For a country emerging from protectorate status during colonial times, and struggling to emerge from under the shadow of India in the modern era, what Bhutan had lacked was a constitution that set its polity under the rule of law, rather than the benevolence of its ruler. While the current Druk gyalpo, King Jigme Singye Wangchuk, is widely acknowledged as a modernizing force, the lack of codification of the very institution of state has always made Bhutan vulnerable to the vagaries of internal and external evolution.
The release of a draft constitution on 26 March 2005 therefore marks an important political milestone. The document, prepared by a 39-member committee over the past three years, is to be discussed in the Tshongdu (National Assembly), in local bodies, and among common citizens, before being put up for approval in a referendum. The concise constitution envisages a “democratic constitutional monarchy” in Bhutan. Declaring Bhutan to be a sovereign kingdom with sovereign power vested in the people, the draft delineates the role of monarchy, stipulates fundamental rights and duties, provides for a two-party parliamentary system and outlines provisions concerning citizenship.
The constitution has been drafted at the initiative of King Jigme, who has emphasised that with the country enjoying peace, stability and security, this this was the best time for transition to a democracy. The constitutional initiative also comes at a time when forces of modernisation are making swift inroads in Bhutanese society. While the draft constitution seeks to establish a liberal political order in Bhutan, there is scepticism about provisions that do not conform to democratic norms. Furthermore, the manner in which the constitution will be implemented under Bhutanese social conditions, as well as how it will be interpreted and upheld by the Supreme Court, are matters of concern.
Towards a new polity
Some commentators see the constitution as the logical culmination of the process of devolution of power underway in Bhutan, initiated with the formation of the dzongkhag (district) development committees and the gewog (village) development committees and with the transfer of decision-making powers for five-year development plans to the local level. Officially, the king transferred his executive powers to the Cabinet in 1998. “There is a genuine wish to increase the levels of political participation among the more progressive quarters of the elite,” says Michael Hutt, a Bhutan scholar and Professor of Nepali and Himalayan studies at the School of Oriental and African Studies in London.
The constitution may also be intended to pre-empt external pressure and anticipate internal demands of change. Says Hutt, “Bhutan wants to show the international community that it is not averse to democratic processes. There is also fear of unleashing forces that will undermine the political elite and loosen its grip on power.” These forces include education, travel and awareness of the outside world, and the arrival of various forms of media like cable television and the internet over which the government can exercise little or no control. “Bhutanese people now have a glimpse of alternative ways of life and even political systems, which makes a steady move towards participative democracy essential for long-term stability,” asserts Richard Whitecross, another Bhutan scholar and an anthropologist at the University of Edinburgh.
There has been an increase in the level of unemployed and under-employed young, educated Bhutanese whose ambitions are frustrated by the slow development of the private sector and the lack of positions in the government. The constitution, with the space it provides for political representation, could be designed as a safety valve to prevent such youth from becoming overly disaffected.
Not least, the need for a constitution must have become urgent after the worldwide notoriety the ‘Shangri-La kingdom’ received fifteen years ago and continuously since for having evicted a hundred thousand Lhotshampa (‘southerner’) Nepali-speaking citizens. These refugees, whose ranks have now swelled to 120,000, continue to live in refugee camps in eastern Nepal, and their leaders argue that the principal motivation for the constitutional exercise is to complicate the repatriation of refugees and deprive them of citizenship rights. Rakesh Chhetri, a Bhutanese refugee and Kathmandu-based analyst, says, “The draft is solely aimed at maintaining status quo.” Praveen Kumar, a researcher at New Delhi’s Institute of Defence Studies and Analysis (IDSA), for his part, believes that with the draft constitution, King Jigme is trying to pre-empt the impact of a radicalized refugee element, influenced by the Maoist rebels of Nepal.
A ‘constitutional’ monarchy
Article 2 of the draft constitution declares the king to be “the Head of State and the symbol of unity of the kingdom and people of Bhutan”. The throne is to pass by hereditary succession either to the crown prince or to the crown princess, though the son takes precedence over the daughter. Allowing the princess to inherit the throne is a welcome departure from the traditional patriarchal orientation of the institution of monarchy, a feature that goes beyond merely Bhutan. A unique provision sets 65 as the retirement age for the monarch.
