Sunday, August 16, 2015

Another constitutional case in the offing? Not really !

When you read about the pros and cons of legal ramification on the case of Government exempting sales tax and custom duty on imported books, it is undoubtedly a breach of constitutional powers.

I have no reservation on the good intention of the Government towards supporting the cause of the Reading Year. Exemptions of sales tax and custom duties would reduce cost of imported books and possibly this would encourage more people to buy books and read. It is altogether a different unfortunate social trend that reading just is not a habit of most people especially the younger generation. But we have to try to promote reading culture.

The larger picture is the unilateral taxation power of the governing Political Party versus the constitutional power of the Parliament. If a Government can issue a blanket exemption then it should also be able to issue a blanket increase in sales tax and custom duties.

In the 1st constitutional case about taxation power of a Government, the Supreme Court ruled to the effect that such matters must be put up to the Parliament. And that any such financial powers granted to the Government under any Laws or Acts before the enactment of the Constitution are rendered impotent if found to be in conflict with the clauses of the Constitution.

Now we have two established facts:

1. The intention or reasons for exemption are pure goodness and therefore if the same had been put up to the Parliament, the proposal would have sailed through.

2. The Government on its own deciding even a time bound blanket tax and duty exemption is unconstitutional. In a case of national emergency, a Government could act first and seek Parliament endorsement later but this is not of national emergency nature.

So what happens here onwards:

1) In normal cases the Opposition would seek the Royal Permission to refer the case for a Supreme Court constitutional Hearing. But I have my doubts. Somehow, I get the feeling that a lot of the Opposition MPs would rather leave politics right now than continue representing as an Opposition Party of no political consequence. The Opposition may have raised the issue only for the purpose of highlighting the incongruity in the Bhutanese political system.

2) The Supreme Court could decide to be proactive and issue an advice directly or indirectly to the Government to have its decision endorsed by the Parliament. For example, the Supreme Court did indirectly state ( through a judicial officer speaking to media ) that ACC cannot takeover Lhakhang Karpo Case from OAG. Therefore, the ruling of Bench I of High Court on the appeal of ACC was a foregone conclusion. But again I have my doubts for various unspoken reasons, whether Supreme Court would take upon the Government as it had upon ACC. 

The end result would be another blow to democracy in Bhutan. Actually it is difficult to tell who in Bhutan wants democracy and who do not. The larger outside democratic forces thinks that every other nation should have a democratic system. But for Bhutanese especially the common people, democracy has had at best mixed sour and bitter ingredients. A taste that has thoroughly confused their tongues and stupefied their minds.

Welcome to the Kingdom of constitutional system.


  1. If it is allowable to tax exemption, tax increase then why PDP has file case a constitutional case with DPT during tax increasing. on other hand i feel that government bureaucracy, constitutional organisation like ACC, RAA, and Judiciary itself can backup to the PDP government, thus opposition filing a constitutional case will useless.

  2. Since this government has extreme good support from the each and every corners they can do what ever they like to do.