any existing law and is a feeble attempt to misquote Article 21(8) wherein it is the sole prerogative of the Druk Gyalpo to refer to the Supreme Court.”

The lawyer said that an attempt by the government to seek the opinion of the Supreme Court was denied by the Speaker who stated that the matter was under sub judice because DNT had placed the case in the High Court.

On whether DNT has locus standi for filing the case against the government, the lawyer said it is clear that DNT has fulfilled all the requisite criteria set in the Civil and Criminal Procedure Code of Bhutan under section 31(2). There is a concrete case or controversy since the government has violated section 46(A) of the Public Finance (amendment) Act 2012 and Article 14(1) of the Constitution.

According to DNT, the legal standing can be further derived from Article 21(18), which provides that every person has the right to approach courts with matters arising out of the Constitution. The alteration of tax by the present government, DNT stated, unambiguously tantamount to a blatant breach of Article 14(1) of the Constitution, which states: “Taxes, fees and other forms of levies shall not be imposed or altered except by law.”

The lawyers stated that it was undoubtedly within the ambit of the matter arising out of the Constitution. “Hence, there is no question as to locus standi.”

The OAG asked whether and how DNT has been aggrieved or injured by the granting of the fiscal incentives. According to DNT lawyers, it is not only DNT and its members but the nation as a whole that has been aggrieved and injured.

The lawyers argued that the waiver of tax “under the guise of fiscal incentives” has cost the national exchequer, millions of Ngulturms. “That money would have gone towards improving health, education, provision of water and other such public services.”

According to DNT, while a few have been enriched, the large majority of people have been denied with critical funds that could have gone towards the nation’s development. By unconstitutionally waiving taxes, the government cannot ensure that the cost of recurrent expenditure is met from internal resources of the country as per Article 14(6) of the Constitution as tax is one of the most guaranteed internal resources of a nation.

“In fact, the very breach of the supreme law, the Constitution, itself is an injury and there will be no greater injury than this.”

The OAG’s questioning of DNT as a legal entity and insisting that only the Opposition has the authority to invoke Article 15(1) is tantamount to questioning the fundamental principle of democracy enshrined in the Constitution.

The lawyers argued that it is not only the fundamental duty and responsibility of DNT to respect and abide by the provisions of the Constitution but of every individual as enshrined in the Constitution. “Hence, every person has been placed with the solemn and greater responsibility to protect the sacred Constitution when it is violated.”

According to the lawyers DNT as a registered political party with hundreds of members and the support of many thousand more, its status as a legal entity cannot be questioned. “To place the responsibility of protecting the Constitution only on the Opposition is precarious and denying the very constitutional rights enshrined in the Constitution to the people.”

DNT has filed the petition for issuance of a writ from the High Court instead of a normal legal proceeding to set precedence for seeking the Court’s intervention when the government fails to uphold the Constitution. Filing a writ petition that does not involve a lengthy legal proceeding would set a good precedence so that future governments are protected from engaging in numerous legal proceedings.

MB Subba