Who is a public servant in Bhutan, a political dilemma and drama

This article was published in Kuensel for Saturday Legal Column Series 
The question of whether public servant include corporate employees has made the headlines recently. Government is of the view that public servant does not include corporate employees. In the meanwhile, the opposition argues otherwise.

First, the confusion seems to be more than a political difference in absence of clear parliamentary law on Pay Commission. Three governments have come and pay and allowances have been revised in each government’s tenure. Pay Commission has been working without any statutory details except Article 30 (2) of the Constitution which merely mentions: “The Pay Commissions shall recommend to be government revisions in the structure of salary, allowances, benefits, and other emoluments of the Royal Civil Service, the Judiciary, the members of the parliament and local governments, the holders and members of the constitutional offices and all other public servants”.

This provision is inclusive and not exclusive, which means “all other public servants” is open to interpretation. Going by the draft Constitution, there is a mention of armed forces and Dratshang Lhentshog, which means the framers of the Constitution intended more than what is mentioned there.

The government went by the definition of third Pay Commission Report, which defined public servant as “a person who salary, allowances, benefits and other emoluments are drawn from the consolidated fund”.

Public Finance Act 2007 (Amendment, 2012) S. 190 (g) defines consolidated fund as “the principal account of the Government” and S. 107 of same Act states that consolidated fund actually means “all public money” ad S.190 (v) defines public money as “all money received by the Government and by budgetary bodies, including the proceeds of all loans raised, grants received money collected for specific purposes and retained in separate accounts by law, and any other money that the Minister of Finance determines as public money, but not money held in trust or custody on behalf of non-government parties, or money received by State Enterprises”.

Going by this definition, since corporate pay, taxes and other forms of royalties which would be actually from consolidated fund or public money, corporations does seem fit in the definition of public servants. But this provision is not conclusive as to whether corporations are within the meaning of public servants or not.

Thus, in absence of a definition in other relevant laws, the most appropriate law is the Anti-corruption Act 2011. S. 176 (kk): According to the Act, a public servant is a person “who is a member, an officer, an employee of a public agency, whether appointed or elected, whether permanent or temporary, whether paid or unpaid and includes a person, who is a civil servant within the meaning of the Civil Service Act or receiving salary, allowances, benefits, or emoluments from public funds”.

The keyword here is “public agency”.  The same law, under S. 176 (ff), defines public agency, which among others includes “a company or subsidiary company over which or in which any public agency has controlling power or interest”.

Going by this definition, a corporation, which is either fully or partially funded or controlled by the government, would become a public agency and the employees under them a public servant.

However, the fundamental problem in this definition is that it is used in the context of the public agency’s accountability and does not necessarily apply to Pay Commission directly.

Therefore, the most appropriate step is to enact a Pay Commission Act where the Parliament must define or at least set up criteria as to which agency constitutes public agency. Until such a law comes into existence, the dilemma and confusion of who is a public servant will remain an haunt us again.

The danger is that the parties will continue to use it as a political argument to meet their political needs.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.