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Determining legality of powers first

The High Court yesterday dismissed Druk Nyamrup Tshogpa’s (DNT) petition for a Constitutional writ to declare the government granting fiscal incentives as unconstitutional. The Court also dismissed the Office of the Attorney General’s (OAG) submission of the case being subjudice.

Bound by the grounds of dismissal, the High Court did not review the issue that first brought the case to the Court. It did not determine the constitutionality of the fiscal incentives granted by the Government before May 8, 2017, the date it was tabled in the Parliament.

The ruling has , however, provided much-needed clarity on where the power rests in seeking the opinion of the Supreme Court. On August 16, the Prime Minister had submitted a petition to His Majesty to seek the Supreme Court’s opinion. The same day, a press release on fiscal incentives from the finance ministry stated that the Cabinet had requested the Speaker to consider seeking the Supreme Court’s interpretation.

While the executive is part of the legislature, the ruling reminded policy makers to not confuse the roles of the executive and legislative functions. It asserted that the power to seek the Supreme Court’s opinion is only on the Head of the State. His Majesty is also not bound to act on the reference of the Prime Minister and , for that matter ,

any Government, the incumbent or future, shall not have jurisdiction to seek intervention of His Majesty. Executive power must be derived from the Constitution or from the law and in this case, the Constitution is clear on who is empowered.

The High Court also clarified the jurisdiction of a political party that is registered but not in the Parliament. A political party’s legitimacy to move court hinges on it being elected to form the government or the opposition. Its obligation to be accountable to its voters is relinquished once it doesn’t make it through the primary round. Although the party may still feel responsible for them, they are not empowered by the choice of the majority to govern. The court ruled that DNT lacks the legal standing to sue and that the party is not directly harmed.

While both parties have the option to appeal the decision, the High Court ruling elucidates, to an extent, how and where the powers of each party rests. It becomes necessary to determine first where the parties derive their powers from, the Constitution or through the choice of people to determine if the powers were abused.

Separation of powers is important in governance .

We must also understand that separation of powers cannot be absolute and that powers and responsibilities can overlap and could be inter-related. Clarifications and understandings on how offensive a decision is to the doctrine of separation of powers help harmonise cooperation and smoothen the process of governance, thus strengthening democracy.

The ruling also cautions governments to be mindful of granting fiscal incentives for duration that extends beyond its term and advises that principles of state policy be referred to and promoted. In clarifying the powers and jurisdiction of the parties, the High Court must also protect the Constitution.

The issue of the constitutionality of granting fiscal incentives , however , hangs in abeyance.

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