HRDI News Nepal, Bhutan & Tibet

“Bhutan’s Proposed Constitution, Democracy and Refugees”

Accept Constitution as a Mile Stone

New Delhi, November 25:

R :Mr. Sudhindra Bhadoria, Mr. Satya Prakash Malaviya, Mr. Praful Bidwai, Professor Balraj Kumar at Conference on Bhutan

A conference on “Bhutan’s Proposed Constitution, Democracy and Refugees” was held on November 25, 2006, at India International Centre, New Delhi. It was jointly organized by Public Interest Legal Support and Research Centre, Indo-Bhutan Friendship Society and Druk National Congress, and dozens of leaders from India joined to extend their support to the Bhutanese democratic struggle. A ten minutes documentary, directed by Grady Walker, on Bhutanese refugees entitled “Eviction” was screened in afternoon to acquaint participants about refugee life in camps.

Welcoming the guests, President of Druk National Congress Rongthong Kunley Dorji urged distinguished speakers to comments on Draft Constitution, democracy and refugees issues (His speech is reproduced in this edition).

Majority of speakers agreed that Draft Constitution of Bhutan is insufficient and incompatible of achieving fully functional genuine democracy in Bhutan. However, the King has shed considerable power and Bhutanese must grasp this political process to bring out the democratic changes from within. Every Bhutanese democrat must accept Draft Constitution as a milestone and everyone be prepared for 2008, which is not far away. An unconditional dignified repatriation of Bhutanese refugees to their homestead is demanded and in resolving this crisis amicably emphasis is put on the involvement of Government of India.

Prominent Speakers in this conference included Mr. Satya Prakash Malaviya, Former Union Minister and IBFS President, Mr. Praful Bidwai, Senior Journalist, Dr. Anand Kumar, Professor, Jawaharlal Nehru University and vice-President Indo-Bhutan Friendship Society, Mr. Rongthong Kunley Dorji, President of Druk National Congress, Mr. Sudhindra Bhadoria, Mr. Ravi Nair, Executive Director, SAHRDC, Dr. Mahendra Lama, Professor, Jawaharlal Nehru University, Dr.Gopal Krishna Siwakoti, Prominent Nepalese human rights lawyer and President INHURED International, Dr. D. N. Dhakal, Author and General Secretary, Bhutan National Democratic Party. Mr. Bharia Acharya, High Court lawyer and (PILSARC), Dr. Arun Kumar Singh, scientist and human rights activist, Mr. Anand Swaroop Verma, Dr. Arvind Chaturvedi, Mr. Satya Paul, Secretary General South Asian Fraternity, Professor Balraj Kumar and Mr. S.S. Nehra, Supreme Court Lawyer. Mr. Suresh Pathak, Member of Parliament was also present at the conference.

Excerpts of some of the speakers are being reproduced below.

Praful Bidwai: Bhutan is attempting a transition to some form of Constitutional Government but in a very uncertain, shaky and unsatisfactory way. The residual powers continue to be vested with King, for instance, exclusive quality and privileges in respect to property, to determining citizenship and whole range of powers. It is simply incompatible with the notion of popular government or rule by majority of people.
He said that if Bhutan is to make what is a critical transition under the Constitution, then people of Bhutan should stop being subjects of King, which is a feudal concept and become citizens of Bhutan, which is a modern concept and central to the democracy. The situation in Nepal and elsewhere has shown the rise of democratic tidal waves whereas the King of Bhutan is going against the democratic trend. The reform initiatives, in this context are far too little, come far too late, and appear completely calculating to hoodwink the world.

Due to Bhutan’s seemingly projection as an environment friendly and surreal tourist destination has invited no external pressure from Western countries to do justice. He regrets that even Government of India is silent owing to its parochial outlook in protection of national interest. He feels that neighboring countries, including world at large, must be responsible and should apply pressure on King to deliver justice and end refugees’ crisis.

Dr. D. N. S. Dhakal:  During his numerous visits to India since last sixteen years, in pursuit to seek resolution to Bhutanese refugees’ issues, he observed that Government of India is the key to unlock this impasse and open the floodgates of happiness to cheerless refugee face. He also said that Bhutan and India enjoy special relation and Government of India’s investment in hydroelectricity generation is one of the hallmarks of this relation. However, he wants this resource to be shared by every Bhutanese citizen to enable them to lead a very dignified life.