In provisions made even more significant by recent developments in neighbouring Nepal, the draft stipulates that the king shall proclaim an emergency only on the written advice of the prime minister. Additional safeguards require that the proclamation be submitted to parliament for approval and that the constitution not be amended during the period of emergency. The draft also provides for the “abdication” of the king for reasons of willful violation of the constitution or for being subject to permanent mental disability. Such a move requires three-fourths of all members of parliament to support a resolution, which then has to be approved by a simple majority in a country-wide referendum. This provision, however, is not new and was first enacted by the third gyalpo, Jigme Dorji Wangchuk, in 1969.
While the principle that Bhutanese people would be the ultimate arbiters of a monarch’s fate has been welcomed, even initiating the process of abdication is expected to be almost impossible as citizens are prohibited from speaking against the king. Teknath Rizal, the well-known refugee leader and one-time Amnesty International prisoner of conscience, dismisses the provision as meaningless. “Remember that parties in the National Assembly would be run by close confidantes of the king and that as per the new constitution as well as existing law, people have to pledge allegiance to tsa-wa-sum, the king, country and people.” The policy of tsa-wa-sum has earlier been used by the ruling elite of Bhutan as a rallying cry to raise nationalist sentiments and suppress dissenting voices, particularly among the Lhotshampa.
There are clauses that leave space for an assertive monarchy. Article 2 declares the king to be the upholder of Chhoe-sid, i.e. religion and politics. The king is to “protect and uphold the constitution in the best interests and welfare of the people” – this is the kind of wording that is currently being interpreted in its widest possible meaning by King Gyanendra of Nepal. The Druk gyalpo is not answerable in a court of law for his actions. While most officials are to be appointed by the monarch “on the recommendation” of a specified constitutional body, the king gets to appoint the Chief Justice of the Supreme Court, who has been given a wide range of powers, “in consultation” with the National Judicial Commission. When these provisions are coupled with the fact that the king would remain the Supreme Commander in Chief of the Armed Forces and the militia, doubts creep in about whether an elected government could wield ultimate control.
Additionally, Article 20 of the draft constitution requires the executive to be responsible to the legislature as well as to the gyalpo. While some argue that an elected government has to be answerable only to the people and not to the king, others believe that this clause may not be undemocratic. “The role of the King, as the representative of the kingdom and part of the state has to be acknowledged. If this clause is read in conjunction with the fact that sovereign power is vested in the people, it does not necessarily go against the principles of a democracy,” says Whitecross.
The role played by the monarch in the new constitutional order would perhaps depend not so much on the letter of the constitution as on the way its implementation evolves in practice. The functioning of the Supreme Court and the National Assembly and the manner in which Bhutanese people adapt to the new system will determine whether the monarch works within constitutional parameters. As one analyst noted, “If people accept the constitution as yet another reform introduced but neither understood nor wanted, then a monarch could potentially reassert him/ herself.”
The draft constitution envisages a two-party parliamentary democracy with separation of powers between the legislature, executive and judiciary and a set of fundamental rights guaranteed to citizens. The Parliament, as per Article 10 of the draft document, is to consist of the king, the National Assembly and the National Council. The prime minister is to be a natural-born citizen.
Article 15 stipulates that a party with membership based on region, sex, language, religion or social origin would not be recognised. While all registered parties are allowed to contest a primary round of elections, the two parties that garner the highest number of votes would then be eligible to participate in general elections for the National Assembly. The leader of the winning party is to be appointed prime minister by the king, with no person allowed to hold the office for more than two terms. A system of public campaign financing is also envisaged where payment would be made out of a Public Election Fund to registered parties by the Election Commission in a “non-discriminatory manner”.
While the introduction of a democratic system that provides for regular elections has been widely welcomed, specific features of the proposal have come under criticism. Political activists allege that allowing only two parties in a diverse, multi-ethnic country such as Bhutan could be a way to suppress popular aspirations. The minority voice, left out of the political process after the preliminary polls, would not have any platform to express itself, potentially leading to discontent.
