High Court says it will either rule on legality of FI or dismiss the case soon
The Office of Attorney General (OAG) has requested the court to dismiss DNT’s petition on the government’s fiscal incentives being unconstitutional because it not only lacked locus standi to file the suit, the matter was also sub-judice, and that procedures for granting fiscal incentives had been streamlined.
Attorney General Shera Lhendrup argued the matter was sub judice, since, the government had submitted a petition to the Druk Gyalpo on August 16, for consideration to invoke Article 21 (8) of the constitution to obtain opinion of the Supreme Court on the issues of fiscal incentives granted till May 2017, by both the present and previous governments.
The OAG submitted that Section 18 of the Civil and Criminal Procedure Code, 2001 (“CCPC”) provides on the exclusive advisory jurisdiction of the Supreme Court on matters referred to it for its opinion. Hence, the original jurisdiction of the High Court stands in abeyance when the same subject matter is in pendency or under motion before the Supreme Court.
According to OAG, the petition remains sub judice. On DNT not having locus standi to file the impugned suit, OAG cited that Article 21(18) of the constitution vests in every person the right to approach courts in matters arising out of the Constitution of other laws. However, that right is subject to Article 7(23) of the constitution, which provides that “a person can approach a court of law subject to the procedure established by law.” Hence, for person to have “legal standing” to file a petition, it must, “involve a concrete case or controversy”.
OAG stated that under section 149 of CCPC, there must be a large number of individuals whose interests are closely related, and the petitioner not only has to represent interest of those members but must also be aggrieved or be an injured member of that class of people.
According to OAG, there is a positive action targeted to lift certain tax burden from the general populace, which is diametrically opposed to the burden of tax imposition.
“Further, injury must result from violation of legal rights for which law provides remedies and the petitioners being a juristic person in the eyes of law is incapable of being directly affected by the act of respondent nor does the petitioner represents large number of aggrieved individuals,” stated OAG.
OAG argued that the DNT cannot invoke Article 154 (1) of the constitution for its locus standi as the intent of that Article is to require political parties to “ keep in mind the national interests, take into account the values and aspiration of the people in formulating their policies for responsible and good governance”.
“After formation of Parliament, it is both the duty and prerogative of the Opposition in the house, under Article 18 of the constitution, to critique and scrutinize the laws and policies of the ruling government in developing, defining and presenting alternative measures.”
Shera Lhuendup said the previous or present government, fiscal incentives are granted to boost economic growth by incentivizing investments, broaden future tax base, generate employment opportunities and secure sovereign economic interest of the nation.
Further, the provisions of different laws that vest fiscal incentive granting power in the government are being motioned for necessary amendments and repeals in the forthcoming 10th session of the parliament. The general concern on the granting of fiscal incentives by government has thus been addressed in perpetuity.
DNT meanwhile summarizing it lawyers arguments said that as opposed to the OAG’s argument that the matter be deemed sub-judice, the government has no such authority under any existing law and is a feeble attempt to misquote Article 21 (8). The DNT said in fact, the attempt by the government to seek the opinion of the Supreme Court was denied by the Speaker citing that the matter was under sub-judice because the DNT had placed the case in the High Court.
On locus standi, DNT said there is a concrete case or controversy since the Government has violated the Public Finance (amendment) Act 2012 and Article 14.1 of the Constitution. It says legal standing can be further derived from Article 21(18) which provides that every person has the right to approach courts with matters arising out of the Constitution.
The DNT said that the OAG has raised the question on how DNT has been aggrieved or injured by the provision of fiscal incentives. DNT said it is not only DNT and its members but the Nation as a whole that has been aggrieved and injured by unconstitutionally waiving taxes (under the guise of fiscal incentives), which has cost the national exchequer, millions of Ngulturms.
DNT said the OAG’s questioning of DNT as a legal entity and insisting that only the Opposition has the authority to invoke Article 15(1)is tantamount to questioning the very fundamental principle of democracy enshrined in the constitution.
High Court Justice Lungten Dubgyur at the hearing said that the high Court would either issue a writ on the legality of fiscal incentives granted bypassing the parliament or dismiss the writ petition filed by DNT. The seven-member bench of the High Court would take a decision as per the law.
DNT filed the petition on August 18 requesting the court to issue a writ against the PDP decision to grant fiscal incentives without the Parliament’s approval.
Stating that the third parliamentary elections and the 10th session of Parliament are just approaching, the justice said that the court would not hold the case for long.