The dramatic changes that unfolded in Nepal recently were largely due to the active role played by India in the negotiated agreement. He therefore urged GOI and people of India to adopt a similar approach in order to make Bhutan regime yield, and extend same help to Bhutanese democrats. He expressed his serious doubt over the refugees leading a happy life in case they are resettled in a third country. In pursuit of seeking practical solution, one is overlooking the state of happiness amongst refugee, which in traditional people is primarily centered in their spiritual values and natural surrounding.

Though the Draft Constitution doesn’t adequately address the dignified return of refugees to their homestead, yet refuges are optimistic. He added that the repatriation is possible because King himself has said that occupants in these camps are Bhutanese citizens. The verification of refugees into four categories must be struck down and if at all categorization is needed, there should be only two categories – Bhutanese and non-Bhutanese. Therefore, Bhutanese refugees must be repatriated before 2008 so that they can participate in the ongoing political processes.

Ravi Nair: He bluntly spoke about the ruthlessness of the Government of India’s protection of national interest. He informed participants that the retreat of Indian army in 1962 Indo-China war didn’t take place from Assam but the eastern Bhutan. This vital strategic interest coupled with internal security threat, after the formation of ULFA, Bodo outlaws and subsequent KLO in 1980s, made India to toe tough line in protection of its trans- North East geopolitical interest. Government of India has never looked at any relation with neighboring countries through democratic prism. Instead it only looked through security perspective.

Contrary to the views of many speakers, he quashed the developments of revolution and birth of radicalism in camps by few hotheads. He warned Bhutanese friends never to underestimate the power of Indian state and keep self-restraint and vigil in floating such politics of ‘terrorism’. In the name of terrorist, Indian security forces will crush 50,000 Bhutanese youth and this action is ostensibly as few so called refugee radicals are already termed as “terrorist’ in many local and national dailies. Therefore, such development should be stopped in its infancy and refugee leaders must discourage such tendencies.

He criticized King of Bhutan in creating halo around its figure by declaring abdication provision in draft constitution. However, keen study of Constitution reflects his true intension as corroborated by article 20-25 detailing procedure like recognition of “willful violations of this constitution”, “three-fourths votes of joint sitting of parliament’ and then subject to simple majority votes cast in National referendum. Not forgetting the fact that 20% appointment of members in National Council and Chief Justice, rests with King, as granted under Constitution.

He criticized the European countries and UNHCR for not exerting enough pressure on King of Bhutan for last many years. The US offer for resettlement must be accepted as great opportunity to escape the bleak future. He extends kudos to Bush administration for bringing out bold and pragmatic solution.

Dr. Mahendra Lama: He traced the genesis of refugee problem and possible solution to crisis in the wake of US resettlement offer. He noted that Citizenship Act of 1985 and 1977 are responsible for generating the refugee crisis. He also pointed out that Nepalese origin Bhutanese have paid a heavy price for ‘open border’ between India and Bhutan.

He added that King has personally accepted the mistakes committed by his government in the implementation of 1958 Citizenship Act. This apparently indicates that King reserves special consideration to genuine Bhutanese citizen of camps. He therefore urged King to exercise his prerogative in granting Citizenship as there has been numerous precedents in past.

He also spoke about the security ramification to India. There is alarming rise of extremists and radicals in camps. He also highlighted that traditional refugee leaders are unable to contain the radical youths. He revealed his participation in one of the meetings and was appalled to find the unmistakable similarity of Nepalese Maoist language used by refugee youths. This is likely to create disturbances in North East.

He told that he is personally in favour of 60% to 40% resettlement in US. 40% repatriation is stressed because he feared the likelihood of another round of eviction from Bhutan and the worst humanitarian crisis will revisit, especially when environment in neighboring Indian states, is soared with anti-Nepalese sentiments.

Satya Prakash Malaviya: He said that presence of more than 100,000 Bhutanese citizens leading the life of exile in UNHCR monitored camps in Nepal points the continuity of human rights abuses in Himalayan Kingdom. His first hand witness to the plight of refugees, courtesy his visit to camps in 2000, yet they are braving it with the hope of returning to their home land with honor and dignity. He, like other speakers, reiterated that resolution of refugee crisis demands tripartite talks (including India), in the wake of failure of 16 rounds of bilateral talks, between Nepal and Bhutan, to resolve the issues so far.

