'His Majesty wanted the word democratic'

Interview with Sonam Tobgye, the Chief Justice of Bhutan.

Sonam Tobgye was appointed Chief Justice of Bhutan by Jigme Singye Wangchuk, the Fourth King of Bhutan, in 1991. Born in 1949, Tobgye completed his primary education in Bhutan and joined Dr. Grahams Homes in Kalimpong, West Bengal, India, in 1964, and later the National Legal Course in the High Court, Bhutan. He was appointed the Solpon (Chamberlain) in 1974 and honoured with the Red Scarf, an honour similar to knighthood. In 1980 he was appointed Justice of the High Court. From 1986 to 1991, he served as both the Auditor General of Bhutan and the Secretary of the Royal Civil Service Commission. During the period, he drafted and adopted the Bhutan Civil Service Rules and Regulations of 1990 and Royal Audit Rules and Regulations. In 1998, the King awarded him the Orange Scarf, with the rank of the Minister. He was also presented a Medaille dHonneur in recognition of outstanding contribution for the cause of justice and as a gesture of goodwill to the judiciary of Bhutan by Louis Joinet, on behalf of the President of the Court de Cassation of France in 2001.

On November 2001, he became the Chairman of the Constitution Drafting Committee of Bhutan, and is widely considered as the architect of the modern Bhutanese Draft Constitution. In an extensive interview to Frontline, Sonam Tobgye discussed at length the various provisions of the Draft Constitution, the role of the soon-to-be operational Supreme Court of Bhutan, and the judiciary, as well as the functions of the monarch in the brand new parliamentary democracy of the country.

Bhutan is now in the midst of historical changes. From monarchy it is moving towards democracy. A Draft Constitution has been framed and a Supreme Court formed. What will be the changes in the judicial system in the new order of things?

First, Bhutan has always been proactive in its attitude and we were always ready to embrace change so that change does not overtake us. For the last 100 years under the five monarchs there have been many progressive steps in the country; so changes are not new to the Bhutanese people. However, the recent changes seemingly appear to be drastic. But over the last four to five years, His Majesty the Fourth King has nurtured this idea and created awareness among the people.

We already had judicial institutions ready in Bhutan. The separation of powers was in principle enshrined in the charter of 1652 by the first theocratic ruler. Based on that, successive rulers, particularly the monarchs, have been working very effectively and within the defined separation of powers. So that concept is not new; it is now only being re-strengthened.

Under the doctrine of separation of powers, the judiciary had a clearly defined role. We have been functioning strictly within that. In short, the judiciary was there to interpret the laws and not to make them. One of the most important principles of the judiciary is judicial review. It was not clearly mentioned in words, but the principle of judicial review was always with the judiciary. But since we did not have a Constitution, we did not have the writs, but we could always grant stay orders and intervene; the judicial review was there in our system for a very long time.

From a three-tier system, we now have a four-tier system, for the purpose of taking justice nearer to the people to cut down on delay and harassment. Wherever there was a large concentration of population, subdivisional courts were set up. This is the lowest in the strata of the judicial hierarchy. Secondly, we had courts in every district. In fact, with the creation of any new district, there would automatically be a district court. Appeals from the district court go to the High court. The district courts were there from 1961, and in 1968 the High Court was established. But decisions like reprieve and pardon lay with the king. On adoption of the Constitution, much of the power will go to the Supreme Court. If there is a change, it is a change in the mindset of the people that the king was always accessible for redress from the judgment of the court. Now the final appeal will lie only in the Supreme Court.

This imposes greater responsibility on the judges of the Supreme Court to step into the big shoes of His Majesty, on whom the people of Bhutan had lavished their trust for so long. They will have to discharge their responsibilities in an honourable and just way. That will be the change. Otherwise, there will not be too much of change through this Constitution.

We have also fixed the number of judges to nine in the High Court excluding the Chief Justice. In the Draft Constitution, we have specified that, so that the government and politicians cannot manipulate the judiciary. In the Supreme Court, there will be five judges.

How will the appointment of judges take place?

Three years ago, His Majesty the Fourth King, in his wisdom, issued a decree stating that the appointment of the judges, particularly to the High Court and the Supreme Court, will be done through the National Judicial Commission. This topic has been discussed at length in your [Indian] Parliament and media.

The Chief Justice will be the ex-officio chairman. He along with the seniormost judge of the Supreme Court will screen the appointees, their proven track record and their eligibility. There will also be representation of the other organs of the government. In the new scenario, one of the four members will be the Chairman of the Legislative Committee of the National Assembly, representing the legislature. Our draft proposes to appoint the Attorney General to represent the Prime Minister (that is, the Chief executive) in the Commission.

