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The Making of the Constitution

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Conclusion
Bhutan witnessed a peaceful transition to democracy under the leadership of the Wangchuck dynasty with the adoption of the Constitution. The Constitution was drafted on the personal initiative and, the wise and courageous decision of His Majesty Jigme Singye Wangchuck, the Fourth Druk Gyalpo.

Following the royal command, the Constitution Drafting Committee was established. It comprised of representatives from the twenty Dzongkhags directly elected by the people1, two members from the Dratshang2, the Speaker of the National Assembly3, seven members from the Royal Advisory Council4, three from the Judiciary5, and six from the Government6. There were thirty-nine members chaired by the Chief Justice of Bhutan.We had honest disagreements and heated debates.8 It was an honour and a pleasure to work with the members.

Having deliberated exhaustively over several meetings, the draft Constitution was submitted to His Majesty after ten months. His Majesty then proffered a copy of the draft to the Indian Ambassador on the same day for onward despatch to Mr. K.K. Venugopal, Senior Advocate, the Supreme Court of India. Thereafter, eight consultative meetings were held between him and the Bhutanese counterparts9. Concluding the corrections, Mr. K.K. Venugopal stated:

“Here ends the most modern Constitution with maximum fundamental rights.”

Thanking him for his work, His Majesty in a letter to Mr. K.K. Venugopal on 27th October 2004:

“I would like to inform you that I would be presenting the Draft Constitution of the Kingdom of Bhutan to our Cabinet in November this year. The Draft Constitution will then be distributed to the twenty districts of our country for the input and views of the people. In framing the Constitution, my consideration has been to introduce a democratic political system that is best suited for Bhutan, a system that will ensure good governance and fulfill the aspirations of the Bhutanese people. While I realize that a large section of our people, especially in rural Bhutan, may not understand the functioning of parliamentary democracy, it is necessary to take full advantage of the unique opportunity provided by the peace and stability we enjoy today to introduce the new political changes.

“As an internationally eminent lawyer from India, a country which is our closest neighbour and friend, you have been most forthcoming and sincere in sharing your views and expertise with our Constitution Drafting Committee. It gives me great pleasure to recognize your valuable legal advice in a task of great national importance for us, the drafting of our nation’s Constitution. Our Drafting Committee was indeed privileged to receive your friendship and benefited immeasurably from your counsel and wisdom in the constitution making process.

“I would like to express my deep appreciation to you for the distinguished service you have rendered to Bhutan and for your valuable contributions in further strengthening the close ties of friendship and goodwill between our two countries.”

Cross-checking
The Constitution of Bhutan is comprehensive and brief. It combines tradition with modernity to usher the nation into the 21st century as the harbinger of peace and advocates scientific temper with a spirit of humanism. Mark R. Thomson said;

‘…like Montesquieu, Hegel believed that the best constitution for a nation derived from its own specific cultural, historical, climatic and geographical conditions.’

The Constitution has several unique features. Firstly, it is among the fifteen shortest constitutions in the world. Secondly, most of the words and phrases enshrine principles and doctrines with their sources10, epistemology and political philosophy. Thus, His Majesty informed the first public consultation meeting in Thimphu that:

“We studied more than 100 different Constitutions, not to copy their contents, but to draw from them and make the contents of the Bhutanese Constitution more meaningful.”

Finally, every provision of the Bhutanese Constitution was compared with the respective clauses of the constitutions of twenty-two countries11.

Correction of the Draft 
His Majesty devoted considerable time in improving the document and meticulously studied every word, phrase and sentence. Thereafter, His Majesty sent the revised draft to the Chairperson of the Constitution Drafting Committee on 15th October 2004 to be reviewed by the Legal Committee12 formed under the Chairperson of the Constitution Drafting Committee. The process of corrections between His Majesty and the Legal Committee was phenomenal. The Chairperson submitted to His Majesty the corrections in the form of “submissions” with justifications, analysis and background. The first submission was submitted on 4th December 2004. There were more than four hundred submissions in total.13 Meanwhile, His Majesty sent the draft to the Council of Ministers on 1st November 2004.

