OAG V/S DNT – Clash of the Constitution’s Articles

The OAG- DNT legal battle is now a row over various Articles of the Constitution, making interpretation of the Supreme Law’s provision, very important for the case

l  Tashi Wangmo/Thimphu

 

The second hearing of the case between the government and the Druk Nyamrup Tshogpa (DNT), within the walls of the High Court in Thimphu on October 24, 2017, saw both parties alleging and defending each other, citing provisions of the Constitution. At the end of the proceedings, an intern from a local newspaper gasped. “Are all court cases like this, purely based on provisions of the Constitution? Or is this happening because it is a case revolving around transgression of the Constitution?”

While the Office of Attorney General (OGA), who is representing the government, embraced Article 21(8) of the constitution and submitted that the matter is subjudice, legal representatives of the DNT used the same provision and said that the OAG’s argument that the matter be deemed sub-judice is not only preposterous but gravely misleading. DNT submitted that the government has no such authority under any existing law and is a feeble attempt to misquote Article 21 (8) wherein it is the sole prerogative of the Druk  Gyalpo to refer to the Supreme Court. Article 21 (8) states: “Where a question of law or fact is of such 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 hear the reference and submit its opinion to Him.”

The government’s legal representative further mentioned that the supremacy of law under Sections 9, 10 and 11, Article 1 of the Constitution and the appellate chain of courts under Sections 2, 3 and 7, Article 21 of the Constitution are integral elements for the purpose of determining the pending petition for its dismissal.

Invoking Article 18 of the Constitution, the defendant (OAG) stated that after formation of Parliament, it is both the duty and prerogative of the Opposition in the house, to critique and scrutinize the laws and policies of the ruling government in developing, defending and presenting alternative measures. This, according to the defendant, robs the petitioner (DNT) of any locus standi to file the present suit. It was further elaborated that the petitioner cannot scheme to replicate or usurp functions of the opposition party as only the ruling and opposition parties enjoy the legitimacy of being charged with answerable duty to the people by the Constitution.  Supporting this, Articles 10 (2) and 11 (2) of the Constitution, were invoked.

The Petitioner’s representatives maintained that the legal standing can be derived from Article 21(18) which provides that every person has the right to approach courts with matters arising out of the Constitution. It was submitted that the alteration of tax by the present Government “unambiguously tantamount to blatant breach of Article 14(1) of our Constitution and it is undoubtedly within the ambit of the matter arising out of the Constitution. Hence, there is no question as to Locus Standi.”

DNT’s representative underscored that it is not only DNT and its members but the Nation as a whole, who has been aggrieved and injured by unconstitutionally waiving taxes (under the guise of fiscal incentives). “It has cost the national exchequer, millions of Ngultrum which otherwise would have been accumulated in our Consolidated Fund,” he said, adding that this money would have gone towards improving health, education, provision of water and other such public services.

Yet again the Constitution was cited, with the Petitioners’ representative, embracing Article 14 (6) and saying that by unconstitutionally waiving taxes, “the Government cannot ensure that the cost of recurrent expenditure is met from internal resources of the country as per Article 14(6) of the Constitution as tax is one of the most guaranteed internal resources of our nation.”

Augmenting their legal right, it was submitted that it is not only the fundamental duty and responsibility of DNT to respect and abide by the provisions of the Constitution but of every individual as enshrined under Article 8(11). “Hence, every person has been placed with the solemn and greater responsibility to protect the sacred Constitution when it is violated and as a registered political party, the question of legal entity cannot be questioned.”

Just as the intern, a senior journalist mentioned that apart from judging who is right or wrong, “the case becomes very interesting, as we can now see how justices interpret various provisions of the Constitution.”

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