There are two methods of appointing judges to the Supreme Court; first, through promotion. Currently most of our lawyers are in government service. A candidate will be promoted from the post of a registrar to that of a district judge, to the High Court and Supreme Court. The reason: they will have enough exposure through experience in the judicial workings, and also they will have been trained in that line. This is when his track record will be looked into. We will be going through their judgments whether he has a liberal view, legal realism, and legal philosophy manifested in his judgment.

The other system is appointment of an eminent jurist. Even in India in the last few years no eminent jurist has been appointed to the Supreme Court, but there is a provision for that. We also want to keep that option. There is a provision of appointing a very renowned and senior advocate to the High Court; but to the Supreme Court, only an eminent jurist.

Do you see any changes in your role as Chief Justice of Bhutan?

A Chief Justice of any country must have the confidence of not only the people of the country, but also the legal professionals other judges, lawyers, and so on for his impartiality and professionalism. The Chief Justice of Bhutan must respond to the changing situations of time, not to aggravate the situation, but to address it, so that justice, truth and, to a great extent, good governance will prevail. This is the dream and vision of the Fourth King, this is the aspiration of our people, and this is our collective desire.

What will be the tenure of a Supreme Court Judge?

We had marathon debates on this, and looked into various systems in other countries and their experiences, so we could profit from their wisdom and also learn from their mistakes. We finally decided that for judges of the High Court, either 10 years of service or the age of 65, whichever comes earlier; and the same is the case with the Supreme Court. The reason for keeping the 10 years clause is very important. Sometimes, the appointment of a wrong judge must not continue for too long. There should be stability in the judiciary, but not one that continues endlessly.

How can a judge be removed?

There are two processes. For minor administrative lapses, the National Judicial Commission will look into it censuring and other things. But for an impeachable offence, by either a High Court judge or a Supreme Court judge, there will have to be impeachment proceedings in Parliament. For misconducts that dont warrant impeachment, a judge should not be exonerated completely, and administrative powers have been given to the National Judicial Commission

You are the chairman of the panel that drafted the new Constitution of Bhutan. Can you tell us some of the salient features of the Constitution?

First of all, I want to make one thing clear that though I was the chairman of the Drafting Committee, I did not single-handedly draft it. The 39 members of the Committee worked extremely hard to produce the first draft in 10 months. Mr. K.K. Venugopal [senior lawyer of the Supreme Court of India] helped us immensely. He worked almost a whole year with us.

As for the salient features of the Constitution, the first Article, the Doctrine of Sovereignty, in our case, specifies that it belongs to the people. Secondly, taking cognisance of the experiences of your country and other countries, judicial review is explicitly mentioned in our Constitution; the Supreme Courts of other countries did it through interpretation and through implied rights. The Doctrine of Separation of powers is mentioned in the First Article.

The second part of the Constitution specifies that the form of government is Democratic Constitutional Monarchy. There is no other country that says Democratic Constitutional Monarchy. Constitutional Monarchy is democratic per se. But we had used the word Democracy, because the principle of democracy could be later interpreted in various phases in the future history of our country. His Majesty wanted that word Democratic specifically and so we kept it there.

The most important feature under Article 2 is that conventionally, the King never dies, but in Bhutan the King will now have to abdicate at the age of 65. This was an unpopular provision that His Majesty himself inserted as he felt it was necessary.

The second unique feature of this Democratic Constitutional Monarchy is, that there can be a vote of confidence against the king for violation of the Constitution forcing him to abdicate. This goes against our popular concept that the King can do no wrong, but now it will change.

As Khruschev said, as a witness of the past, we must address the future. We felt this was the time to do the political engineering. So what we did is, and again, this is His Majestys vision, he felt, there should be a multi-party system at the primary level, and thereafter, the two parties getting the maximum votes will contest the general elections to the National Assembly. So we will have a stable government in Parliament, and also have a multi-party system at the primary level. The tyranny of two-party system will be avoided, and the perpetuation of certain rules will not continue. This is perhaps unique in our Constitution. Political party structure is probably not mentioned in any other Constitution.

The selection of the constitutional heads will be done by the Prime Minister, Speaker, the Opposition leader and the Chief Justice.

We have provision for an interim government, before every election; they will have no power to decide on policies, but will be there for day-to-day running.