We received the copy of the corrections of the draft submitted to His Majesty14 by the Council of Ministers on 19th January 2005. The Legal Committee incorporated relevant changes based on their recommendations and comments.15 After the submission of the improved draft, a special session of the Council of Ministers was convened on 21st March 2005. It was the last formal discussion on the draft.16

The process of correcting the draft generated discussions to resolve the differences with positive decisions and created awareness to challenge or confirm its accuracy and general fairness with objective criticisms and dynamic reviews.

Unveiling of the Draft Constitution
The unveiling of the draft Constitution was unique and signified His Majesty’s hope that the Constitution as finally adopted would be the result of collaboration between His Majesty and the people of Bhutan. Upon the royal command, the draft Constitution was distributed to every household, Government officials, students, institutions and foreign agencies based in the country.

With the distribution of the draft to the people on 26th March 2005, the voice of nation spoke and His Majesty beckoned us through the pages of the draft invoking and endowing hope and abiding aspirations for the enduring glory of Bhutan. Such unprecedented opportunities unveiled to make Bhutan a great and glorious nation in the world. It is His Majesty’s enduring message for the best interest of the people, their security, and sovereignty of the nation to fulfil his unfailing trust and unwavering confidence to build Bhutan into a promising and functioning democracy with responsible and accountable Government based on the popular will and choice of the people. Democracy assures participation, whereas rights protect dignity. However, democratic principle of representation and participation cannot demean and detract from the economic necessity of prudence and other provisions of the Constitution.

This historic document is the culmination of His Majesty’s careful, consistent and benevolent endeavour towards democracy with Dzongkhag Yargye Tshogdu, Gewog Yargye Tshochhung, and devolution of power to the elected Council of Ministers and adult franchise, which has a pervasive and everlasting influence on the future of the country.

Simultaneously, the draft Constitution was uploaded on the internet so that the people of other countries could also look at the draft. It was a wise initiative of His Majesty to put our draft on the internet so that not only the views of the Bhutanese living abroad could be sought, but it provided an opportunity to receive the views of any interested person from any part of the world. It generated several discussions and some positive recommendations, and also created awareness amongst the people.

Public Consultation
His Majesty the Fourth Druk Gyalpo commenced the process of public consultation from Thimphu on 26th October 2005. He personally participated in public consultation in seven Dzongkhags namely Thimphu, Haa, Paro, Punakha, Wangduephodrang, Mongar and Trashigang. Similarly, His Majesty Jigme Khesar Namgyal Wangchuck conducted his first public consultation in Lhuentse on 24th December 2005. He covered thirteen Dzongkhags namely Lhuentse, Trashi Yangtse, Pemagatshel, Dagana, Tsirang, Sarpang, Chukha, Samtse, Samdrup Jongkhar, Zhemgang, Gasa, Bumthang and Trongsa. His Majesty concluded the public consultation at Trongsa on 24th May 2006. The draft Constitution was translated and read in three dialects namely Dzongkha, Tshangla and Lhotshamkha.17

Speaking to the people during the public consultation, His Majesty the Fourth Druk Gyalpo said that the draft Constitution has been distributed to them twice. His Majesty reminded them that the public consultation was the forum for them to raise issues, and to try and make the Constitution beneficial for the country. After reading every Article, opportunities were given to the public to comment and raise questions.

The Secretariat of the Constitution Drafting Committee documented the verbatim of the proceedings of all the public consultations and recorded them in toto. There were about 327 persons who commented on the draft Constitution during the consultation process. Public consultation process further sensitized the public through various medium18, created awareness and helped them understand the concept and purpose of a Constitution and Constitutional Democracy, besides their direct and indirect contributions. Some of the comments received led to corrections and modification in the language of the final document. The incontrovertible evidence, however, was that every citizen knew most of the words used in the Constitution.

