Generally the concept of constitutionalism refers to “a complex of ideas,
attitudes, and patterns of behavior elaborating the principle that the
authority of government derives from and is limited by a body of fundamental
law”[1].It
basically means the idea that government should be limited in its powers and
that its authority depends on its observation of these limitations. The limitations
relate to power of three branches of the government, the legislative, executive
and judicial powers[2].
Further, for government to have limited power and to have limitations on its
authority, constitutionalism
comprise of many principles. Louis Henkin enunciates
certain tenets of constitutionalism, which according to him includes government
according to the constitution; the rule of law, separation of power; sovereignty
of the people and democratic government, constitutional review, independent
judiciary; limited government, guarantee of individual rights, and checks and
balance[3]
With
regard to constitutionalism in Bhutan, going by above definition of
constitutionalism and looking back the way our country was functioning until
2008, constitutionalism was prevailing in Bhutan long before the adoption of
Constitution itself. Moreover, a country with a
written constitution does not necessarily practice constitutionalism. Like most
socialist constitutions, although written, do not place limits on what the
government can do despite constitutional government being a limited government.
Similarly a country without a written
constitution, on the other hand, may also operate under constitutionalism. Like
the United Kingdom does not have a written document called ‘The Royal Constitution’
but no one doubts that the British government is not a constitutional
government. Although Britain does not have a single written constitution, it
has a number of documents that have constitutional force[4].
Their written documents, together with the British political and legal
traditions, form the basis of a constitutional government.
In Bhutan until 2008 we did
not have written constitution but we had many laws in placed. Ever since the
codification started in 1957, in every legislation, to some extent some
principles of constitutionalism were already included and we have been
following and practicing too. We already had separation of powers and independence
of judiciary. We also had Judicial Service Act of Bhutan, 2007 in place which
guaranteed the independence of judiciary. We had Lhengye Zhungtshog in placed long time back which was performing
executive functions of the government
and National Assembly as legislature. The judicial review was also existed long
before 2008. Further, the decentralization of power started since 1981 with
establishment of DYT and further establishment of GYT in 1991 and devolution of
executive power to Lhengye Zhungtshog in
1998 by His Majesty the Fourth Druk Gyelpo, which was actually the gradual
evolution of democratization process.
Hence, these all testimonies that Bhutan was operating under
constitutionalism long before adoption of written Constitution in 2008.
As aforementioned, the practice
of constitutionalism prevailed in Bhutan long before adoption of written
Constitution of Bhutan in 2008 but embodiment of principles of
constitutionalism into written form to a supreme document so called
constitution or the making of constitution started only from 2001. Unlike other
countries, in Bhutan no lives were lost, no blood was shed, and no violence was
prompted in pursuit of having the written constitution. Neither there was any
external pressure nor internal pressure or compulsion to have written a
constitution in Bhutan. The idea of making the Bhutanese Constitution was neither
demanded nor originated from will the people of Bhutan but rather it was a
shocking as well as a golden gift from our far sighted and visionary leader, His
Majesty the Fourth Druk Gyelpo.
His Majesty Jigme Singye Wangchuck made the declaration of the
need to draft a written constitution to the nation on 4th of September 2001. Accordingly under the Chairmanship of Chief
Justice Lyoonpo Sonam Tobgye 39 member drafting Committee was formed which
comprised of representatives from all sections of the society. The actual process of
drafting started from 30th November 2001 with inauguration by His Majesty the
Fourth Druk Gyalpo. The drafting committee after having many deliberations and
meetings, and after referring more than 100 constitutions across the world,
lifting their best principles of constitutionalism and avoiding the worst
practices of their constitutionalism, they came out a final draft in 2005 which
was then distributed to Public for their comments. Thereafter His Majesty the
Fourth Druk Gyelpo took pain to go every
Dzongkhag for consultation with people on the draft Constitution and finally
after completing the consultation, the Constitution of the Kingdom of Bhutan
was adopted in 2008 by first ever democratically elected government. Since then
Bhutan has been experiencing true constitutionalism in every aspect.
Some
jurists claim that mere existence of written constitution does not mean in practice there is genuine constitutionalism
rather despite having constitution some countries have facade
constitutionalism. Like in South
Africa under apartheid there was a constitution and respect for it, a separate
judiciary, but no universal adult franchise and permanent exercise of emergency
powers[5],
hence despite having constitution there was no genuine constitutionalism in
practice. As far as the Bhutanese Constitution goes, all the best principles of
constitutionalism are embodied in our constitution like separation of power,
rule of law, independence of judiciary, judicial review, protection of
individual rights, etc. Despite our constitution being just five years old, in
practice there exists a genuine constitutionalism. In the case between
Opposition Party and the Government, when the Supreme Court of Bhutan
declared the raising of tax by government without following proper procedures was
unconstitutional, it clearly sent the message that there is rule of law,
independence of judiciary and check and balance exist in practice. Therefore,
till now in Bhutan after adoption of Constitution genuine constitutionalism
exist both in letter and in practice.
[1] Don E. Fehrenbacher, “Constitutions and Constitutionalism in the
Slaveholding South “ University
of Georgia Press, 1989, p. 1.
[2] “What is constitutionalism”
available at http://www.hrschool.org/doc/mainfile.php/lesson49/187/
(last accessed
on 4/06/2013.
[3] Ibid.
[4] These
documents include Magna Carta (1215), the Bill of Rights (1689), the Act of
Settlement (1701), and certain special acts of the British Parliament.
[5] Mark Cooray
“Constitutionalism Means More Than Just Having A Constitution” , available at http://www.ourcivilisation.com/cooray/btof/chap171.htm (last accessed on 4/06/2013)
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