The latest step in a slow but steady transition to democracy is how the unveiling of Bhutan’s draft Constitution in early 2005 has been described. Juxtaposed against King Gyanendra’s democracy-reversing coup in Nepal, the move by King Jigme Singye Wangchuk of Bhutan appears almost statesman-like, a benevolent monarch’s gift to his people, who had apparently not even requested the bounty in the first place. 

What the people of Bhutan make of the draft Constitution [www.constitution.bt] is not known. However, a recent radio interview of the Chief Justice of Bhutan indicated that the king expects the people to go along with whatever he decrees. “Initially there were oppositions [sic] from the people [to the idea of a written constitution] because over the last hundred years, almost hundred years, the monarchy had provided stability, economic development, security, tranquillity to the nation,” the Chief Justice said. “However, with the persuasion over last three years, [sic] his Majesty has convinced the people that having a constitution is most imperative for the greater [sic] and the glorious Bhutan.” 

Whether the promised consultations with the people will actually take place and whether the people will be able to freely present their views on the draft constitution remains to be seen. At this point, however, a number of gaps in the draft are already evident. 

To begin with, the representative nature of the Drafting Committee is suspect as no member from the Nepali-speaking Lhotshampa community features in the Committee. The ramifications of this omission are evident from the perusal of Article 6 that outlines the criterion for acquiring citizenship through naturalization and Article 7 that outlines the fundamental rights of citizens and persons. Both the aforementioned Articles disregard the rights and concerns of the Lhotshampa community. 

Powers of the king 

Under Article 2(1) of the draft constitution the king has been declared to be Head of the State. Significant appointments based on recommendations or consultations are to be made by the king – such as the appointment of the Chief Justice and other judges, the Election Commission, the Council of Ministers, Anti-Corruption Commission, the Royal Service Commission, the Attorney General, the Auditor General and others. Such a process will curtail the independence and autonomous functioning of the authorities. 

Further, the privileges extended to the king entail absolute legal immunity for his actions and his person. This reinforces the retrograde, tyrannical and outmoded notion of the king being above the law, and is clearly detrimental to the rule of law, which is a central tenet in any democracy. 

The absolute nature of the powers and immunities of the king can also be gauged from Article 2(26), which forecloses the possibility of any amendment to Article 2. 

Religion and politics 

Article 3(3) clearly states that religion and politics must remain separate. On the other hand, Article 3(7) states that the Central Monastic Body “shall continue to receive adequate funds and other facilities from the State”. 

As the Druk National Congress (DNC), a group of Bhutanese exiles based in India and Nepal, rightly points out, all religious institutions should be registered as trusts and enjoy autonomy in their functioning. It has further urged that there be no interference or involvement in their appointment process by the king or the government. 

Citizenship 

Article 6 of the draft constitution essentially reiterates the provisions contained in the Bhutan Citizenship Act of 1985, which provides for citizenship - by birth; by registration and by naturalization. Article 6(2) of the constitution which is similar to Section 3 of the Citizenship Act, provides for citizenship by registration which states: “A person, domiciled in Bhutan on or before the Thirty-First of December Nineteen Hundred and Fifty Eight and whose name is registered in the official record of the Government of Bhutan shall be a citizen of Bhutan by registration.” 

The UN Working Group on Arbitrary Detention in its Report prepared after its visit to Bhutan in 1994 observed that the Citizenship Act was formulated with the intention of excluding “all Nepalese who allegedly illegally entered Bhutan in the early 1960s” whom the Government of Bhutan claims are economic migrants and therefore unwelcome. Rakesh Chhetri, a Bhutanese political analyst, highlights the absurdity of the clause, pointing out that that the “Council of Ministers including the Ministry of Home responsible for maintaining the census register was itself created in 1968 and the enumeration in the census record was started only in 1972” thereby making it impossible for a person to show that his name was registered in the census as on 31 December 1958. The draft constitution reinforces the intention of the Government to deny citizenship to the Lhotshampas. 

Article 6(3) provides for citizenship by naturalization and stipulates, among other things, that the person seeking citizenship should be able to speak and write the national language. This reflects disregard for the distinct language, culture and norms of minority communities within Bhutan and their right to preserve their distinct identity. The predicament of Bhutanese refugees in Nepal is precarious given the existing provisions of the citizenship law and the draft constitution. 

Fundamental Rights 

Article 7 of the Draft Constitution outlines 20 fundamental rights of which only six rights are available to all persons while “citizens” are entitled to the exercise of majority of the rights. Social and economic rights have been incorporated in the form of ‘Principles of State policy’ [Article 9], which the State must endeavour to realise. 

Under Article 7(20) the State has the power to impose reasonable restrictions on the exercise of rights contained under Article 7 when it concerns: “interests of sovereignty, security, unity and integrity; interests of peace, stability and well being of the nation; interests of friendly relations with foreign states; incitement to an offence; disclosure of information received in regard to the affairs of the State or in discharge of official duties or the rights and freedoms of others.” Further, during a proclaimed emergency the following rights are to be suspended: the right to freedom of speech, opinion and expression; freedom of press; right to information; right to freedom of peaceful assembly and freedom of association; and the right not to be subjected to arbitrary or unlawful interference with one’s privacy nor unlawful attacks on one’s honour and reputation. 

Considering the wide range of concerns under Article 7(20) on the basis of which, rights can be curtailed, the incorporation of fundamental rights is merely ornamental as the State can constitutionally abridge the rights guaranteed. 

It is necessary to consider the context in which the rights will operate. The Bhutanese government has in the past imposed its customs and traditions on the Nepali speaking population within the country. The Bhutanese government has been aggressively promoting the policy of ‘One Nation, One People’ as a part of which in 1989 a royal decree was issued by the king called Driglam Namzha which prescribes the manner in which one must eat, sit, speak and dress and bow down before authorities. Non-observance of the Code entails penalties in the form of fines and imprisonment. The Code essentially sought to obliterate the customs of the Lhotshampa community and to dictate the cultural aspects of their lives. This form of coerced nationalism also infringes the rights of individuals to make their own choices. 

A glaring omission in Article 7 of the draft constitution is the internationally acknowledged guarantee of the rights of minority communities to follow their own customs and mores, to develop their own culture and language, to establish and maintain their own schools and training institutes and inter alia the right not to be discriminated against. Ethnic Nepalese in Bhutan continue to be harassed and subjected to intimidation. 

Judiciary 

Under the draft constitution a significant role has been etched for the Supreme Court – it should be the guardian of the constitution and the final authority on its interpretation. The judiciary is expected to “safeguard, uphold and administer justice fairly and independently without fear, favour, or undue delay in accordance with the rule of law to inspire trust and confidence and to enhance access to justice.” 

Under Article 2(19) the king has been vested with power to construct the entire judiciary by having the final say in all judicial appointments. The constitutional imperative of independent functioning of the judiciary is vitiated by the fact that the king makes significant appointments in this regard. 

In exercise of its constitutional function, the judiciary would be the appropriate body to determine the “willful violations of the Constitution” by the king. However, owing to the privilege enjoyed by the king, he will clearly be absolved of all liabilities. 

Conclusion 

The structures essential for the working of the constitution are entirely under the control of the monarch thereby muting dissenting voices, debilitating institutional checks and balances and robbing democracy of its spirit. Despite the existence of a written constitution, the king will continue to reign supreme and will seek to remain above the law of the land. The draft constitution displays a mere semblance of regard for democratic principles, while safeguarding the authority of the king.

 Human Rights Features