Challenges
The Constitution Drafting Committee had many challenges such as:

(a) To follow a credible process to convince the genuine objective to establish a constitutional monarchy;

(b) To liberate ourselves from the prevailing situations, beliefs and prejudices;

(c) To balance the spiritual, social, political and constitutional values and power structure;

(d) To enhance the political will and political capacity, and to work on the best democratic principle of voting;

(e) To ensure that different theories/models of choice and sovereignty such as collective choice, informed choice, reciprocal altruism, public approbation, freedom of choice, public choice, preferential choice, social choice, territorial sovereignty, popular sovereignty, the legal and political sovereignty, etc are considered and incorporated;

(f) To incorporate the doctrines relating to freedom of choice with general will, greatest number, greater good, common good, well-being, social, political and legislative morality, rights and duties. It has been a phenomenal undertaking in the crafting of the provisions;

(g) To guarantee safety under the new power, assess competing interests and to curb encroachment by extra constitutional power. Moreover, we had to ensure checks and balances;

(h) To decentralize and distribute power at the policy, supervisory and operational levels under the implied principles of the delegation of power. Omnipresence of any individual at different levels would derogate happiness living under shared power;

(i) To identify types of constitutions, which is rigid to establish values and be flexible to survive and to thrive constant change. Therefore, balancing was a Herculean task;

(j) To ensure vertical, horizontal and institutional checks and balances to counter the tyranny of the majority or to remedy populist democracy;

(k) Ensuring accountability and responsibility through free, fair and periodic election to provide opportunity to change;

(l) To design a system of election to elect and reward good governance, and perpetuation of a dominant governing party has been an intellectual consideration while drafting Article 15;

(m) Despite different opinions about the value and the contents of the Constitution, His Majesty’s leadership of unwavering firmness and freedom that hears honest views contributed to the making of the Constitution. His Majesty graciously commented that the draft was of good standard;

(n) After unveiling the draft Constitution, we were inundated with comments and drafts from within and outside the Country. The Bhutanese Constitution is a product of reconciliation, consolidation and refinement of many years of wisdom from Bhutan and foreign countries. Nevertheless, we evaluated them most carefully as Gandhiji said, “Adaptability is not imitation”;

(o) Taking objective views of the comments made through the media and letters submitted by many governments, institutions, multi-lateral agencies and individuals. Generally, the foreigners had both positive and negative comments, which made us to contemplate and re-visit the provisions; and

(p) Taking balanced views submitted by the agencies and individuals and incorporating them into the draft to avoid institutional bias and strengthen institutional integrity.
Contributed by 
Sonam Tobgye, 
Thrimchi Lyonpo
To be continued

The Constitution is the triumph of truth and virtue over vitriolic criticisms and lurking suspicions. Therefore, we were cautious and conscious of the sacred responsibility. The Drafting Committee had honest disagreements reflecting diversities of opinion and interest leading to progressive development and solutions. Consequently, the Constitution is morally defensible, socially rational and politically democratic.

It has interlocking system and enshrined principles, doctrine and legal paradigms. It is rigid to establish normative values and flexible to be dynamic to embrace changes. The Constitution has utilitarian reforms of constitutional system with social security, social regeneration and legal sanctity, which sets out the framework and the principal functions of the organs of the government or state and declares the principles governing the operation of those organs and regulates the relationship of these organs with the people.

His Majesty devolved his power to the people without their demand. It was a courageous act to face the overwhelming opposition to draft the Constitution. It is exemplary and worthy to emulate this shining example of detachment. In Henrik Ibsen’s words,

“…the strongest man in the world is he who stands alone.”19 

No artist can faintly glimpse his contribution. No song can express his love for the Nation and no historian can comprehend his transcendental greatness. His Majesty is the peerless embodiment of greatness.

The Constitution is the acknowledgement of the contribution by the Wangchuck dynasty during the last century, celebration of democracy and well being of the nation. It enshrines the original will of the people in determining its sovereignty. The Constitution is self-constraining with values, institutions and procedures to advance constitutional compliance. Equality and reciprocity are part of the Constitution that enhances the moral and political principles that breathe life into our public institutions.

Our Constitution is the product of a careful consideration to preserve and promote the ideals of sovereignty, nationhood, peace, stability and liberty by drawing from the strength of its cherished historical foundation and consideration for the present and the future well-being of the people and the nation.

His Majesty Jigme Khesar Namgyal Wangchuck concluded the public consultations at Trongsa with the following statement:

“I am honored and privileged to follow the command of His Majesty to meet with the people and discuss the Constitution. We have completed the consultation meeting on the Constitution with the last meeting in Trongsa. His Majesty started the first 20 Dzongkhag Constitution meeting at Thimphu and I am very happy to conclude the meeting in Trongsa. After the completion of the meeting, the people should not forget about it, instead as I have said before, it is very important for us to make our country better day by day.