He has grave doubts regarding sincerity of King of Bhutan in ushering true, genuine and vibrant parliamentary democracy in Bhutan, after carefully scrutinizing the Draft Constitution. The inclusion of King in parliament along with National Council and the National Assembly draws parallel to Indian Constitution but unlike Indian Constitution, there is a no provision reining back the King. The vesting of legislative residuary power by Article 2[16(e)] clearly indicates his true intention. Further more, the involvement of Chief Justice in interim government or appointment council completely distorts the basic features of Constitution – Executive, Judiciary and Legislator. The separation of power is basic tenet of a democratic setup wherein the jurisdiction of each organ is sharply defined, sadly the Constitution of Bhutan is lacking in this aspect.

India, the largest democracy in world, must extend helping hand to Bhutanese democrats because Mr. R. K Dorji and his associates seek the full fledge practicing democracy under constitution and do not demand the abolition of monarchy institution in Bhutan.

Sudhindra Bhadoria: While chairing the first session, he reminded that if refugees are not repatriated before democratic election, the election in Bhutan will be severely affected due to de-franchisement of large numbers of potential votes. The democratic forces will not be contained perennially, as the recent developments in Nepal have vividly demonstrated. Therefore, it should be as an eye-opener to both, Indian government and King of Bhutan.

The revolutionary Constitution of world is in making in Nepal and he has no doubt that this Constitution will have profound impact on Bhutanese democrats. He extends his solidarity to Bhutanese aspirations for a genuine democracy and wished that all Bhutanese democrats will be able to participate in 2008 democratic elections.

Anand Swaroop Verma:  He said that numerous conference and seminar on Bhutanese issues has been held in India since last sixteen years and he is disappointed to see the continued non-response from Government of India. He recollected the encounter with Mr. I. K Gujaral, the then foreign Minister in 1997, whereby Mr. Gujral told the delegation that stand of Indian Government is shaped by geo-political compulsions and national interests.

L to R : Mr. Satya Prakash Malviya, Dr. Mahendra
Lama, Mr. Ravi Nair & Prof. Balraj Kumar at conference.
He sees no solution to refugee crisis, without the involvement of India, even after the Americanization. The refugees’ crisis is not bilateral issue but indeed tripartite, because Bhutan and Nepal doesn’t share same boundary. He also disclosed the changing mindset of refugees. During his visit to camps in 1995, he saw that majority of refugees holding King responsible for their plight. But in his recent visit to camps, majority of refugees especially youth, comprising 40% of camp population, view India as an obstacle in their solution. After taking stock of ground realties, he warned that anti-India sentiments are brewing thick and fast. He also lamented the blindness of King of Bhutan’s to see the writing on the wall.

In such a situation, the potential of yet another Maoist movement cannot be ruled out. The occupants in camps have just witnessed the success of Maoist movement uprooting the monarchy in Nepal and its impetus upon democratic forces. If this crisis is not addressed immediately, then grave problems are bound to start soon. He warned that Govt. of India should not cite its inability to understand the anti-India sentiments in neighborhood hereafter.

Dr. Arun Kumar Singh: He pointed out that continued silence of Indian government towards Bhutanese refugees issues may be attributed due to its unquestionable enjoyment of Bhutanese water resources and hydro-electric power project. This acquires immense significance in the backdrop of increasing power shortages in India coupled with the strong anti-dam movement throughout India, which has made construction of large dams difficult. On the other hand, Bhutan has the highest land per capita in south Asia and resettlement of dam affected people shouldn’t have any problem. India completed the first power project of 450 MW in Bhutan in 1988, when the refugee crisis came into being. However it was granted to Govt. of India only in 1990, after watching the stand of GOI. Another 1050 MW power project has just been completed by GOI in Bhutan. India has also proposed a generation of 5000 MW in next 10 years in Bhutan. Therefore power generation is a crucial factor in Indian stand on Bhutanese refugees.

