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.
[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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