It is a very important day. Our responsibilities and duties are also very essential and important. The main foundation of our country is the Constitution. We are all privileged to be born in this decade and to get an opportunity to serve His Majesty the King. We are also fortunate to participate in such an important discussion on the making of the Constitution. Our responsibilities and duties are very important. If we could carry out our responsibilities with full commitment, it will not only make our future citizens happy and peaceful, but will also strengthen our country.

If we fail to carry out our duties, then our country will become unstable and unsecured. His Majesty, by placing his full faith and confidence in the people has entrusted us with all the powers. Therefore, it is very important for us to serve with full dedication and commitment. At this historic moment, first of all, I would like to submit my gratitude to His Majesty. Moreover, I would like to pledge myself more than before.

A King like His Majesty Jigme Singye Wangchuck has never been born in the Kingdom of Bhutan. I know this more than anyone else. Apart from serving His Majesty since my childhood, I had the opportunity to accompany and travel with His Majesty when He visited the Dzongkhags. Moreover, even at the Palace, I had the opportunity to serve and speak with His Majesty. Therefore, I have experienced His Majesty’s leadership on a daily basis. I have been able to understand His Majesty very well. His Majesty is like my root Lama and Teacher. I am very fortunate to have such an opportunity. It is also lucky for the people to have such a King in our country.

My only prayer is to pray for a divine human being like His Majesty to be born in the Kingdom of Bhutan. Our people have been serving His Majesty with full devotion until now. Similarly, hereafter also, when His Majesty works for the future of our country, it is very essential for our people to serve as much as they can. By serving His Majesty, it is like serving our people and our future generation. I am grateful to all the members of the Constitution Drafting Committee who have put all their efforts during the making of the Constitution by referring to various other constitutions of the world including our customs, culture and practices.

The Chief Justice Lyonpo Sonam Tobgye, has also served His Majesty with full devotion and dedication. He has served not only the present Druk Gyalpo, but has also served the Third Druk Gyalpo. Even in making of this Constitution, all the deliberations and work were done under his guidance. He along with the members of the Drafting Committee has drafted this exemplary Constitution. For this, I am grateful from my heart to the Chief Justice and the members of the Drafting Committee.

I also would like to thank Secretary Dasho Tashi Phuntshog who has not only served His Majesty and our country with full commitment and devotion, but also in joining the consultation meeting of the Constitution.

The peace and prosperity, which we are observing in our country today, is the fruit of the hard work of our forefathers in protecting and preserving our independence and security. Our country has not been formed during the period of one or two generations. Our forefathers and succeeding generations have protected it for thousands of years. The country, which has been formed by securing the security, protecting the independence with all the hardships and sacrifices made by our past generations of Bhutanese, has now been delivered to us. Therefore, we are obliged from the bottom our heart to our forefathers to serve the country and the Tsa-Wa-Sum with full dedication. Similarly, we also should be able to follow their example and pass on a stronger and better Bhutan to our future generations.

Even after His Majesty’s enthronement on the golden throne, our people have served with full dedication. The ministers, government officials, private sector personnel, lams and lopens of the dratshangs, gomchens, people’s representatives, gups, chimis, student boys and girls, teachers and armed personnel have served His Majesty and the country with full devotion. For these, I would like to thank all the people of 20 Dzongkhags.

Two years ago, when I was granted the title of Trongsa Penlop by His Majesty and during the ceremony, I had only one thought in my mind. In the history of Bhutan, every Trongsa Penlop has gone on to serve his nation and people selflessly in immeasurable ways. So, when His Majesty commanded me to this title, I had a different feeling. I asked myself how I would be able to serve my country and the people during my tenure.  I wondered whether I would be able to serve like my predecessors. Even now, I have the same thoughts. However, I aspire to serve my country, the government and the people, the Tsa-Wa-Sum with full commitment within my capability and capacity. 

Lastly, whatever we have done and whatever His Majesty has accomplished in about 33 years are all for the benefit of our younger and future generations. That is why our younger generations, who are in schools, have to keep in mind that His Majesty has bestowed with full faith and trust the opportunities to our younger generation, so that during your time, you will have further peace and happiness with greater economic prosperity. For this, His Majesty has laid a strong foundation for the country. Therefore, our younger generation has to keep in mind what I have just said and should work hard and strive further without wasting opportunities provided to them.

