The best intentions must not be implemented through wrong procedures

The Ministry of Finance plans to issue an amendment to the previous notification on the uniform monthly travel allowance to employees of all central and budgetary agencies. These austerity measures are not only well-intended but have become necessary to protect our national economy till this pandemic is contained. However, the process of this measure seems to set a wrong precedent.

When the government allowed duty-free outlets to import, sell, and distribute tobacco products, it attracted a lot of criticism accusing the government of violation of the Constitution. However, this time, everyone remained silent.  In fact, if the tobacco issue violated the Constitution, then so did this notification.

The notification issued on 31 July 2020 essentially repeals Section 44 of the Pay Revision Act 2019. This Section revised the Daily Allowance (DA) rates for civil and public servants including the judiciary and parliament with different rates for different positions. The Ministry of Finance revised the rates as a lump sum amount of Nu 15,000 per month up to 30 days irrespective of position levels and thereafter Nu 10,000 per month irrespective of the position levels. This notification revised and structured a new rate against the Pay Revision Act.

Section 65 of the Pay Revision Amendment Act 2020 states that “the amendment of this Act shall be by the way of addition, variation or repeal effected by Parliament as per the recommendations of the Pay Commission”. This means any repeal or variation or addition to this law is the sole prerogative of the Parliament on the recommendation of the Pay Commission.

As per Article 30 (2) of the Constitution, only the Pay Commission has the authority to recommend revisions of the salary, allowances, benefits, and other emoluments of civil servants and other public servants. Lhengye Zhungtshog has the authority to approve recommendations after which the parliament has the final authority to modify or set conditions on these revisions.  Explaining the rationale behind the Article 30, the Chairman of the Drafting Constitution stated that “the Commission will submit a recommendation to the Lhengye Zhungtshog” so that  the “Lhengye Zhungtshog and Parliament cannot take suo moto action without being proposed by the Commission.”

Article 1(13) of our Constitution explicitly provides separation of power among the three organs of government to ensure proper checks and balances in their functional aspects to uphold the rule of law and democratic values and preserve the unity among the three branches in its overall objective. The framers included Article 20(8) in the Constitution to re-enforce Article 1(13) by restricting the executive from issuing “any executive order, circular, rule or notification” contravening the parliamentary acts.

His Majesty said, “when my Father and I introduced democracy in Bhutan 2008, the most important objective we had in mind was to establish the rule of law to ensure the happiness, peace, and prosperity of the people for all time to come.”

This sums up how each arm of the government must act based on the rule of law. While under the present circumstances, we must support the government in unity, the government must uphold the rule of law. We may have the best government with the best intentions, but such procedural lapses may become avenues for future governments to fulfill their political interest. If our legislature and judiciary remain a spectator to such a process, the future government may come up with notifications to override any statutes which are against the established rule of law.

Sonam Tshering

Lawyer, Thimphu

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

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