THE CONSTITUTION OF BHUTAN: Principles and Philosophies by LYONPO SONAM TOBGYE PREFACE The Constitution of the Royal Kingdom of Bhutan encapsulate the people’s aspiration to preserve the sovereignty and indelible identity of Bhutan, the Monarchy’s adherence to the concept of grass-root 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. As the Chairman 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 installed and its onward march. It also narrates its traditions, culture, philosophy based in Buddhist ideology and precepts. The people to uphold Bhutan’s unique identity and the unrivalled role of the Monarchs in holding the peoples’ 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 carved out 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 (interactive sessions). The meaningful deliberations in the Drafting Committee and the desire of one and all to carve out a document, which 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 the 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 who sincerely and genuinely seeks the happiness of his people 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 How prophetic were her thoughts! The Constitution is a monument of 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.”2 Indeed, the people of Bhutan are the pillars of the survival of democracy and the preservation of its Constitution. His Majesty Jigme Singye Wangchuck and His Majesty Jigme Khesar Namgyel Wangchuck in devolving power on the people have reposed great trust in the people, so they can realize that constitutional democracy is not so much the end, but the manner in which the people seek that end. 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. 1 It must be said that the 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. 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 2 Making of the Constitution The Constitution is the Supreme Law of a State, which defines the relationship of different entities within a 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 an organic law, superior to other laws. 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.3 The first Constitution in the world was written by Solon, an Athenian lawmaker and reformer, as a reaction to Draco’s harsh laws of 621 BC. 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. 4 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.5 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 Gyalpo6 Gongsar Ugyen Wangchuck. It was in this historic “Genja”7 that our forefathers had pledged to serve and repose trust and confidence in the establishment of Monarchy. All members within the Bhutanese society agreed to the terms of the social contract by their popular choice. Since then, Bhutan enjoyed security, tranquility and happiness 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 latest being the drafting of the Constitution. The seeds of Bhutan as a nation state were sown in 1907 with the election of a hereditary monarch akin to “The Great Chosen One (Mahasammatta),8 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 men 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 legal and philosophical basis of the Constitution is 3Paper presented by Lyonpo Sonam Tobgye at the conference on Buddhist Jurisprudence in Sri Lanka, Constitution and Buddhism, 10th & 11th May, 2014. 4Paper presented by Lyonpo Sonam Tobgye at Royal Institute for Governance and Strategic Studies, Phuentsholing, A Perspective on the philosophical basis of the the Bhutanese Constitution, 21st March 2014. 5 Ibid. 6 The king of Bhutan. 7 Refer Article 2 Section 3. 8 See, Francis Fukuyama, The Origins of Political Order, 2011. 3 the historic “genja” of 1907. 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 action. In addition, the history of our nation state, the philosophical perspectives concerning the working of human relationships, the resulting social order, the past and existing political institutions, the sacrifices made by our forefathers, and the norms, values, principles and ideals espoused by and through the words and actions of our benevolent monarchs also formed the basis of our Constitution.9 The Monarchy With the establishment of monarchy and the enthronement of the first hereditary monarch, the Druk Gyalpo Gongsar Ugyen Wangchuck (1907-1926), the temporal and secular administration was consolidated and unified in the person of His Majesty.10 He united the nation, secured stability, ensured domestic tranquility, and strengthened the friendship and co-operation with British India. Speaking at the installation of the Second Druk Gyalpo, Colonel Bailey said, “I cannot refrain from referring to my sorrow at the death of my old friend, His Highness Sir Ugyen Wangchuck. I had the honour of his acquaintance for 24 years. The benefits conferred on Bhutan by uniting the country and giving peace and prosperity to its inhabitants, both lamas and laymen.”11 The Second Druk Gyalpo Jigme Wangchuck (1926-52) continued His father’s centralization and modernization efforts, built more schools and consolidated sovereignty of Bhutan. He was conscious of the protocol and dignity of Bhutan. The Third Druk Gyalpo, His Majesty Jigme Dorji Wangchuck (1953–72) is revered by Bhutanese as the father of modern Bhutan. His Majesty modernized Bhutanese society by abolishing slavery, serfdom and the caste system. The prominent political reforms initiated by His Majesty include the establishment of the National Assembly (Tshogdu Chhenmo) or the Legislature in 1953, institution of the Royal Advisory Council (Lodre Tshodue) in 1965 and establishment of the High Court (Thrimkhang Gongma) in 1967, which separated the Judiciary and the Legislature from the Executive. His Majesty also enacted the Thrimzhung Chhenmo (The Supreme Law) in 1959 which inter alia, stands out as a very unique and important piece of legislation.