Of separation of power and tussle between the legislature and judiciary

During the deliberation on the amendment of Civil and Criminal Procedure Code (CCPC) in the National Council, a member raised concerns about the judiciary amending the laws made by the parliament and the need to include a provision to control such powers.  This was followed by a Kuensel article “Contradicting Supreme Court Orders confuse courts”, which discussed on a standing order and many legal experts raised concerns of such orders.

This standing order was issued on November 26, 2019, instructing all the courts to implement the earlier standing order issued on June 17, 2015, which declared S.199.8A unconstitutional making every criminal offence a bailable.

In Bhutan, though Article 1(13) of the Constitution makes it  clear: “Separation of the Executive, the Legislature and the Judiciary” except as permitted by the Constitution. The separation of power adopted by numerous constitutions centuries ago mainly “as the system of checks and balances among the three arms of the government”.

Article 1(11) our constitution appoints the Supreme Court as the guardian and the final interpreter of the Constitution. This is an enormous authority the Supreme Court enjoys. However, reading this Article with Article 21 (8) and (10) does seem to limit the scope of authority of the Supreme Court.

For example, under Article 21 (8), Supreme Court can interpret the Constitution when there is a question of law or fact referred by His Majesty and under article 21(10), the Supreme Court can issue declaration, writs, orders, directions only based on circumstances of each case.

This indicates that there must be a case in order to exercise authorities under Article 21(10). Similarly, to interpret the provision on fundamental rights, it can be done only when a person aggrieved by action of the state is challenged. Thus, it is unclear, if current practice of Supreme Court issuing merely a standing order to amend or repeal parliamentary acts is within the framework of separation of powers.

Contrarily, Article 10 (1) explicitly states: “there shall be a Parliament of Bhutan in which all legislative powers under this Constitution were vested”. Therefore, legislative authority is an exclusive domain of the parliament. This can be inferred even from Article 1 (1) which states that, “Bhutan is a sovereign and sovereign power belongs to people of Bhutan” and parliamentarian are representatives of the people and not the judiciary.

When the principle of Separation of Power was propounded by a French Philosopher Montesquieu to fight against tyranny of the leaders who hold on absolute powers, he suggested that there is should absolutely no encroachment of each other. But with changing of times and shift in governance system towards people centric democracy, absolute separation of power is impossible and some overlap authorities into each other’s boundaries are inevitable.

Therefore, it is not uncommon for any legal system across the world that courts, in particular appellate courts, does amend lot of parliamentary acts through its decisions when a case has been filed before the court. But amendment of laws through issuance of standing order are often seen very rare in any democracy set up as it is often seen as direct infringement on the parliamentary domain.

Therefore, our judiciary must exercise due care when it requires to enter into domain of legislature to protect public confidence in the judiciary. Any form of power tussle between the judiciary and parliament is unhealthy for a democracy.

Sonam Tshering

Lawyer, Thimphu

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

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