In the recently concluded session of the Parliament the National Assembly (NA) and the National Council (NC) could not reconcile some key differences over the so far low key Jabmi Amendment Bill.
They decided to go for a joint sitting in the next session of the Parliament which will be this year.
However, hidden in one of the key differences is an issue that poses larger Constitutional questions and also drags in the Supreme Court.
The difference being that while the NA is in favour of amending the Jabmi Act to allow former Drangpons to practice, the NC is not in favour of this amendment and wants to retain the status quo.
The Constitutional issue arises as the National Council’s stand is not in keeping with the Constitution as per the 2011 Government Versus Opposition party verdict on the tax case.
In the tax case the then ruling government represented by the Office of the Attorney General (OAG) had argued that the Opposition MP Damcho Dorji could not represent the Opposition party as he was a former Drangpon.
They had argued that the section 24 of the Jabmi Act had specifically prevented former Drangpons from practicing.
The Opposition party MP had cited Article 7(10) of the Constitution on Fundamental Rights challenging section 24 of the Jabmi Act saying that it violates the fundamental right of a person to practice a lawful trade.
The High Court where the case was first fought ruled in favour of the then Opposition MP, but ignored the Constitutional aspect of the case and gave different reasons for allowing Damcho Dorji to represent himself.
According to the High Court’s judgment Damcho Dorji had resigned as the former Attorney General to join politics and so he was not a Drangpon when he left his post. The court also said that the Jabmi Act allowed Drangpons to represent themselves, and that Damcho Dorji was technically not a ‘retired Drangpon’ but one who had ‘resigned.’
The then OAG picking up on the High Court’s distinction of ‘resigned and retired’ challenged it in the Supreme Court saying it was the same thing as per the authoritative Dzongkha text. The OAG in its appeal to the Supreme Court accused the High Court of Judicial activism and questioned its intention saying it would tarnish the image of the judiciary at the cost of the society.
Further, the OAG in its appeal said that the intention of section 24 of Jabmi Act was to prevent former Judges from appearing before courts so that they could not get special advantage due to their advantage of familiarity with former peers, access to privileged knowledge and also to preserve the sanctity of the post of former Judges.
The then OAG submitted that its position is not affected by the ruling on this particular subject and that it is immaterial to the case. However, the OAG said that the above argument has been submitted for consideration of the Supreme Court for the benefit of protecting the long-term interest of the judiciary.
The Supreme Court in its final verdict upheld the right of Damcho Dorji to represent himself though its reasoning was completely different from the ones given by the High Court.
The Supreme Court verdict took up the issue of the Jabmi Act to answer much larger questions around the issue of livelihood and the supremacy of the Constitution over laws enacted even before the advent of the 2008 Constitution.
In its verdict the Court said that the provision of the Jabmi Act “may be in contravention to Section 1 (right to life – to earn a livelihood) and Section 10 (right to practice any lawful trade, profession or vocation) of Article 7 of the Constitution” that covers Fundamental Rights.
With the main interest being on the Opposition winning the tax case this significant aspect of the judgment of the Supreme Court was lost in the larger tax issue.
Therefore, the judgment if re-examined did not only give a verdict on the tax case but also showed the supremacy of the Constitution over any other laws, and in doing so, clearly interpreted that former Drangpons still have a Right to livelihood after retirement and can practice as Jabmis or lawyers.
Apart from the legal point this 2011 Supreme Court verdict has in theory already opened the doors for former Drangpons to practice law.
In a full cycle, in December 2014 Damcho Dorji as the Home Minister introduced the Jabmi Amendment Bill in the National Assembly whereby clause 24 had been removed. The Bill was passed in the NA 2015 and sent to the National Council which among other differences declined to accept that former Drangpons can practice as lawyers.
The NC’s stand, witting or unwittingly, is a direct challenge to the 2011 Supreme Court verdict that had interpreted the Constitution and had pointed out section 24 of the Jabmi Act as being unconstitutional.
Though the Jabmi Amendment Act has mainly been a low key affair there are not only larger Constitutional and Democratic issues around it but also the issue of a potential clash between the National Council and the Supreme Court.
However, as per Article 1 section 10 and 11 of the Constitution the Supreme Court is the final arbiter of the Constitution. Article 1 Section 10 says “All laws in force in the territory of Bhutan at the time of adopting this Constitution shall continue until altered, repealed or amended by Parliament. However, the provisions of any law, whether made before or after the coming into force of this Constitution, which are inconsistent with this Constitution, shall be null and void.”
Section 11 says. “The Supreme Court shall be the guardian of this Constitution and the final authority on its interpretation.”
With both houses opting for a joint sitting in the next session after the NA and NC were not able to iron out differences, the larger Constitutional and legal issues will still be at play until then.