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Monday, 6 February 2017

OF LEGISLATION: WHO CAN MAKE LAWS?

Disclaimer: This article was published in the Third Legislative Journal of National Assembly of Bhutan. The Journal was launched officially on 5th Feb 2017 coinciding with the Birth Anniversary of Royal Prince (Gyalsey). 

1.      INTRODUCTION
Democracy is established based on Rule of Law. Rule of Law establishes the just and fair society. Law brings peace-coexistence among all humans in a civilized society. Without law, man would be worse than animals. In nutshell, every system of governance functions on the basis of law. Without law, world would be in chaos, uncivilized and one giant disorganized society. Law-making is process of shaping the nation, build nation, instil the values of democracy and uphold the rule of law. Parliament is the exclusive organ of the government responsible for enacting laws in the country. This article purposes to briefly explain what is Law? What is Rule of Law? And who can make laws?


2.      OF LAW
According to Austin[1], “Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject” or “body of principles recognized and applied by the State in the administration of justice[2]”. Thus, law is a set of rules recognized by the court for the administration of justice and made by the sovereign or the legislature. However, unlike Indian Constitution[3], Bhutan’s constitution does not define what is law or  what constitute law. Therefore, exact definition of law remains to be defined and force or level of enforceability of executive orders, notifications or circulars remains vague and undefined.

3.      RULE OF LAW
Rule of Law may be defined as “‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government” (Dicey, 2010). The Rule of Law requires that ‘legal rules be publicly known, consistently enforced, and even-handedly applied (O'Connor, 2003). The separation of powers is ‘essential in maintaining the Rule of Law in large part because it ensures decisions are made non-arbitrarily (O'Connor, 2003).

4.      OF DOCTRINE OF SEPARATION OF POWER
Rule of law sets structure of the democratic form of Government. Rule of Law establishes the Bhutanese democratic system. It follows the system of three arms of government under the Constitution. The Article 1(13) of Constitution of Kingdom of Bhutan provides the separation of power.
There shall be separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution”
 Therefore, Bhutan’s constitution explicitly separates the three arms of the government. Separation of power is a pillars of rule of law.  Separation of power means, the judiciary, executive and legislature should function independent of each other and no power should concentrate in one branch of the government[4]. It is based on the principle of “power corrupts and absolute power corrupts absolutely.  The Indian Supreme Court in case of Golaknath v. State of Punjab[5] (1967) stated that It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them (Yashmita, 2015).”
This principle has now been modified to suit the change and revolution of the world where states exists as welfare including Bhutan. For example, today, the law though made by legislature, it can be declared unconstitutional by the Supreme Court or High Court while the appointment of these judges and impeachment can be done by the Parliament and Ministers of the Executive are parliamentarians. Similarly, the Parliament exercising the oversight functions while Executive issues numerous laws in the form of rules, regulations, circulars, notifications, and judiciary through power of judicial review and principles of interpretation of statutes do make laws in absence of such re-dressal by the parliament.  
In case of Opposition v. Government (), the Supreme Court of Bhutan held that “… the Constitution has different centers of power under vertical, horizontal and intra checks and balance ensured through separation of power. ……
“Therefore, based on the principle of separation of powers enshrined under the Constitution, once the Court has taken cognizance of any matter, Parliament must comply with rules of procedure pertaining to abstaining from discussing matters that are sub-judice to respect the separation of power” (Dubgyur, 2015).

5.      OF LAW-MAKING BY PARLIAMENT
As the name suggest, parliament or legislature body is the primary organ of the government in enacting laws. The parliament is often considered to possess the absolute power to make laws.

a.       Doctrine of Parliamentary Sovereignty
According to the doctrine of parliamentary sovereignty, the legislative body is the supreme or sovereign to all other government institutions including any executive or judicial bodies (Essays, 2013) which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.  (Parliament, 2016).

This view no longer holds true for Bhutan. In Bhutan, the state derives its existence from the constitution and not otherwise.  Hence, it belongs to the nation which is subordinate to and controlled by the constitution (A.V.Dicey, 1998).  The Parliament of Bhutan has supremacy to the extent provided by the Constitution and specifically as provided under Article 10 of the Constitution. The Article 10(1) and (2) of the Constitution provides the extend of the authority of the parliament.
Article 10(1) “There shall be a Parliament for Bhutan in which all legislative powers under this Constitution are vested and which shall consist of the Druk Gyalpo, the National Council and the National Assembly”.
Article 10(2) Parliaments shall ensure that the Government safeguards the interests of the nation and fulfils the aspirations of the people through public review of policies and issues, Bills and other legislations, and scrutiny of State functions.