It is expected that the existing political parties, which have been voicing dissent and operating in exile, would be excluded from elections because of their largely ‘ethnic’ membership. While advocates of the draft document claim that such parties sow communal discord and obstruct national integration, the clause is seen as a move to keep the Lhotshampa from asserting their rights. Political scientists have argued that parties based on “ethnicity, regionalism and language” in fact provide a nonviolent democratic outlet to groups which have been discriminated against on these very grounds. Says one scholar, “If these restrictions are put in place, what will parties talk about, disagree on or fight about?”
Would the constitution, with its scheme of electoral democracy, overhaul Bhutanese politics? Michael Hutt is sceptical. “The constitution would probably produce a government where Drukpa traditionalists and Drukpa modernisers face each other, with the modernisers forming the government and the traditionalists the opposition.” This would not be too different from the current set-up where an “ostensibly progressive” king and council of ministers have the largely conservative Tshongdu to argue with. However, while there might not be a radical change immediately, credit must be given to King
Jigme and his advisors for having taken the risk with an initiative that is open-ended in terms of which way the polity evolves.
Arguing that democracy should be seen as an evolving process that takes into account local considerations, Praveen Kumar of IDSA says, “It is too early to expect the draft to conform to the parameters of modern democracies. Implantation of external values in alien societies without testing their applicability to the local population will not help in the long run. This explains the continued existence of traditional authority in the proposed political set-up in Bhutan.”
It was the citizenship act of 1985 that triggered the forced eviction of the Lhotshampa from southern Bhutan. The act allowed citizenship by registration only to those individuals, and their descendants, who were permanently domiciled in Bhutan on or before 31 December 1958, and whose name was registered in the census documents. Rules for naturalised citizenship required applicants to be able to, among other things, speak, read, and write in Dzongkha as well as to have a good knowledge of the culture, customs, traditions and history of Bhutan. The act, coupled with the increasingly exclusionary policies of the government, led to protests that precipitated a harsh and repressive crackdown by the royal regime, culminating in the Lhotshampa exodus, which took place mostly between 1989 and 1992.
Article 6 of the proposed constitution largely reiterates the provisions of the 1985 act and is expected to provide little relief for refugees in the camps in eastern Nepal. While citizenship by registration continues to require domicile in Bhutan before December 1958, naturalised citizenship is possible if a person has resided in Bhutan for fifteen years; has no criminal record; has not spoken against the king, country and people; can speak and write Dzongkha; and is familiar with Bhutan’s culture and traditions. A visibly angry Chhetri says, “It would be impossible to return home. The government refuses to recognise us as citizens by birth. The registration process imposes the almost impossible task of producing documentary evidence of our presence in Bhutan in 1958 and the conditions required for naturalised citizenship are designed to exclude us.”
Me census held recently in Bhutan does not include the names of refugees. With the possibility of elections once the constitution is adopted, their names will be left out of electoral rolls as well, putting a further question mark on their citizenship. “It is a strategy to abandon us by excluding our names from all official rolls,” says Chhetri. The provision debarring a person who is under foreign protection and is married to a non-Bhutanese from holding constitutional offices could also be used against the Lhotshampa community.
Similarly, the right to own property, guaranteed as a fundamental right, could have serious implications for refugees. Article 7 states that a person shall not be deprived of property by acquisition or requisition, except for public purposes and in accordance with law. Additionally, Clause 9 of the same article prohibits property owners from selling or transferring land to a person who is not a citizen of Bhutan. This is expected to lend constitutional sanction to the property rights of the northerners who have been granted large tracts of land in southern Bhutan, often originally the property of Lhotshampa refugees. The right, some believe, reveals the intention of the royal government not to repatriate the refugees at all and possibly grant alternative, inferior land to those who do manage to return. The process of reallocation of land at present is seen as a move aimed at preventing or diluting a sense of community among the southern Bhutanese, thus blocking them from emerging as a political force.
