Provisions of seven legislations conflict with the Constitution, according to the report on harmonisation and consolidation of laws compiled by the national law review task force.
The report stated that the Civil Service Act of Bhutan 2010, Mines and Minerals Management Act 1995, Medicines Act of Kingdom of Bhutan 2003, Immigration Act of the Kingdom of Bhutan 2007, Royal Bhutan Police Act 2009, The Pesticides Act 2000 and the Civil and Criminal Procedure Code of Bhutan 2001 are not consistent with the Constitution.
It stated that of the 98 legislations operative in the country, some were enacted before the adoption of the Constitution, making it inconsistent with the supreme law of the land. “Therefore, the conflicting laws must be fine-tuned to align with the Constitution.”
The report stated that the Constitution, under Article 1 (13) and 21 related to the judiciary, Article 24 (2) to the Election Commission of Bhutan (ECB), Article 25 (2) to the Royal Audit Authority (RAA), Article 26 (1) to the Royal Civil Service Commission (RCSC) and Article 27 (1) to the Anti-Corruption Commission (ACC), recognises and guarantees full independence to the constitutional bodies.
It stated that the Parliament, in accordance with the Constitution, enacted the Judicial Service Act, Royal Audit Act, the Election Act and the Anti-Corruption Act.
“These Acts empower and grant full independence to the judiciary, RAA, ECB and the ACC in the recruitment, training, transfer, promotion and management of the personnel working in their organisations. However, the Civil Service Act (CSA) unilaterally empowers the RCSC to be the central personnel agency in the recruitment, training, transfer, promotion and management of certain level of staff, thereby contravening the Constitution as well as the parent legislation of the judiciary and the constitutional bodies.”
The inconsistent provisions of the CSA are sections 2,5,6,53, 57, 72, 97.1, 97.7 and 97.29.
The report also stated that the use of the term “Royal Government” in the CSA’s preamble instead of the word “Government” undermines the doctrine of the Separation of Power under Article 1 (13) of the Constitution.
“The word “Government” under the Constitution has been used to mean the Executive Government in reference to several Articles of the Constitution.”
It also pointed out that under the CSA, the RCSC has not maintained its own independence. “The fundamental reason of having an independent RCSC under the Constitution was with the long-term vision of having an efficient and apolitical civil service,” the report stated. “The CSA requires RCSC to implement the decisions of the Lhengye Zhungtshog in many areas. For instance, section 29 of the CSA requires the RCSC to be answerable to the Lhengye Zhungtsho, whose members are all political appointees.”
The taskforce also mentioned that the independent constitutional bodies are answerable to the RCSC, thereby making the bodies susceptible to possible political manoeuvre and influence.
The taskforce, however, has not provided specific recommendations because there is a need for complete overhaul and redrafting of the CSA so that it is consistent with the Constitution and other existing laws.
In the Mines and Minerals Management Act 1995, it recommended that the Act must be harmonised and amended based on the provisions of the Constitution that vests the ownership of the mineral resources in the state. “Those provisions in the MMMS and the rules that give mining rights to the private mining companies must be amended so that there are no infractions of the constitutional provisions.”
The report stated that while the Constitution empowers the Attorney General to institute, initiate and withdraw any case in accordance with the law and also section 11 of the Office of the Attorney General Act establishes the OAG as the central prosecution and litigation agency of the government, the Medicine Act, Immigration Act and the Royal Bhutan Police Act also empower their respective organisations with prosecutorial functions which are in contradiction with the Constitution and the OAG Act.
It stated that if the same agency that conducts an investigation is given the power to prosecute, there is a high probability of these agencies filing vindictive or unmerited cases resulting in a conflict of interest situations.
The taskforce recommended that the agencies should seek permission (Power of Attorney) from the OAG to undertake prosecutions.
It also pointed out conflicting or duplicating provisions of laws and 15 laws need consolidations.
It stated that the vast number of laws and the lack of legislative expertise have led to many legal provisions conflicting with provisions of other legislation and duplication.
“When the laws conflict with one another, the law becomes uncertain and unpredictable resulting in varying and inconsistent interpretations by the courts.”
The taskforce recommended repeal of section 73 of the National Environment Protection Act 2007 (NEPA), which conflicts with chapter 2 of the Biodiversity Act of Bhutan 2003.
It also recommended the amendment and repeal of some sections of the Civil and Criminal Procedure Code 2001 and the Penal Code.
The taskforce recommended procedural changes in some laws and stated issues and concerns of fronting, computer pornography, illegal immigrants, eligibility of local government leaders to re-contest without resigning, committed on delegated legislation and implementation of regulatory impact assessment (RIA) rules should be addressed under existing laws.
It also stated that Law of Limitation, Interpretation Act/General Clauses Act, Insolvency Act, Administrative Tribunal Act, Army Act, Right to Information Act, Impeachment Act and Officials Secrets Act should be enacted.
It also mentioned that prohibition of replacing party candidates after the primary round of the election, secure an independent and apolitical civil service and Pay Commission Act should be considered for deliberations.
The report mentioned that while there are 98 Acts (excluding Amendment Acts) and about 113 rules and regulations, many remained unimplemented.
It cited the Bankruptcy Act as an example of non-implementation.
It also stated seven Acts were not traceable.
Meanwhile, the taskforce members are Attorney General Shera Lhundup, High Court Justice Lungten Dubgyur, Trongsa drangpon Ugyen Tshering, officiating deputy attorney general Sonam Tashi, Bhutan National Legal Institute’s assistant judge Tenzin, Bhutan Law Services’ attorney Younten Dorji and Lieutenant Tandin Penjor of the Royal Bhutan Police.