Therefore, from the above provisions, one can conclude that, the Parliament in Bhutan is not supreme to other institutions but is controlled by the Constitution including its powers, functions and establishment. Bhutan’s parliament follows the parliament of India, Australia or Canada as opposed to British Parliament since the Parliament is does not enjoy the supremacy under our Constitution.
However, in conclusion, the Parliament in Bhutan is also vested with the exclusive authority in making laws on any subject in the country within the Constitutional Framework under the Article 10(1) of the Constitution of the Kingdom of Bhutan.

6.      OF LAW-MAKING BY THE JUDICIARY
Judiciary can make laws through the exercise of the powers of judicial review. Judicial Review is the power exerted by the court of a country to examine the actions of the legislatures, executive and administrative arms of the government and to ensure that such actions conform to the provisions of the nation’s constitution. It is an instrument to legitimize the government’s action and to protect the constitution against any undue encroachment by the government (Mohita, 2016).
The concept of judicial review prominently came into existence in the case of Marbury v. Madison[6] (1803) by Justice Marshal where U.S Congressional Acts was tested its validity against the U.S Constitution. Justice Marshal in this case, followed the Hamilton’s Federalist Papers which state that it was an inevitable and logical implication of the judicial duty to apply and interpret the law. He further said that “Constitutional limitations upon the power of the legislature are meaningless unless such limitation upon the power of legislature are recognized as rendering void any legislative act repugnant to the. It is the province and duty of the courts to say what is law” (Kadish, 1959).  Similarly, in case of Fletcher v. Peck[7] (1810), the state law was tested against the U.S Constitution.
Exercise of doctrine of colourable legislation is one of the best methods used by courts to control the shifting of power by legislature in other arms of the government and make new laws. This principle is based on the legal maxim Quando aliquid prohibitur ex directo, prohibitur et per obliquum which means when anything is prohibited directly, it is also prohibited indirectly.  This is often called the fraud on the constitution. Similarly, courts uses various other principles including doctrine of ultra vires, severability, implied power etc in making their own law through the judgments or directives or declaration or writs.

 The Constitution of Kingdom of Bhutan like Indian Constitution does not provide expressed provisions on judicial review. However, the judiciary of Bhutan is provided with power of judicial review under the Article 1(10) & 1(11), Article 7 and Article 21(10) & (21(18) of the Constitution conferring the power to make laws by the judges.  
Article 21(10) explicitly or by way of entrenched provision provide for judicial review power. The Supreme Court has the prerogative of the court (Dubgyur, 2015):
a.      Article 1(10 of the Constitution empowers the court to declare any laws whether enacted before or after the enactment of the constitution including provisions of the international instruments to be null and void if it is inconsistent with the provisions of the constitution.
b.      Article 1(11) of the constitution declares and vest the exclusive power of interpretation and guardian of Constitution to the Supreme Court of Bhutan. This provisions empowers the Supreme Court validate any laws against the provisions of the constitution through the judicial review whereby Supreme Court may come up with new laws or amend the laws enacted by parliament by applying the various principles of interpretation of the statute.
c.       Article 7(22) obligates the Supreme Court and High Courts to protect the fundamental rights of the individuals. Thus, both Supreme Court and High Court are conferred with exclusive rights and empowers them to test the validity of any laws enacted by the parliament or administrative laws against the fundamental rights guaranteed under the Article 7 of the Constitution. This is also a law making procedure where Supreme Courts will define what is law and make laws through various legal principles.
d.     Article 21(10) of the Constitution provide a wide area to the Supreme Court and High Court to issue declarations, orders, directives or writs based on each circumstances of the each case. This Article is considered the most explicit  provision on the judicial review.
“Where a question of law or fact is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, the Druk Gyalpo may refer the question to the Supreme Court for its consideration, which shall bear the reference and submit its opinion to Him”
The Article 21 Section 10 in invoked in most recent case where issuance of Writ of Mandamus by the Supreme Court on Election Laws. The Supreme Court not only declared Section … of Election Act and LG as null and void but also came with new definition of what constitutes the Thromde Tshogde thereby making a new law.
Similarly, in the case of Opposition v. Government, the Supreme Court held that tax is tax  where Article 14 Section 1 of the Constitution , “taxes, fees and other forms of levies leaves no room for doubt  and does not require further interpretation. It must be de legelata and not de legeferenda and therefore, under Section 172 (fees and charges) of the Public Finance Act 2007, all other fees and levies generally charged to the public can be imposed or altered only by Parliament.   


Therefore, in short, judiciary is vested with judicial review to make laws. Judicial review is one of the basic features of the constitution and cannot be administrative judicial or quasi-judicial authority which has trappings of the court (Gandhi, 2012).