In future, if I tell you how our country would be, it all depends upon our young boys and girls. If our boys and girls think sanguinely and if they are capable then, our future country would become a good country to live in. If our younger generation has no capacity to shoulder the duties or they have no good education or are not dedicated to the interest of the country, then an ineffectual government will be formed with incompetent officials. If this occurs, it would show that we and our young boys and girls have failed in our duties. 

The present school going students are our future ministers, members of the opposition party, members of the ruling party, Constitutional post holders, government officials, representatives of the people, gups, chimis, business, body guard, army & police personnel. Therefore, whatever has been done till date are for our future generations, all our young people have to take the responsibilities with full commitment and serve the country with their utmost dedication and further strengthen our country.

With our Constitution and with all the new political process in place, I believe that the sovereignty and the security of our country will be strengthened, we would be able to achieve good governance and the people of Bhutan will achieve greater prosperity. My prayers have always been for the betterment of our country. Long live His Majesty the Fourth King of Bhutan. “Palden Drukpa Gaylo.”

Essence of the Constitution

In accordance with the democratic theory of the people’s constitution-making power, the people are the epicenter, which articulate liberty, freedom, rights and duties for the people, and sovereignty and security of the Kingdom of Bhutan. The Constitution creates self-determination to live her life in the manner that she thought best with the power of the state to implement laws, rules and regulations so that the country can realize the goals and visions and the entrenched constitutional values. The values, tradition and culture of Bhutan and other core constitutional values have formed the basis of our Constitution. Therefore, the Constitution must contribute to social and political stability and introduce changes without disrupting the ongoing operation of the system. It must allow governance or the government to pursue the goals for the nation that the Constitution identifies. The Constitution should have inbuilt insurance theory of constitutional regime.

A Constitution is an on-going process, which reinvents and metamorphoses in a progressive society with protection of liberty, freedom and rights. It should inspire our future generations, the ardent love for their country, an unquenchable thirst for liberty, and greater reverence for the Constitution. It has enshrined the rights of the people under a democratic system, which has been designed to perpetuate happiness, ensure security and guarantee liberty for all. It has been ordained by the will of the people, and can be changed only by the sovereign command of the people. Hence, the supreme power of the Constitution shall govern us all according to wise laws, protect us and defend the people, repulse common enemies and maintain us in everlasting accord. The freedom and liberty under the Constitution is the constituent of Gross National Happiness, and sovereignty of the people and Bhutan are absolute. Our Constitution embodies hope for survival and reassurance for our future. It is the document that exemplifies personal sacrifice of Their Majesties for the national vision of greater and general public interest. Collective dreams and common aspirations for a unifying vision expressed in this document will address the common misery and share anguish to assuage human suffering and lead Bhutan to glory. Therefore, adopting the Constitution, His Majesty said on 18th July 2008:

“Lastly, 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.”

Reiterating the submission made at the conclusion of the public discussions, on behalf of the Constitution Drafting Committee, I as the chairperson of the Drafting Committee would like to thank the People of Bhutan and all those who have made contributions intellectually or financially20 to the drafting of our precious document and submit as follows:

Blessed by the precept of Ugyen Guru Rimpoche and Zhabdrung Ngawang Namgyal;

The hereditary Kings of the Wangchuck Dynasty;

Having turned the wheels of both religion and politics;

The peace, happiness, fortune and education of the people of Bhutan have flourished.

The Fourth magnanimous Monarch;

Having initiated the drafting of the Constitution;

For the principle enshrining the doctrine of democracy;

The boundless vision of His Fourth Majesty and His Majesty cannot be neglected.

His Majesty Jigme

Khesar Namgyal Wangchuck;

Having accomplished his

works is auspicious;

And with prayers that the Dynasty will remain longer than the river;

The white scarf of full devotion and dedication is hereby submitted.

