PDP rebuts the OAG on legality of allowing Tobacco sale

The PDP President also explains why the party took a stand now after a long hiatus

Clarifying the PDP position the PDP President Dasho Tshering Tobgay said that since the current government has come they tried their best to stay quite as they are outside Parliament, there is an Opposition party and other checks and balances and they wanted to support the government with COVID-19.

“But when it becomes too obvious and the violation is the biggest by the government till date and something to do with the rule of law then PDP has to speak as it has always been passionate about the rule of law from the days of PDP as an Opposition party with the Tax case,” said Dasho.

He said that rule of law needs to be protected and it is such a big issue but everyone is silent when the government should be held to account.

The President said that PDP is not questioning the intent and aim of the move to curb smuggling, but he said that PDP is questioning the way it was done through an executive order when a special session of Parliament could have called to amend the Tobacco Act.

The PDP, earlier in the week, issued a press release pointing out how the government’s decision to allow the sale of tobacco from duty free outlets was a violation of the Tobacco Act and also

violated Article 20 section 8 of the Constitution of the Kingdom of Bhutan that prohibits the executive from ‘modifying, varying and superseding any provisions of the law made by Parliament or a law in force’.

In response to this the Office of the Attorney General responded to a media outlet that the government had consulted it and the government did not violate the Tobacco Act or the Constitution.

The PDP has rebutted this stand of the OAG.

PDP said while most countries have ex ante laws or parliamentary endorsements to deal with emergencies such as the COVID-19 pandemic, Bhutan does not have such emergency laws although Bhutan has a provision on Emergency under Article 33 of the Constitution.  Therefore, concurrence of Parliament is essential for any ex post measures of the government if such measures have the potential to violate any laws made by the Parliament.

The party said that while COVID-19 has been declared a pandemic by WHO, and is a grave situation Bhutan has not declared an emergency under Article 33 of the Constitution. “Therefore, if it is to be treated as an emergency now, it must undergo the mandatory procedures provided for under Article 33 of the Constitution,” said the release.

It said that any executive measure overriding any provision of a law passed by Parliament must have a source in some other laws, which have the effect of paralyzing this provision in case of an emergency. For example, the Disaster Management Act has several provisions which empowers the central and local governments to override provisions of other acts such as the Land Act and the Local Government Act.

The release said the OAG has said that the right to import tobacco has become defunct by the lockdown and therefore, the government is under an obligation to ensure tobacco consumers get their quota of tobacco products.                                          

“The right to import tobacco is a legal right given by the Tobacco Act and not a fundamental right given by the Constitution. Therefore, the State has no constitutional obligation to supply tobacco to consumers unlike essential items like food and basic necessities.  It is in the discretion of the consumer to import or not, and so if the circumstances do not favor importing by consumers themselves, it may not be right for the government to act by violating the very law that is protecting these consumers. We must not forget that the Tobacco Act is meant for the protection of the health of the consumers and therefore, such action of the government to supply tobacco products to its citizens defeats the core objective of this law,” said the release.

PDP said that the OAG also said that Article 20(8) of the Constitution shall apply only in normal circumstances.

“The Government has not declared any emergency as of now. Even during an emergency, no laws can be overridden until amended and not all fundamental rights can be suspended. While the State can impose certain restrictions on fundamental rights under Article 7(22) of the Constitution, it can do so only by law and not through executive orders or circulars.  The word “by law” in this article is of paramount importance as it seeks to protect the violation of fundamental rights by the State through executive orders and circulars in the guise of emergency requirements,” said the party.

“The OAG also stated that several rules such as closure of trade and business, came through executive orders, but there was no emergency sessions called to decide this,” said the party.            

PDP rebutted saying that these executive orders are sanctioned by the Constitution itself under Article 7(22) as well as other existing laws for enforcement agencies such as the Police Act.

Therefore, the Government is authorized to impose reasonable restrictions on trade and businesses through these laws sanctioned by Article 7(22) of the Constitution.  Similarly, the Police are following these lawful orders as per various provisions of laws, include the Police Act.

“Therefore, the notion of the OAG that the Government can give any order and the enforcement agencies shall carry them out without question even where these orders are not sanctioned by law, is a scary proposition of law. We are not talking of administrative actions by the government but legal enforcements touching the rights of citizens here.  Therefore, as long as these actions of the Government are administrative in nature or are sanctioned by a law passed by Parliament, it is not necessary for such actions to be decided in an emergency session or even in a normal session. It already has the force of law,” said the release.

PDP said that in order to justify the flagrant violation of the Tobacco Act and the Constitution by the government, the OAG has also stated that countries across the world have imposed several lockdowns through similar executive orders.         

PDP said if some research is done on how most countries have enforced lockdowns and dealt with exigent situations, it will be found that they have done so with the legal backing of several ex ante laws, the most common being emergency laws.

“So while prima facie it may seem that the governments of these countries have been taking ad hoc measures at will, we see that their actions are either backed by law or have congressional or parliamentary endorsement, as these are essential traits of a democracy, unless of course if they are not democracies or bogus democracies,” said PDP.

PDP said the OAG’s strong opinion that “when it’s a public exigent situation, then the law becomes secondary and the government has to respond,” is a scary proposition of law.  

“Even during emergencies, in order to protect the fundamental rights of the people, the State under Article 33(7) of the Constitution may suspend only non absolute rights under Sections 2, 3, 5, 12, and 19.  Rights under the rest of the 17 Sections cannot be suspended in an emergency as these rights are absolute rights,” said PDP.

It further said that in the present scenario, the Government has not even declared an emergency and therefore, to say that in this COVID-19 situation the law becomes secondary denotes that the government can take any action regardless of whether or not it is in conformity with the Constitution and other laws including Parliamentary decisions.

“This is in utter disregard of our Constitutional safeguards and the fundamental framework of the institution of democracy itself,” said the party.

PDP said the government, by setting up tobacco outlets and selling tobacco products, has not only violated the Tobacco Act but is an abettor and accomplice to the violation of this Tobacco Act by the people who bought tobacco products from these outlets since even buyers are also liable for penalty as per Section 11(C) of the Tobacco Control Act 2010, for buying of tobacco within Bhutan.

It said the complete disregard for numerous clauses of the Tobacco Control Act of 2010 and its Amendments, thereby resulting in the flagrant violation of Article 20(8) of the Constitution, is a clear attempt at Salami slicing of Constitutional safeguards against executive encroachments. 

“By this act of flagrant violation of Article 20(8) of the Constitution, the Ruling Party is risking dissolution under Article 15, Section 11(a) of the Constitution since the activities of the Ruling Party are in contravention of the provisions of the Constitution,” said the party.     

“Therefore, the PDP has strongly expressed its concerns over these actions of the government, not for any political mileage but for safeguarding the provisions of our laws and our sacred Constitution that are the sacred pillars of our democracy, bestowed on the people of Bhutan from the Golden Throne,” said the party.

It said that as a Party outside the Parliament, PDP has no joy, specially at this time, in confronting the ruling government, yet the inaction, nonfeasance and apathy of those inside the Parliament has compelled the Party to stand up for what it firmly believes in – the Rule of Law.

 PDP said, “We take this opportunity to thank His Majesty the Druk Gyalpo for His selfless service, Prime Minister and the Government, civil servants, RBP, RBA, RBG, Desuups, and particularly our Health staff, and all those engaged in the frontline to fight the COVID-19.”

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