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70th Constitution Day of India and its reflection on democratic transition in Bhutan

Introduction

On November 26 every year, India celebrates Samvidhan Divas or the Constitution Day. Indian Constitution was adopted on November 26, 1949 and this year marked its 70th year of the Constitution. 

India is one of the largest democracies in the world with the lengthiest Constitutions (comprising 448 articles, 25 parts and 12 schedules). It has more than 100 amendments. In terms of its size and experience, Bhutanese democracy and its Constitution is world apart with only 35 articles and 2 schedules. We have just entered into the 11th year of experiences.  

Bhutan and India though different in size by way of its geography, population and the Constitution, the historical bonds between two friendly nations has been culminated by the visit of the  Prime Minister Jawaharlal Nehru in 1958. The defining spirit of Indo-Bhutan friendship was profoundly laid when the Prime Minister said to the people of Bhutan in the Royal presence of our Late Majesty King Jigme Dorji Wangchuck that: 

“India and Bhutan are members of the same Himalayan family and should live as friendly neighbours helping each other.”

As like many forbearers, many Bhutanese generations like me are the product and the spirit of the friendship between the two most extraordinary friendly countries of the world. When we talk about the two Constitutions we could proudly say that we have not only read the most bulky Constitution of the world, but also passed the grueling examinations while doing our law degrees in India. This opportunity enabled us to serve our country in its transition to democracy and our humble roles played in the making of the Constitution, governance, laws, politics, and bridging constitutionalism and rule of law in my country.

Democratic Transition in Bhutan and the Constitution

On September 4, 2001, His Majesty the King Jigme Singye Wangchuck decreed that a written Constitution be promulgated for the Kingdom. The decision of His Majesty to grant power and governance to the people was the forerunner of what His Majesty had in mind. His Majesty had desired way back in 1980s that our kingdom should eventually evolve into a constitutional democracy in which there will prevail a government of the people where they can be entrusted to be governed with the profound words that:

“That the destiny of the nation lies in the hands of the people. We cannot leave the future of the country in the hands of one person.”

The innate desire of His Majesty led Him to resolve that Bhutan should have a Constitution, which would spell out the rights and obligations of those who govern and those who are governed. His Majesty refuted the idea that the Constitution is a gift from the Throne but firmly believed that it was the King’s duty to initiate the drafting of a written Constitution for Bhutan. 

In His Majesty’s vision, the adoption of a written Constitution would go beyond defining the roles of the organs of the government and its people. His Majesty desired that the Constitution be written and adopted in times of peace to establish a democratic system, which would be in the best interest of the Bhutanese People. His Majesty said that the principles and ideals of democracy are inherently good, and a democratic system is desirable for Bhutan to reflect the aspirations of a rapidly modernizing State ensuring Security, Sovereignty, Peace and Prosperity, Justice, and uphold the fundamental rights and well being of the People.

Sources of the Constitution

The establishment of the first hereditary monarch, Druk Gyalpo Ugyen Wangchuck by the people of Bhutan with the signing of the historic social contract or Genja at Punakha in 1907 has ended the long-standing political instability in the pre monarchy era in Bhutanese history. Bhutan has since then experienced an unprecedented socio economic development and political transformation. 

The year 2008 not only saw the adoption of the Constitution, but also marked its glorious era of 100 years reign of monarchy in Bhutan along with the Coronation of His Majesty King Jigme Khesar Namgyel Wangchuck.

The succeeding monarchs have always kept the peoples’ welfare above their personal comfort. With generous assistance from India, our Kings have put forth social welfare programmes through planned development activities that benefited each and every Bhutanese.   

His Majesty the Fourth King established Local Government institutions such as the Dzongkha Yargye Tshogdue (District Development Council) in 1981 and Gewog Yargye Tshochhung (Gewog Development Council) in 1991. It became the forerunner of strengthening and establishment of political institutions and democracy at the grassroots level. These institutions allowed people to elect their own local leaders and make their own decisions. 

