In the realm of democracy, the rule of law stands as an immutable pillar that underpins the integrity of governance. Unfortunately, many democracies worldwide falter or flounder when short-term political objectives take precedence over the sanctity of the rule of law. This worrisome trend is not alien to Bhutan, where the Constitution itself foresaw these challenges. Bhutan’s Constitution, in Article 1, expressly delineates the separation of powers, setting it apart from many other constitutions across the globe to prevent the same faltering. Nevertheless, the delicate balance of power in Bhutan is currently teetering on the precipice, prompting an urgent need to acknowledge and rectify these challenges in the interest of our nation’s long-term aspirations.

The framers of Bhutan’s Constitution were astute in anticipating that those in political power might exploit their authority to achieve objectives that run contrary to the Constitution’s spirit. For instance, Article 20, Section 8, explicitly states, “the Executive shall not issue any executive order, circular, rule, or notification which is inconsistent with or shall have the effect of modifying, varying, or superseding any provision of a law made by Parliament or a law in force.” This provision serves as a robust safeguard to ensure that the rule of law takes precedence over all else, recognising the global tendency for political power to dictate a nation’s course.

A recent example of such a challenge arises from the government’s issuance of executive orders related to the Sustainable Development Fee (SDF). While these orders were ostensibly aimed at encouraging more dollar-paying tourists to visit the country, they have raised concerns about their compatibility with Article 20(8) of the Constitution. The government’s proposal to reduce the SDF to $100 from 2024, if implemented through an executive order, would undoubtedly contravene the Constitution’s spirit.

Likewise, the suspension of two High Court justices has prompted questions about the process for their potential removal from office. According to Article 32 of the Constitution, constitutional office holders, including the Chief Justice and drangpons of the Supreme Court and the High Court, can only be removed through an impeachment process, based on grounds of incapacity, incompetency, or serious misconduct, with the concurrence of not less than two-thirds of the total number of members of Parliament. His Majesty the Great Fourth elucidated that this impeachment provision exists not to protect wrongdoers but to establish checks and balances against potential abuse of authority as seen in many countries.

Therefore, if the government intends to alter the SDF or provide incentives beyond what is stipulated in the Tourism Levy Act, it must present its proposal to Parliament. Only Parliament holds the authority to amend the Act to address SDF-related issues unless the Act explicitly grants the Executive discretionary powers in this regard.

His Majesty said, “As we move forward, we must be guided by the most sacred and unchanging national goals – the security and sovereignty of our Nation and the peace, unity and harmony of our People. Our immediate and foremost duty is the success of democracy. That is our foundation for the future success of Bhutan. But democracy can only flourish if all Bhutanese uphold the rule of law; if there is good governance; if corruption is eradicated and if the delivery of public services is fair and effective.”

Thus, the rule of law simply means adhering to the framework and limits of the Constitution.

Sonam Tshering

Lawyer, Thimphu

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