The National Council’s position that former Judges cannot practice law after retirement in the amendment of the Jabmi Act may sound like a reasonable stand. This is especially so given that it has been the norm for many years before the proposed amendment of the Act.
However, when compared with the Constitution this innocent provision clashes with Article seven that gives people Fundamental Rights to earn a livelihood and practice any profession.
This fundamental right was further reinforced by the final interpreter of the Constitution, which is the Supreme Court, in its 2011 Government Vs Opposition tax verdict where it quoted Article 7 of the Constitution, which allowed a former Drangpon in the form of Member of Parliament Damcho Dorji to represent the case in court.
The above case is not a unique case but there are several laws and rules that are not in consonance with the Constitution or even with each other.
In such a situation there can be no confusion or two ways about it as the Constitution is the Supreme law of the land, and every other law before or after it has to be in line with the Constitution or perish.
It does not matter if the law or rule is passed by the Parliament or has the full backing of the government.
This is also where the issue of harmonization of laws come into place. A recent review by the government found 18 major Acts that were in conflict with each other and needed to be harmonized.
While harmonizing these laws one agency may claim superiority over the other but here again it is the Constitution that has to play the key role in democratic harmonization.
Laws as we have seen in the recent past are absolutely crucial in defining how we are governed and a bad law can cause havoc.
The original Tobacco Act of the recent past saw several people being jailed even for minor offences, and it was only the judicious and compassionate use of the Royal Kidu prerogative that prevented many people from serving long prison sentences for a minor civil offence. This was until the Parliament realized its mistake and amended the law, going after the main offenders but also preserving the liberty of ordinary citizens.
The Parliament has largely been careful about ensuring that the laws that it drafts are in keeping with the Constitution, but there have been and will be controversies. This is because the Parliament is a political institution consisting mainly of elected members vulnerable to popular religious, emotional, political and other pressures.
However, the test of a law is not so much what the majority wants at a period of time but what is right and what is in the long term interest of the nation and society. Therefore, when and if the Parliament errs, it is up to the Supreme Court to interpret the constitution and the laws and strike down any laws not in keeping with the Constitution.
Bhutan’s Constitution is not an ordinary document for some key reasons. The first is that the Constitution as listed in Article 1 is an expression of Bhutan’s sovereign will and hence its sovereignty. The second is that the Constitution is the testimony of the priceless gift of democracy by the Golden throne to the people with the intention of giving both democracy and also strengthening the country both internally and externally.
The third reason is that the Constitution empowers the people by not only giving them the right to vote and elect governments but several other important fundamental rights which are codified as laws.
The fourth major reason is that the Constitution, to perform the above roles effectively, is the Supreme law of the land that trumps over any other law.
It is time that ordinary citizens start understanding the intricacies of the Constitution and use it not only for their individual rights but also for the greater good of society.
The success of democracy in Bhutan is incumbent on individual citizens understanding the Constitution and not leaving everything to just politicians and lawyers.
“The strength of the Constitution lies entirely in the determination of each citizen to defend it.”