PREFACE the Constitution of the Royal Kingdom of Bhutan
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PREFACE The Constitution of the Royal Kingdom of Bhutan encapsulates the people’s aspiration to preserve the sovereignty and identity of Bhutan, the monarchy’s adherence to the concept of grassroot level democracy and the decision of His Majesty Jigme Singye Wangchuck, the Fourth Druk Gyalpo to effectively transfer power to the people by giving to them the fundamental charter - THE CONSTITUTION. As the Chairperson of the Drafting Committee, I was associated with “the making” of the Constitution under the guidance of His Majesty and had occasion to traverse the long route from the past to the present. The book chronicles the long history of Bhutan, from beyond 1907, when the first hereditary Monarch was enthroned. It also narrates its traditions, culture and philosophy based upon Buddhist ideology and precepts and the unrivalled role of the Monarchs in holding the people’s rights as sacrosanct and divine preserving, protecting, and sustaining the rights of the people for all times to come. The book explains the intent and the concept, which are at the root of each provision of the Constitution. The book underscores the reality that the Constitution is indeed the Supreme Law of the nation and throws light on the structure of polity. It has been ingrained in the Constitution to maintain a harmonious equity between the State and the citizens. The book wends its way from the past to the present and covers the active involvement of Their Majesties and the people (public consultation) in the Constitution making process. The meaningful deliberations in the Drafting Committee and the desire of one and all to carve out a document will be a legacy for the people to enrich their lives and usher in an era of Gross National Happiness as earnestly desired by Their Majesties. Seldom has it happened in world history that a Monarch, suo moto, gives to His people an enduring gift to protect them, ensure sustainability to them and the nation and guide them to happiness and prosperity. His Majesty Jigme Singye Wangchuck sincerely and genuinely seeks the happiness of His people and is the architect and creator of the Constitution. The former Prime Minister of India, the late Mrs. Indira Gandhi said: “The richest legacy of His Majesty Jigme Dorji Wangchuck is His worthy son and successor, His Majesty Jigme Singye Wangchuck in whose hands now rests the destiny of Bhutan”.1 The Constitution is a monument to His Majesty’s vision for His people to protect and preserve their destiny. The French Statesman Turgot said: “The people are the hope of the human race.” 2ß Indeed, the people of Bhutan are the pillars of the survival of democracy and the preservation of the Constitution. His Majesty Jigme Singye Wangchuck and His Majesty Jigme Khesar Namgyel Wangchuck in devolving power to the people have reposed great trust in the people, so they can realize that constitutional democracy is not so much an end, but the manner in which the people seek to govern their country and themselves. Preservation of democracy ultimately depends on the will of the people, their sagacity and their vigilance. As aptly said, “eternal vigilance is the price of liberty” and it is this vigilance of the people of Bhutan, which will preserve the letter and spirit, and indeed the sanctity of the Constitution of Bhutan. 1 Lham Dorji, Wangchuck Dynasty: 100 years of Enlightened Monarchy in Bhutan, 2008, p.83. 2 David Gordon (ed.), The Turgot Collections, 2011, p.504. This book is a culmination of the monumental effort by the Drafting Committee members and others3. I trust the book will guide the people to understand the Constitution better and help them to play a constructive role in the destiny of Bhutan. In all humility, I dedicate this book to Their Majesties and the people of Bhutan. MAKING OF THE CONSTITUTION A nation’s Constitution is the most valued document. Preparing it is a sacred and weighty undertaking that cannot be addressed in isolation from the people. Nothing is more important in the political culture and history of a nation than a Constitution by which citizens are ruled. A crucial feature of democracy is political representation through periodic or regular elections to sustain governance by the people. According to Justice Jackson, the democratic principles in the Constitution protect the right of the people freely to form political will and make un-manipulated choices in elections.4 The Constitution is the Supreme Law of the State, which defines the relationship of different entities within the State entailing their powers and responsibilities. It is a document expressed in a simple language, which the ordinary people can understand. It responds to changing and unknown situations. It is the mother