The unresolved issue of refugees is inextricably tied to the kind of society that is being envisioned for Bhutan – whether it will be an open, inclusive society where groups are allowed to preserve their cultural autonomy or whether the evolution will be towards an exclusive structure where the entire population is expected to conform to uniform standards, as encapsulated in the slogan ‘one nation, one people’ and the tsa-wa-sum formula. It is likely that the proposed constitution will do little to encourage respect for diversity or to reassure the minorities in Bhutan.
Activists like Chhetri are up in arms against the declaration of Dzongkha as the national language, terming this as an instance of ‘cultural imperialism. Mark Turin, an anthropologist based at the University of Cambridge who works on Himalayan languages and cultures, says,”It is regrettable that the constitution is silent on the many other languages spoken in the nation both as a mother tongue or lingua franca, such as Sharchop and Nepali.” While Article 4 does require the state to “preserve, protect and promote” the linguistic heritage of the country, Turin believes that without an explicit statement on the value and official status of minority languages, it remains unclear how the promotion would play out in education and administration.
The declaration in the constitution of Buddhism as the “spiritual heritage” of the country has been seen as a clever formulation that protects the constitution from the charge of promoting a state theocracy. But what the provision does, in effect, is make Bhutan a ‘Buddhist nation’, though it would presumably incorporate all the sects that do operate within the society of northern Bhutan, from the Sarchop community of the east to the dominant Ngalongs of the west. Some analysts believe that by officially recognising a specific identity, the draft document privileges one group over others. A sympathetic analyst, however says, “Religion and politics have been intertwined in Bhutan since the 17th century and are so in the public imagination. The constitution draft cannot make a sudden departure from this heritage.”
Working a constitution
The proposed document, prepared by the drafting committee after studying the constitutions of almost 50 countries, is now out for wider public discussion. It will be adopted if approved by a simple majority of the people in a referendum, expected to be held later this year. Although there is doubt about the possibility of critical feedback in the absence of an independent intelligentsia in the capital Thimphu and elsewhere, and the complete absence of any kind of dissidence within the country, the proposed draft is nevertheless expected to undergo several changes during the process of ratification. Whitecross says, “The debate in the National Assembly will be a key part of the process as it will not only scrutinise the document but develop general public awareness about its meaning.”
The introduction of the constitutional draft has been welcomed across the board, with even refugee leaders like Chhetri appreciating the introduction of fundamental rights and a multi-party system in principle. However, it is the implementation of the provisions that remains a matter of speculation and, in some quarters, apprehension.
The low levels of literacy and political awareness in Bhutan, particularly among rural women, might pose obstacles in enforcing constitutional provisions uniformly across the country. The deeply hierarchical structure of Bhutanese society is also bound to limit criticism of the government as well as the willingness of people to develop political parties that oppose social superiors. A drive to educate people and to make them aware of the equal right to participate in political processes is considered essential if the constitution is to work in letter and in spirit. The manner in which an independent media develops in Bhutan and the role played by the Supreme Court will both be important in upholding constitutional provisions.
The formal ratification of the constitution could serve as a wedge in the door of Druk Yul’s transformation, or it could open the floodgates for sudden change in a society that appears calm on the surface. The potential of snowballing democratization made possible by the new• constitution cannot be ruled out. While there are restrictions and other underlying mechanisms of control present in the draft which would favour the ruling Ngalong-centric Thimphu establishment, the guarantee of fundamental rights and political representation to citizens is bound to provide hithertho excluded sections of society access to newer avenues.
While acknowledging the risk taken by the King Jigme and the establishment by bowing to the inevitable need for a written constitution enshrining the basic tenets of a modern nation-state, it must be said that the biggest drawback of the draft constitution in circulation is the way it wishes away the Lhotshampa community, and in particular the refugees who are Bhutanese citizens. Howsoever clairvoyant and forward-looking the document may otherwise be, its legitimacy at birth will be seriously compromised and the democratic beginnings of Bhutan will be considered flawed for having ignored a seventh of the country’s citizenry. Among some, there is still a hope that this grievous lacuna that permeates the draft document will be addressed in the consultation process that is underway in the hills and valleys of Druk Yul. After that, it is all in the implementation.