7.      OF LAW-MAKING BY THE EXECUTIVE
The general principle in making laws is that parliament (legislative body) is only the organ of the government exclusively vested with power to make laws. Thus, under the principle of Delegatus non potest delegare ( a delegate cannot further delegate). By this principle, since the Constitution has delegated the power to parliament, the parliament cannot further delegate this power of legislation to other bodies.
However, it is practically impossible for the parliament to  make laws for all matter since the functions of the government has increased enormously and also the matters have become complex. Further, parliament is not equipped with all technical aspects and does not have adequate time to enact all laws. Therefore, parliament first enacts the Act often called the parent act and delegate limited power to the executive to make sub-legislations most widely known in Bhutan as rules and regulations or sub-ordinate laws. Other such laws include executive orders, circulars, notifications most often issued by the cabinet and other executive bodies.
In Bhutan, the Article 20(2) of the Constitution vest the Executive Power to Lhengye Zhungtshog (Council of Ministers/Cabinet). The main function and power given to executive by the Constitution is look after the welfare of the people, plan, coordinate, implement policies for the development in the country. However, Article 20(8) exclusively vest the Bhutan’s Executive Body to “issue orders, circulars, rules or notification except in cases where such by-laws have effect of modifying, varying or superseding any provisions of a law made by the parliament or law in force[8]” .
The law making power of the executive is limited only within the delegated power by the parliament or the constitutional limits and does not extend like legislature or judicial review.
Few examples of law made as delegated legislation by the executive are Election Rules and Regulations, Civil Service Rules, Labour Rules, Envir ``         onmental Rules.  

Therefore, “an executive body can make sub-ordinate legislation only if such power is conferred on it by a competent legislature, not otherwise. Again sub-ordinate law making body is bound by the terms of its delegated or derivative authority” (Takwani, 2012)

8.      CONCLUSION
Therefore, law-making is not only the exclusive domain of parliament as provided by the doctrine of separation of power instead with the modern development and reform in the democracy, all three organs of the government have powers though varyingly, to make laws. “The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom[9]”.
 

Works Cited

A.V.Dicey. (1998). An Introduction to the Study of Law of Constitution. Delhi: Universal Law Publishing Co. PVT. LTD.
Dicey, A. V. (2010). Introduction to the Study of Law of Constitution. Gazelle Book Services Publication.
Dubgyur, L. (2015). The Wheel of Laws. Thimphu.
Essays, U. (2013, November ). Parliament Supremacy . Retrieved October 28, 2016, from Law Teacher: http://www.lawteacher.net/free-law-essays/constitutional-law/parliament-supremacy.php?cref=1
Gandhi, B. (2012). Interpretation of Statutes (2nd ed.). Delhi: Eastern Book Company.
Kadish, S. H. (1959). Judicial Review in the High Court and US Supreme Court. Berkley: Berkley Law Scholarship Repository.
Mohita, N. (2016). Your Article Library . Retrieved October 30, 2016, from Your Article Library : www.yourarticlelibrary.com/essay/judicial-review-in-india-concept-provisions-amendments-and-other-details/24911/
O'Connor, S. D. (2003). The Role of the Judiciary. Vidicating the Rule of Law.
Parliament, U. (2016, October ). Parliamentary Sovereignty . Retrieved October 28, 2016, from Parliament of UK: https://www.parliament.uk/about/how/role/sovereignty/
Takwani, C. (2012). Lectures on Administrative Law (5th ed.). Delhi, India: Eastern Book Company.
Yashmita. (2015, April 30). Separation of Powers: A Comparative Analysis of the Doctrine India, United States of America and England. Retrieved October 29, 2016, from Academeke: http://www.lawctopus.com/academike/separation-of-powers-a-comparative-analysis-of-the-doctrine-india-united-states-of-america-and-england/ 





[1] John Austin (1790-1859) was a noted British legal philosopher who introduced concept of legal positivism. This brought the meaning of what is law. This theory provided the necessary conditions for the existence of law that distinguishes law from other definitions.
[2] Salmond, Sir John William Salmond (1862-1924) was a legal scholar from New Zealand. His Jurisprudence or Theory of the Law is one of the most referred and cited  in the jurisprudence subject by legal scholars and law students across the world.
[3] Article 13(3) of Indian Constitution defines law as “law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas”
[4] The doctrine of separation of power often referred to be introduced by a  French Jurist Montesquieu in his Spirit of laws, and he said that this is to prevent from tyranny and preserve liberty. This view was further adopted in US by Justice Madison.
[5] [AIR 1967 SC 1643]
[6] (1803) I Cranch 137; 2 L.Ed. 60
[7]  (1810) 6 Cranch 87; 3 L. Ed. 162
[8] Article 20 Section 8 of the Constitution Kingdom of Bhutan 2008
[9] John Locke (1632-1704) was  an English Philosopher and physician and often described as father of liberalism. 

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