His Majesty always desired that the social and political system of the Kingdom should progressively evolve along a path that secures and protects a social order that is founded on justice, peace and harmony, the principal tenets of Gross National Happiness. 

Before His Majesty’s decision to initiate the drafting of a written Constitution, His Majesty has consciously and consistently strengthened the organs of the government. For instance, His Majesty has ensured full independence of the Judiciary from the Executive and Legislature and established many Constitutional Bodies such as the establishment of Royal Civil Service Commission, Royal Audit Authority, Anti-Corruption Commission, the Election Commission, Office of the Attorney General, an independent Media and Civil Society Organizations to ensure both horizontal and vertical checks and balances which are pre-requisite to sustain democracy. His Majesty had also issued a Royal Decree in 1998 relinquishing His executive powers and entrusted governance to elected Council of Ministers to prepare for democratic experience by the people of Bhutan. 

Indian Constitution and Bhutan’s Constitutional Democracy

The Constitution is a great machine of the government.  The pure organic life of the Constitution should be able to encompass ༼དུས་གསུམ་༽ or the three generations of the past, current and the future of a country. In this sense, Constitution must address and spell out the needs of the time, keep pace with development including technology, and, at the same time, preserve our rich cultural heritage, natural resources and environment on which our society is founded. 

The Constitution Drafting Committee members were not required to judge their progress by the number of days spent but by the result and its sublime endeavour to come out with the best of the constitutions. The first, most immediate and difficult task, members faced, was coming out with the basic framework and the outline of what should be incorporated in the Constitution. 

Members agreed that the Constitution must outline the broad parameters of power sharing between the Executive, Legislature and the Judiciary. Therefore, it was very important to understand the concept of power sharing or separation of powers. Separation is an indispensable means for locating responsibility and fixing accountability. An executive body, unambiguously as charged with executing a policy set by the lawmakers, can be held liable for its performance or non-performance. If that clear line of distinction and responsibility is blurred, then national and the public interest alike will be in jeopardy. 

The members were mindful that the Constitution must also secure everlasting peace which should be the basis of securing individual rights and freedom. While justiciable fundamental rights were considered sine qua non of the Constitution, it was also felt that the Constitution must also provide corresponding fundamental duties. The Article related to the “Principle of State Policies” that guides governments and lawmakers has been encapsulated with entrenched values enshrined in the Directive Principle of State Policies in the Indian Constitution.  

His Majesty although had already decentralized power to the people, it was acknowledged that the Constitution must further strengthen the devolution of power to empower the people at the district and village level. Therefore, it was essential to develop a mechanism under the Constitution to enable people to participate in the political process through periodic elections and proportional representation. Keeping in view of the modern constitutionalism, and, particularly in developing countries like ours, social welfare and economic development goals were needed to be secured by the Constitution as the premier policy to achieve the goal of Gross National Happiness. 

It may be noted that some of the unique features of the Bhutanese Constitution are reflected by not interposing or transposing of constitutional provisions from any particular country. However, Bhutan has been fortunate to learn from the positive experiences and mistakes of other constitutions. Particularly, Indian Constitution laid enormous opportunity for Bhutan’s Constitution making process. Indian Constitution is not only time tested but a living document that provided arrays of provisions that were most revered and India is the most vibrant democracies in the world. 

The constitutional debate was an enquiry and agreeing upon certain basic structure such as whether the constitution should adopt federalism or a unitary or parliamentary form of government; whether the legislature should be represented by Single or Two Houses Parliament; and most importantly when it comes to Judiciary – whether to adopt a Concentrated or Diffused system. The constitutional creation of the Supreme Court of Bhutan adopting the Diffused system like Indian Supreme Court provided the Supreme Court of Bhutan as the final interpreter and the guardian of the Constitution. This system justly guarantees horizontal check and balances with the other branches of the government while other constitutional offices equally provide delineated vertical checks and balances in a democracy. 

The creation of National Council akin to Raja Shaba in a manner that provide wisdom in law making was an important transition wherein the roles of National Council in Money and Finance Bills (including the passing of Budget) had to be clarified by the First Constitutional Case decided by the High Court and later affirmed by the Supreme Court of Bhutan.         

