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Why the High Court dismissed DNT’s Fiscal Incentives case against the government

The high Court has dismissed the Druk Nyamrup Tshogpa’s (DNT) case against the government’s fiscal incentive package alleging violation of the constitution on the grounds that DNT lacks locus standi or legal standing.

This is in keeping with one of the arguments the Office of the Attorney General (OAG), the government’s lawyer, had submitted on DNT suing the government for constitutional breach for the Fiscal Incentives.

In its judgment the high court said DNT has no jurisdiction to file a Constitutional Writ as DNT has not been directly harmed or has the right to invoke ‘class action suit’ as per Section 149 of the Civil and Criminal Procedure Code. Therefore, it lacks ‘locus standi’ or legal standing” as per Section 31.2 of the CCPC.  Under these provisions only a person or class of individuals, whose rights are directly affected or who suffered an actual injury, has the legal standing to sue.

Based on the  submissions of the parties, the Court observed that the DNT’s invocation of ‘legal standing’ based on Article 21, Section 18 and Article 7; Section 23 of the Constitution is not tenable. The Supreme Court in Re Government vs. Opposition ruled that “…Filing of petition against the Government by the Opposition Party and individuals who have locus standi and a concrete case or controversy must be allowed.” To uphold the binding precedent, the petition must be directly filed by those individuals who are directly affected and not by the political parties who are outside the purview of the Parliament.

The high court judgment said that the Parliamentary remedial measures have already been taken to consider any fiscal incentives to be introduced as Money Bill and other related measures to rectify the concern and the controversy related to fiscal incentives granted thus far by way of the amendment of Sales Tax, Customs and Excise Act, 2000, Income Tax Act, 2001 and other relevant Acts. In this regards, the Court cautions that any Money Bill particularly granting fiscal incentives that stretches over longer period extending beyond the term of the Government, may be cautiously vetted based on the intended mandate of a particular government elected through periodic election for a fixed term of Five Years.

The Court observes that any fiscal incentives be based on the “Principles of State Policy” enshrined under Article 9, Sections 7, 8, 9 and 10 of the Constitution and governments must endeavour to promote such principles enshrined.

The judgment states that the political and constitutional mandate of a particular government is term based and therefore, the Court observes that any past fiscal incentives or schemes should be subject to review, if necessary, by the succeeding government and subsequently ratified by the Parliament through amendment or by way of introducing a new Money Bill on those past fiscal incentives.

The judgment also stated that it is the vision of the Monarchs that the Constitutional basis of the system is the one wherein the democracy functions under the Constitution for many years to come. Therefore, in the words of His Majesty, the democratic system should be subject to constant evaluation, nurturing and finding solutions to issues through consensus, engaging the collective wisdom of Parliament and other relevant institutions for which the court’s intervention should be the last resort.

Therefore, the Court dismissed the petition as per section 32.1 (c) of the Civil and Criminal Procedure Code on the grounds and reasons cited for the lack of the petitioner’s locus standi.

Meanwhile, the court also dismissed the OAG’s submission that the case should be dismissed because it is sub-judice. In its judgment the high court said that the power to obtain the opinion of the Supreme Court is bestowed upon the Head of the State.  Therefore, the Prime Minister, as the head of Executive branch of the government and belonging to a political party, cannot obtain the opinion of the Supreme Court, as it would violate the cardinal principle of separation of powers.”

However, the DNT in a separate press release said it would not pursue the matter in the Supreme Court since it was told it had no locus standi and it instead asked the Opposition to take up the case.

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