The Bhutan High Court dismissed on Friday the petition filed by the Druk Nyamrup Tshogpa (DNT), Bhutan’s one of the opposition parties, against the Royal Government of Bhutan challenging the constitutional validity of giving fiscal incentives to the private sector.
Prime Minister Tshering Tobgay Peoples’ Democratic Party government had granted fiscal incentives to private sectors between 1 January 2016 and 7 May 2017 without the parliament’s approval and had forgone Nu 42.36 million as taxes.
The petition was dismissed on the ground that DNT lacked locus standi to file the suit.
The Office of Attorney General (OAG) has requested the court to dismiss DNT’s petition on the government’s fiscal incentives being unconstitutional because it not only lacked locus standi to file the suit, the matter was also sub-judice, and that procedures for granting fiscal incentives had been streamlined.
Attorney General Shera Lhendrup argued the matter was sub judice, since, the government had submitted a petition to the Druk Gyalpo i.e. the King of the Royal Kingdom of Bhutan on 16 August this year for consideration to invoke Article 21 (8) of the constitution to obtain opinion of the Supreme Court on the issues of fiscal incentives granted till May 2017, by both the present and previous governments.
The High Court, however, dismissed the contention of the AOG that matter was sub-judice. The court clarified that the government has no authority whatsoever to obtain the opinion of the Supreme Court and that only His Majesty The King can command for such as abstract judicial review.
The OAG contended that Section 18 of the Civil and Criminal Procedure Code, 2001 (“CCPC”) provides on the exclusive advisory jurisdiction of the Supreme Court on matters referred to it for its opinion. Hence, the original jurisdiction of the High Court stands in abeyance when the same subject matter is in pendency or under motion before the Supreme Court.
According to OAG, the petition remains sub judice. On DNT not having locus standi to file the impugned suit, OAG cited that Article 21(18) of the constitution vests in every person the right to approach courts in matters arising out of the Constitution of other laws. However, that right is subject to Article 7(23) of the constitution, which provides that “a person can approach a court of law subject to the procedure established by law.” Hence, for a person to have “legal standing” to file a petition, it must, “involve a concrete case or controversy.”
The OAG contented that under section 149 of CCPC, there must be a large number of individuals whose interests are closely related, and the petitioner not only has to represent the interest of those members but must also be aggrieved or be an injured member of that class of people.
According to OAG, there is a positive action targeted to lift certain tax burden from the general populace, which is diametrically opposed to the burden of tax imposition.
Commenting on the decision of dismissal of its petition by the High Court, DNT president Dr Tandi Dorji said that the Court’s ruling that DNT has no locus standi or legal standing as it is not directly harmed, affected or suffered an actual injury is unfortunate.
“The loss of revenue for the nation is a loss to all Bhutanese and has affected all of us,” said Dr Dorji. “I don’t want to charge the court, but we have been disheartened by this decision on locus standi.”
He lamented that Bhutan’s legal system lacked the concept of public interest litigation and noted that it as the basic reason for dismissal of their petition by the court.
The DNT, however, decided not to appeal on the dismissal of the constitutional case and requested the Opposition Leader urging them to take this case forward and bring it to its logical conclusion.
A press release issued by DNT on Saturday stated that the Opposition has stated that the provision of fiscal incentives in 2016 is a violation of the Constitution and it is, therefore, the responsibility of the Opposition now to decide whether to file a case to clarify the constitutionality of providing fiscal incentives.
The dismissal of the case is based entirely on the legal standing of DNT and whether, as a party outside the Parliament, can file for a constitutional writ.
It is pertinent to state that in the current 47 members National Assembly the DNT has no member.
Dr Dorji lamented that there would not be an Opposition Party if in future one party wins in all 47 constituencies.