Indian Constitution illuminates the world as the most working Constitution. I believe that it is due to the coordinated efforts of all its institutions and most importantly its citizens who uphold the Constitution as their divine avatar. Modern constitutional theorists acclaim that for the Constitution to work and survive, there has to be a coordinated effort to uphold its provisions under the principle of “coordinated construction theory”. Bhutan’s transition to democracy has justly invoked that idea, particularly when our political institutions and Members of Parliament sanctify constitutional provisions and pitch their argument as to whether one’s actions including government is constitutional or not. 

The Supreme Court of India’s landmark decisions spanning over decades were of particular significance to Bhutanese Constitution making. We were aware and the idea was that -whatever contestation arising out of constitutional interpretation by the Supreme Court of other countries as well as cases resolved by the Supreme Court of India had to be addressed in our Constitution itself. Among many cases, case like Kesavananda Bharati Vs. State of Kerala, which laid the principle of constitutional “Basic Structure Doctrine” incorporating supremacy of the constitution, rule of law, parliamentary form of government, welfare state, doctrine of separation of power, principle of free and fair election, equality before the law and judicial review were of direct relevance to the Bhutanese Constitution making. The recent decision by the Supreme Court on Aydohaya case which invoked a win-win situation is landmark for any judiciaries to reckon with. We expect that Bhutanese judiciary in transition and in times to come will imbibe similar rulings – what I say is judging beyond the traditional concept of what is right and wrong.    

It may be noted that we were fortunate to have the current Attorney General of India, K.K. Vennugopal as our constitutional advisor during the advance stages of the draft Constitution. His pro bono service and his wisdom and guidance in reviewing our draft Constitution ensured the inviolable catena of friendship cemented through Constitution and democracy in Bhutan. His resounding prayers were:        

“This Constitution, I have no doubt will project Bhutan into the 21st century, by arming the people with a powerful catena of basic rights, and concerting the nation into a functioning constitutional democracy.”

Speaking to the members of the Bar Council of Maharashtra and Goa at the Bombay High Court in 2014, the Chairman of the Constitution Drafting Committee former Chief Justice Lyonpo Sonam Tobgye sums up on the resounding influence of India’s Constitution in the making of Bhutanese Constitution in the following words: 

“Dr. B.R. Ambedkar’s words and deeds move the nation and stir the soul through the Constitution of India and roars through the lips and pages of judgments from the Judiciary of India. His constitutional values and avatars in the Judges are the agents of social and economic transformation and protectors of liberties in post-independent India. His embedded social and economic values are transformative and reformative, reminding India of its glorious past and the promises of its great future. His constitutional principles and germane values soared and traversed the oceans and the mountains of the globe. Bhutan was a grateful recipient of this wisdom.”

Conclusion

The best constitution should be the one, which is religiously followed both by the State and its people. The Constitution is all about how it is practiced in its true spirit. It is said that the best of a Constitution is not entirely dependent on the framers. It is the history of a situation that makes a great Constitution. 

Bhutan’s transition to democracy with three succeeding General Elections under the Constitution has endured its constitutional goals of ensuring social and economic justice with political stability and the pursuit of good governance. 

His Majesty on the adoption of Constitution said:

“…This Constitution is the most profound achievement of generations of endeavor and service. As it is granted to us today, we must remember that even more important than the wise and judicious use of the powers it confers, is the unconditional fulfillment of the responsibilities we must shoulder. Only in understanding our duties will the exercise of our powers be fruitful. If we can serve our nation with this knowledge and in this spirit, then an even brighter future awaits our country.…this Constitution was placed before the people of the twenty dzongkhags by the King. Each word has earned its sacred place with the blessings of every citizen in our nation. This is the People’s Constitution. And today, through this, my Hand and Seal, I affix on to the Constitution of the Kingdom of Bhutan, the hopes and prayers of my People.”

A condensed version of the keynote speech, Justice Lungten Dubgyur delivered at the 70th Constitution Day of India ceremony on November 26 

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