In Articles 13 and 14, under the commerce policy, a salient feature is that the government will have a certain percentage for debt management. Another provision is that under local government, like your panchayat, they will get a certain percentage of the national revenue, besides other budgetary support. So political parties cannot twist and turn local governments.

Another unique feature of our Constitution is the Environment, it is in your Constitution also under Article 52, but that is under Directive Principles. But here in our Constitution, we have said 60 per cent of the country must have forest cover, and it is a Fundamental Duty to protect the forest cover, so we can appreciate the past, enjoy the present and bequeath what we have inherited to the future.

What about Fundamental Rights, and can they be enforceable in a Court of Law?

Without Fundamental Rights, there cannot be a Constitution, and we have very comprehensive provisions for Fundamental Rights; and we also have Fundamental Duties. But unlike the Indian Constitution, we do not have Directive Principles; we have State Policies instead.

The rights without being enforceable in a court of law are no rights at all. We dont want a paper tiger. For basic violation of a fundamental right one can move the High Court and the Supreme Court for redress, but not the lower Courts.

We have 21 fundamental rights, which also include freedom of religion and right to information. As one of the Justices said, religion is a personal matter and the state shall not get into it and there cannot be any coercion or inducement to conversion.

So what will be the role of the monarch?

His role will be as the Head of State, he will be the fountain of justice, the symbol of unity for the country, the protector of all the regions, like any constitutional powers. As in the case of the Indian Parliament, there are the two Houses and the President, similarly, here also we have the National Council, the National Assembly and His Majesty.

Can he stop the passage of a Bill in Parliament?

If a normal Bill is passed in the two houses of the Parliament, despite His Majestys reservation, that Bill is automatically passed. But if, particularly in the case of a Constitutional Bill, His Majesty considers it to be of national interest and of paramount importance, he cannot stop it; but he has the power to refer that to a referendum. In short, our Constitution has two principles of democracy the indirect democracy, that is through a representative government, in which any act which is not of great importance, even if his Majesty does not give his assent, will be passed like it had recently happened in India; but if it is of national importance, His Majesty can refer it to a referendum. If a government has an overriding majority in a Parliament, like there is in Bhutan now, we may need another safeguard.

How do the people of Bhutan view the Kings divestment of power?

The Kings of Bhutan were always proactive. His Majesty, the fourth King in particular felt that democracy was very important, so he introduced it stage by stage. He believed in action and reality. At the beginning, we never knew of his intentions because he never spoke in a loud voice, nor did he ever say anything in public proclamation. As soon as he ascended the throne in 1972, a young man of 16 years, he said, peoples participation is a very important thing, and will be a component in his administration. Without our even knowing it at that time, he was laying the first principles of democracy.

The second thing he did was decentralisation, this very important and very progressive; it makes people accountable and responsible. This was introduced in the late seventies and early eighties. He encouraged privatisation, and in 1981, he introduced the district development committee, giving districts power in the planning and decision-making processes. He then, pushed it to the country level, or the Block level as in India.

Then he decided that the time had come for devolution of his powers. He made the people select Ministers, which he would nominate; some were rejected too. He introduced adult franchise. On September 4, 2001, he came up with the idea that Bhutan would have a Constitution. Over the years he has built the infrastructure and the apparatus necessary for the establishment of democracy. At that time people didnt like it. Often new ideas are not accepted and people are always apprehensive about change, being more comfortable with a known situation than unknown promises; so we, including myself, did not want the monarch to be just a constitutional head. It was emotionally against us.

A hundred years ago, the people of Bhutan, through social contract, told His Majesty to please govern us. Today, after 100 years he says, I have done my duty, now I give back to you a much more prosperous stable, sovereign nation. It is true at first people did not accept it, but His Majesty thought it to be necessary. Dont trust one man, but trust the people; dont trust the person who is born, trust the person who is selected and elected through merit. He has been drilling this idea into us consistently with repetition. In the end, people were resigned to the inevitability of the situation. Finally he is the man we trusted, a man we love, and he can never betray us. We trust his judgement.

In the end, and this is something the Western press will not understand, the red button which the people pressed in the machine to vote, became associated with a precious jewel. Voting was associated with a precious jewel given by his majesty not to be misused and abused, but to justify his confidence in us.

I think we still find it difficult to come to terms with the whole situation, but as Lord Buddha said: O Ananda, do not weep, do not cry, from all that he loves man must part. How can it be that things have beginning and no end. Dont say that the teacher is not there. My teaching is your master.

We have His Majestys gift of the Constitution as a guide and his wisdom.