Precedent matters

Two issues were the talk of the town over the weekend. The K-pop concert and the Druk Nyamrup Tshogpa (DNT) threatening to take the government to court for alleged violation of the Constitution. If there is anything similar between the two events, it is the hype surrounding them.

Yet, it becomes important to focus on the issues raised because the hype concerns the people, if not their interests. The concert is now over. DNT’s has just begun.

DNT has called on the Prime Minister and Finance Minister to take moral responsibility and step down for imposing fiscal incentives without the endorsement of the Parliament. If necessary, it claimed that it is ready to sue the government.

But does DNT have the jurisdiction to file a case? It might just, for besides indicating the faith in the judiciary, the issue it has raised concerns the Constitution and taxpayers. As it is among the governed and as taxpayers, the party may have the locus standi, the right to bring an action against the government.

The first constitutional case has already established the power of the executive. The Constitution’s Article 14 is clear that any taxes, fees and other forms of levies shall not be imposed or altered except by law. The High Court and the Supreme Court’s verdict affirmed that the action of the last government was arbitrary and ultra vires, meaning it was beyond the powers, to the Constitution.

Fiscal Incentives, 2017 was one of the most deliberated bills in this session of the Parliament. The Council and the Opposition both raised objections. The Council’s recommendations were not accepted and the National Assembly endorsed the money bill without resolving some important issues.

Since it is endorsed as a money bill, the fiscal incentives become effective from May 8. On what happens to the incentives provided between January  2016 and May this year, the Speaker decided to seek the Supreme Court’s opinion. This decision has breached the Constitution. As per Article 21, Section 8, only His Majesty The King has the authority to command for ‘abstract judicial review.’

These issues were not re-deliberated at the Assembly when it endorsed the bill. Some believe that unlike the first constitutional case where the taxpayers were affected and the government had to refund, this time, the taxpayers are benefitting. A section of the society may have befitted but these fiscal incentives have come at the cost of breaching the Constitution.

As business entities, incentives may be appreciated. But the Constitution represents the will of the people and draws its authority from the people. It is the responsibility of every Bhutanese to uphold the rule of law. If the government has erred, it must make amends. If misunderstood, it must explain. Discourse is vital to our democratic process and instead of getting to the politics of it, it must be transparent and responsive. Governance is as much about setting a precedence.

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