of all laws with an ever-expanding family of laws that keep the nation and its people’s behaviour within the bounds of the Constitution’s philosophy. It has a philosophical basis of internal freedom with external symbiotic existence. Buddhist ethics is founded partly on the notion of social concern and partly on the notion of the perfectibility of the individual. The Constitution will avert the tyranical laws that will subvert the basic foundation of democracy. Therefore, a Constitution has both worldly and intellectual characteristics.5 According to James Bryce, there are certain sound reasons for the general preference for written constitutions. He defined the Constitution as: “.... the whole body of fundamental rules, written and unwritten, legal and extralegal, according to which a particular government operates”. Referring to the Indian Constitution, Fali S. Nariman said: “Constitution is founded on the rule of law, and the rule of law embodies a principle of institutional morality, a principle which suggests feasible limits on power, to constrain abuses which occur even in the most compassionate administration of the laws.” 6 In modern parlance, Constitution is an act of self-determination the external aspect of self-determination which defines itself by relation to other states. The Constitution describes who has what powers. It is a map of the 3 Prof. Shamin Dalvi, Mr. Jeffrey Avina, Lyonpo Tshering Wangchuk, Dragpon Kinley Namgay, Drangpon Pelden Wangmo, Drangpon Ugyen Tshering, Dragpon Rabjam Pema Choden, Dechen Wangmo, Richa Gurung, Jigme Lodey, Chimi Dorji Shartsho, Dungay Tshering, Chhimi Dorji, Phuntsho Wangchuk, Dorji Bhida, Tingting Dema and Leki Wangmo for editing and proof reading, and Mr. Karma Nima and Kuensel printing department for designing and printing. 4 Jamin B. Raskin, Overriding Democracy, The Supreme Court Vs. The American People, 2003, p 89. 5 Paper presented by Lyonpo Sonam Tobgye at the conference on Buddhist Jurisprudence in Sri Lanka, Constitution and Buddhism, 10th& 11th May, 2014. 6 Fali S. Nariman, Indian Legal System: Can it be Saved, 2006. power in the government and describes the location of power but that may not actually identify who is an important decision maker. Constitutions have become major carriers of values, institutions and procedures around the world. Constitutions are losing their national specificity. Rousseau once called the Constitution a law engraved on the hearts of the citizens. The objective of the Constitution is to provide a sacred refuge and guidance to the nation. Solon, an Athenian lawmaker and reformer, as a reaction to Draco’s harsh laws of 621 BC, wrote the first Constitution in the world. His Constitution was adopted in 495 BC by the members, who were all of the Greek ruling class, a group based on wealth (plutocracy). Thereafter, the idea of “the Constitution” engulfed the world. Only 20 of the 190 countries with constitutions pre-date 1950.7 Etymologically, the term Constitution comes from the Latin word constitutio, used for regulations and orders. We must know the latent power of that simple word that inspired peoples and nations across the World.8 Until 1907, Bhutan fiercely fought and sacrificed in upholding her sovereignty and identity. This ordeal came to an end on Seventeenth of December Nineteen Hundred and Seven, when the first social contract was signed by the people through their officials and representatives with the First Druk Gyalpo9 Gongsar Ugyen Wangchuck. Since then, Bhutan enjoyed security, tranquility and happiness10 engendered by the dedicated and selfless leadership of our successive Kings. With the constant nurturing of democracy, many social, economic and political reforms have been introduced during the last one hundred years of monarchy, the recent being the drafting of the Constitution. The Monarchy The seeds of Bhutan as a nation State were sown in 1907 with the election of the hereditary monarch akin to “The Great Chosen One (Mahasammatta),11 which bore fruits a century later in 2008 with the adoption of the Constitution. The Constitution of Bhutan is the culmination of more than a century of the democratic culture and traditions, which existed in Bhutan since 1907. The bedrock of Bhutan as a nation right through the century has been that all persons are created equal and that they are endowed with certain inalienable rights of life, liberty and happiness. The Constitution of Bhutan embodies these virtues and secures to the people these rights, which are enforceable legally. The Bhutanese Constitution has references to legal, political, social, cultural and spiritual philosophies and principles. The establishment and election of the monarchy with inherent succession of responsibility through public choice had democratic imprimatur. It was a rational choice for collective