Footnotes

1 Jampel (Member from Bumthang), Palden Dorji (Member from Chukha), Dorji (Member from Dagana), Ugyen (Member from Gasa), Lhakpa (Member from Haa), Khamtula (Member from Lhuentse), Pema Dorji (Member from Mongar), Wangdi (Member from Paro), Guchu Wangdi (Member from Pema Gatshel), Namgyal Phuntsho (Member from Punakha), Dechen Wangchuk (Member from Samdrup Jongkhar), Chandra Bahadur Ghaley (Member from Samtse), Thakur Prasad Homagai (Member from Sarpang), Thinley Dorji (Member from Thimphu), Jangchub Dorji (Member from Trashigang), Lobzang Tshering (Member from Trashi Yangtse), Chophel (Member from Trongsa), Phurgye Drukpa (Member from Tsirang), Sigay Dorji (Member from Wangdue Phodrang) and Dechen Wangdi (Member from Zhemgang).

2 Venerable Drabi Lopen Kuenley Gyeltshen and Venerable Yangbi Lopen Chimmi.

3 Dasho Ugyen Dorji.

4 Dasho Rinzin Gyaltshen (Zhung Kalyon), Dasho Jamyang (Councilor from Chhukha), Dasho Chador Wangdi (Councilor from Trashigang), Dasho Gyeltshen (Councilor from Paro), Dasho Sonam Wangchuk (Councilor from Zhemgang), Dasho Adap Passang (Councilor from Wangdue Phodrang) and Dasho Leki Pem (Councilor from Dagana).

5 Lyonpo Sonam Tobgye, the Chief Justice, High Court, Drangpon Lungten Dubgyur (Phuentsholing Court), Pasang Wangmo, (Registrar,Wangdiphodrang Court).

6 Dasho Meghraj Gurung (Managing Director, Bhutan Posts), Dasho Tashi Phuntsog (Secretary, National Assembly), Lopen Lungten Gyatso (Principal, Institute of Language and Cultural Studies, Semtokha), Dasho Karma Ura  (Director, Centre for Bhutan Studies),  Dr. Dechen Tsering, (Head, Policy Coordination Division, National Environment Commission), Dasho Kuenlay Tshering (Director, Office of Legal Affairs, as the Member Secretary to the Constitution Drafting Committee).

7 Lyonpo Sonam Tobgye.

8 Discussion during the meetings of the drafting Committee and the public consultations were all recorded. The records were transcribed by Sonam Penjore and Tshering Tobgay, the bench clerks of the High Court. It was then translated into English by Drangpon Rinchen Penjor, Drangpon Karma Gyamtsho, Drangpon Tshering Dorji, Drangpon Kinley Namgay, Drangpon Rabjam Chador Phuntsho, Drangpon Rabjam Norbu, Gembo Tashi, Pelden Wangmo, Rinchen Dema, Tandin Dorji, Kinley Dorji, Lhindup Zangpo, Deki Yangzom, Yeshay Dorji, Sonam Yangchen, Phub Dorji, Ugyen Penjor, and Karma Choden.

9 Lyonpo Sonam Tobgye, Dasho Kuenlay Tshering, Lungten Dubgyur, Kinley Namgay and Gembo Tashi. The meetings were held in New Delhi, Goa and Thimphu.

10 Dasho Tashi Phuntsog and Drangpon Rabjam Rinzin Wangdi worked hard in Dzongkha. In addition, Rinzin Wangdi conducted research in the Buddhist literature and he worked most diligently without any financial gain and publicity. The Committee had compiled a glossary of the words for future reference. Dorji Bhida has been assisting in the compilations and corrections.

11 The compilation of the compared provisions of the different Constitution was done by Drangpon Rabjam Tashi Chhozom.

12 Drangpon Lungten Dubgyur, Drangpon Rabjam Kinley Namgay, Gembo Tashi, Pelden Wangmo and Ugyen Tshering.

13 The process of correction was participatory. Drafts and corrections of Their Majesties were conveyed to me with reasons. However, I was unable to record all their profound thoughts as I was not fast enough to note down everything. I was commanded to study the draft and corrections and submit my submissions either agreeing or respectfully disagreeing. It was the most humbling and exciting opportunity contrary to my earlier apprehension. General Vestop Namgyel, Military Secretary to His Majesty was helpful to me while conveying the corrections and the comments. His stupendous service without public acclaim and recognition are extraordinary.

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