Breaching the Constitution.

When someone breaks law, a simple apology does not suffice to the Court to get away with the act of breaking the law. Likewise, simply apologising to Supreme Court would not suffice if a ruling party is found by Supreme Court in  breach of an article or clause of the constitution. An exercise of extra constitutional power tantamounts to dictatorship.

An individual breaking the law would be penalised through levying of monetary fine or prison sentence. A ruling political party if found in breach of article of constitution cannot be fined or sentenced to prison term like an individual. The Party in breach may have to resign and fresh election called unless I guess pardoned by His Majesty the King and permitted to continue after undoing the breach.  

Whether DNT formed Cabinet is in breach of the Constitution can be determined legally by the Supreme Court only. The DNT government is superseding the set constitutional limit of free education for all in its pursuit to fulfill the campaign pledge of the DNT Party. Afyer the tenth starndard, the Constitution provides for state sponsorship of  free education based on merit only. Not state funding of all class X general passouts.   

And whether Supreme Court takes up the constitutionality case depends on the Command of His Majesty the King. Only the King of Bhutan can move the Supreme Court on a constitutional case. Unlike in neighbouring countries like India and Pakistan, the Supreme Court of Bhutan can act only upon royal consent regarding constitutional matters. Thus the constitution can be as gracious or firm as deemed royally.  

If the case does come to Supreme Court, among other issues, two factors may prove to be pivotal in determing the outcome.

1. The definition of the qualifying term " merit " as applied  and generally understood in the past by the Education Ministry and stakeholders like past students. And merit as defined could very well be the 59.4% set by the government for admission in class XI in government schools..

2. According to information quoted by Kuensel, this issue of providing free education upto class XII is not a new matter. It was submitted during the 1st Parliament by some MPs when the Draft Constitution was presented to the Parliament by Lyonpo Sonam Tobgye the then  Chief Justice of Supreme Court in  his capacity as the Chairman of the Constitution Drafting Committe. So the underlying fact is that the matter of free education upto class XII was submitted in the Parliament and rejected during the deliberation process of adoption of the Constitution. And it is a historical fact that  every article and clause was explained and debated upon in the Parliament before the Constitution was adopted.  

The critical fact here is that this particular issue of free education upto class XII  had been already submitted and rejected by the Parliament during the process of adopting the Constitution by the 1st democratic Parlianent. Therefore, it is quite clear that if this government wants to enhance " free education upto class XII level "  then it has to go back to the Parliament and get the present constitutionally set limit enhanced. According to His Excellency Lyonpo Sonam Tobgye, there are both "economic and legal ramifications and  the 12th standard is categorised as pursuit of higher studies."   Constitutional infringement no matter how small or for larger benefit is still a breach. There are no acceptable legal ways to bypass the constitution except by the path of amendment.

The matter of  constitutional breach and benefit of free education are two entirely different issues though in this case the one affects the other. But Constitution must be relevant and its articles and clauses respected to both the letter and the spirit until inconvenient article or clause is amended through set Parliamentary process to suit the call of the time. It cannot be ignored even for the good of the majority because then it can be sidelined for the benefit of the few also. Availibility or non availibility of money is besides the necessity to adhere to the Constitution until such an article or clause is changed to accomdate the desire of the government or the people.

In talking about breach, many would recall the Supreme Court case of Opposition PDP Party vs DPT Party  government about taxation policy. The DPT government was directed by the Supreme Court to put tax issues through Parliamentary process as sought by the Opposition Party. You could say that DPT cabinet was in breach of the Constitution. However, there was a clause in the Financial Act in vogue that empowered the Cabinet to take decision on taxes. I think the  Supreme Court took cognisance of that fact also. So the apex court decision was largely on thereafter process I remember reading in Kuensel. The particular clause in the Financial Act was later done away with. And there was no verdict declaring a clear cut breach of the Constitution. DPT continued in governance. Sure there must have occurred some political rethinking and adjustment in different political heirachy setups.

The DNT formed cabinet is bent on going ahead with free education upto classs XII to fulfill the campaign pledge of the Party.     The Opposition Party warns of possible breach of the Constitution. The PM feels that greater good offsets the possibility of constitutional breach so he argues that the risk is worthwhile. And over 4000 students await private school placings on 8th Feburary, 2019.  There just is no time to amend the Constitution in favour of free education upto class XII. So now what is the way out ? Does the Prime Minister roughshod over possible breach of the constitution with the hope that the matter may never be referred to the Supreme Court?

The Opposition is leaving it to the  National Council which may or may not  decide to submit the matter for royal referral. There is, however, another possibility. The case may still be referred to Supreme Court without input by NC as was the issue about PDP going ahead with Thromde and Yenlag Thromde in every Dzongkhag because it was one core  campaign pledge of PDP Party. Afterall His Majesty is the sole guardian of the Constitution though Supreme Court is the one which if commanded by His Majesty will submit the judicial findings on constitutionality. 

The Constitution is the most sacred embodiment of monarchical  democracy in Bhutan. It is not just the Mother of all Laws but also the foundation of all institutions including monarchy. The 1907 " genja " too is replaced by the constitution. If anyone thinks otherwise, please revisit the royal address to 1st democratic Parliament. Further it is the legacy of two Kings. People would recall the words of Chairman of the Constitution Drafting Committee, " what we submitted was like a rat but it came out like a lion ". His Excellency was referring to the draft constitution that the Committee had submitted and receipt of the same back with royal inputs. This draft constitution was shared and explained to public of all 20 Dzongkhags but hardly a single submission from the public at large was  incorporatedby the Drafting Committee. 

Moreover, it passed the Parliament wherein even the submission of enchancing " free education from class X to class XII " was denied.  So now how is it possible that a ruling political Party can decide and implement this very " enhancement " on its own strength as the Party in reign?  Where then is the " rule of  law " if what is rejected for incorporation  in the constitution by the Parliament can be decided otherwise by a new Cabinet with few weeks of experience in governance. A height of recklesss immature act or a consolidated reassurance belief in invincibility in having defeated two major Political Parties!  

The DNT government could have delayed this for a year as wisely decided at the education conference and get the necessary amendment through the Parliament. It is possible to amend because political situation is different. But all of a sudden, the DNT Cabinet decided otherwise. Maybe, they received assurrance of constitutional silence from their source of legal advisors and thus emboldened to risk the superseding of constitutional parameter. 

However, any doubt  about possible constitutional breach may warrant review by Supreme Court because setting precedence of inaction or turning a blind eye because it is politically convenient   would invite bolder and more disastrous breach the next round.

PS.  Democracy in our country is evolving and every thoughtful views about subjects that are pivotal such as constitutional breach could make positive contribution to developing a healthy nation. The responsibility is to make known the concerns and duty is to accept in good faith the ultimate decision of the constitutional authority.