Sunday, June 16, 2013 | By: CHIMI DORJI

Constitutionalism and the making of Bhutanese constitution


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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