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Kathmandu Wednesday January 30, 2002 Magh 17, 2058.
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Bhutan’s sham constitutionalism
By RAKESH CHHETRI
Authoritarian Bhutan does not have a Constitution. Under
pressure from Bhutanese activists in exile and international community, the King has
commissioned a Constitution drafting committee on November 30, 2001. It is yet another
gimmick and ‘window dressing’ to show democratic credentials of the king to the
international community. An authoritarian absolute monarch is hardly expected to write an
effective representative democratic Constitution. It is important to discuss the
principles of constitutionalism vis-a-vis the authoritarian rule. The basic principle of
constitutionalism is to limit powers as against absolutism in Bhutan. A constitution is
established to restrict the possibility of abuse of power by the ruler.
Constitution is the basic law and legal authority of a state.
All laws are derived from it. It establishes a framework under which law is made and
administered. It establishes the three organs of the government - legislature, to make
laws; executive or the government to administer and execute the laws- and an independent
judiciary to adjudicate on legal disputes between the citizens and the state, and among
the citizens. In Bhutan’s context, the king is the executive head of all the three
organs of the government and exercises absolute power. He, and not the constitution, is
the basis of legal authority.
A constitution is not designed to provide a recipe for
efficient government. These are matters within the areas of government. Constitutions seek
to limit the area of power of the organs of the government by three methods - through bill
of rights, the system of checks and balances and decentralization of power. A Bill of
Rights places limitations on the powers of the government and creates an area of freedom
for individual action. A true liberal constitutional system contains various devices for
division of power in society through checks and balances. Power, by its very nature, can
only be checked or regulated by power. Thus, in order to guard liberty against the abuse
of power, it is necessary to distribute powers into many independent centres. The
Constitution must be based on the doctrine of popular sovereignty, or rule by the people.
Constitutionalism: Constitutionalism means limited
government. Most of the countries, even those having totalitarian and despotic
governments, have constitutions. In a totalitarian and despotic system, constitution
confers wider powers and discretion on the government to suppress and oppress their
people. They cannot be accepted as a constitutional government. There is a fundamental
difference between constitutions which exist at the pleasure of those in power, and
constitutions which limit power - absolute power of an individual or a group. How could
Bhutan ruled by an absolute monarch and governed by the ‘rule of man’ suddenly
and voluntarily offer constitutionalism or rule of law? This only lends credence to the
belief that Bhutan is trying to acquire a sham constitutionalism. True constitutionalism
is not at all possible in Bhutan unless the king gives up his powers.
In an effective constitutional system, constitution is
supreme. It regulates the exercise of power by different organs of the government, all
acts of ministers and public servants are carried out in accordance with law and
authorized by the law. In which the content of law must not be unjust and the laws do not
confer wide and unfettered discretionary powers on the government to oppress their
subjects. Besides, other elements of an effective constitutionalism include a system of
elections held frequently based on universal adult franchise; guarantee of citizens’
fundamental rights including freedoms of expression and personal liberty; independent
judiciary having power to control unlawful acts of the legislature and the executive,
which really exercises this power; a system of controls on the use of discretionary powers
and sovereignty vested in the people. Thus, effective constitutionalism means more than
just having a constitution. Whether Bhutan will have a constitution or not, the king will
continue to exercise absolute, unlimited and unfettered discretionary powers to oppress
the people.
Rule of law: The rule of law is essential for safeguarding
civil liberties and for maintaining social order. The rule of law envisages that if our
relationships with each other and with the state are governed by a set of rules, rather
than by ‘an individual or a group of individuals’, we are less likely to fall
victim to the authoritarian rule. The rule of law calls for both individuals and the
government to submit to the law’s supremacy. It is not possible to establish such
rule of law in the present despotic Bhutan. Those close to the king will continue to
exercise the law at their whims and fancies.
Democracy: Effective Constitutionalism is not at all possible
without a system of representative democracy and a system of checks and balances on those
exercising power. It is unthinkable in a despotic Bhutan. ‘Power corrupts and
absolute power corrupts absolutely’- this statement truly befits the Bhutanese
system. The representative democratic system is the best alternative to reducing the
extent of the abuse of power. It provides institutional checks and balances. An elected
government should be restricted by the constitution and the law. The government is also
periodically accountable to the people and the people have the right to criticize. A
representative democracy is incomplete without the existence of political parties, civil
society, free and fair elections, freedom of expression and real decentralization of
power. Thus, Bhutan must establish a representative democracy before drafting the
Constitution. How could the constitution become functional without a representative
democracy? We often hear the government hawks saying that people are ‘not ready for
democracy’. Democracy is a system, which offers preferences to people and they do not
have to be ‘ready’ to accept a good system.
Checks and balances: A system of checks and balances checks
both corruption as well as improper conduct of the political leaders. The law and the
constitution exert various pressures on the representative government. The opposition
party, parliament, media, civil society, pressure groups, trade unions, civil society,
consumer forums etc, exercise substantial influence on the government, which direct and
indirectly restrain government power. These are non-existent in Bhutan. Practice of
holding regular elections imposes restrictions on the actions of the politicians and the
government. Freedom of speech and expression is one of the most important restrictions.
But there is no such freedom in Bhutan. Any criticism of the king and his government is
considered treasonable offence. Bhutan must allow freedom of expression before embarking
on sham constitutionalism and democracy. The best way of preventing people from taking to
rebellion is to ensure their right to freedom of expression and opinion, and these must be
protected by the rule of law. Freedom of speech is also important to the government
because it gets an opportunity to respond and answer unfair comments and criticisms about
its actions.
A democratic system also offers a degree of upward social and
economic mobility providing avenues for persons of talent from the lower classes to move
up the social ladder. These preferences are not available in a despotic Bhutan. The high
government posts and lucrative businesses are reserved for royal families and their
nominees.
Personal liberty: In a country like Bhutan, individuals live
under perennial fear. A knock on the door can mean arrest and imprisonment without trial
and even torture and death. People brought to trial are denied a fair hearing and charges
often concern acts which are regarded as legitimate conduct in a democratic world.
Bhutanese jails are occupied by prisoners of conscience and political dissidents, who are
guilty of no criminal offence by democratic standards.
The Bhutanese government negates personal freedom by official
violation of due process or by the enactment of unjust laws, for example national security
act. It practises arbitrary arrest, detention and punishment and prohibits the kind of
conduct which are essential to human dignity and freedom. Tek Nath Rizal was given life
imprisonment for criticizing the king’s policies. The critics of the government are
jailed, exiled, subjected to mental and physical torture and given death or life
sentences.
No Nepali-speaking citizens, who comprise about 45 percent of
Bhutan’s population, has been included in the drafting Committee. The constitution
will not represent the aspiration of all the sections of the Bhutanese society. If the
government retained the Citizenship Act, 1985 in the Constitution, it will not only
prevent the return of refugees, but will affect the entire Nepali-speaking citizens.
Unless, the king gives up his absolute powers, allow the political parties to function and
pave the way for the establishment of a true liberal representative democracy, the
so-called Constitution will have no meaning. It will be a sham constitution.
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