Prof. Anand Kumar:  He reminded that qualitative change is lurking on the horizon but warned that necessary precaution must be taken as all changes are not positive. He outlined four principles that Bhutanese friends must followed. The first principle is unity in action. Though unity is hard to achieve, but the possibility of unity should never be closed. The second principle is unity in purpose. There can be large confederation with similarity in purpose that Bhutanese need democracy in Bhutan and dignified return of refugees. Third principle is on the careful cultivation of friends’ role. There are many friends and one shouldn’t castigate if some are nor participating regularly. He reminded that emerging leadership in Indian has been massively influenced by money factor, mass factor and media factor. The issue of Bhutan doesn’t create any of these three factors and therefore Bhutanese democrats must engage in cultivating new friends from Assam, Sikkim, Bihar and West Bengal as these people will have more understanding and sensibilities to their cause. He says, “Struggle unites, power divides, therefore, remain focus in your purpose.”

Unlike many speakers, he urged Bhutanese democrats to accept Draft Constitution as a valuable milestone and get prepared for 2008 democratic elections. This action itself indicated that King has accepted that existing laws needed change. Unlike past, now Bhutanese democrats and King, both are playing same game of democracy. He confidently expressed that game of democracy has never been won by monarchs and anti-democratic forces, provided the democratic forces remain united. The solution to Bhutanese issues doesn’t lie in external forces but strength from within. He therefore asked Bhutanese democrats to present a very strong united front to seek the purpose of return of refugees in dignity to their home land and vibrant participatory democracy in Bhutan.

Dr. Gopl Krishna Siwakoti : He accused the blatant denial of the right to return of the Bhutanese refugees as enshrined under various international treaties by the Royal Government of Bhutan. It has curtailed the fundamental right to nationality of its own citizens. This is coupled with the absolute failure to take firm stand by the Government of Nepal resulting in the loss of destiny to resolve the problem.

He found the rising level of frustration, mostly among youths, owing to life becoming more and more difficult to sustain, and lack of any progress in finding a ‘desirable’ solution.  One factor is sudden surge of radicalism – contributed by political changes in Nepal (Loktantra/Ganatantra voices beginning to take root) and there is significant increase in the activities of BCP (Bhutan Communist Party) and similar other youth groups and growing possibility of armed insurgency originating from the refugee camps.

One of the factors contributing to lingering refugee crisis is Nepal government’s passing the buck to others for inability in finding a solution. For a long time, it took a view, that the problem is primarily between Royal Govt. of Bhutan and refugees and therefore has nothing to do with Nepal and Nepali people. Consequently, Bhutanese refugees were not in its priority list for several years, and its own internal political turmoil was also a decisive factor in this stand. This has lead to international community to engage in finding durable solution to the protracted problem and increasing the concerns on growing radicalization and outbreak of violence in camps or emanating from the camps. He said, “the international community should use carrot and stick formula to put pressure on Bhutan regarding the settlement of refugee crisis. Refugees deserve the right to return home-unconditionally!!!”

Bhairav Acharya:   He presented the legal analysis of draft constitution and found several controversial provisions of the proposed Constitution that require closer examination.  Tradition and popular opinion may require the retention of a Wangchuk monarch, adequate care must be taken to ensure that (i) royal privileges are not excessive, and (ii) the King’s continuing hold on governance yields to a more democratic framework.

Dr. G.K. Siwakoti, Mr. Tara Rai, Mr. Mohan Tamang,
Dr. D.N.S. Dhakal, Dr. A.K. Singh & Hari Adhikari getting
ready to watch Documantary

Prof. Anand Kumar addressing the conference.
Mr. Ravi Nair & Mr. R.K. Dorji is also seen.

(a) Royal Privileges

 The King of Bhutan has many privileges that may be employed in his discretion. These relate to, (a) crown property, over which the King has “all rights and privileges including the provision of palaces and residences for official and personal use” [see, Article 2(13)(b)]; (b) economic privileges, including a privy purse and a near-total exemption from taxation [see, Articles 2(13)(a) and 2(13)(c)]; (c) Royal Projects, which are not specified and thereby left to the King’s imagination [see, Article 2(14)(e)]; (d) titular awards and decorations, which the King may confer upon anyone he pleases [see, Article 2(16)(a)]; (e) citizenship and land, both of which the King may grant sans accountability [see, Article 2(16)(b)]; (f) criminal justice, including the grant of amnesty and the commutation of sentences [see, Article 2(16)(c)]; (g) legislative powers to command laws through the legislature free from governmental hindrance [see, Article 2(16)(d)]; (h) residuary powers over all “matters which are not provided under this Constitution or other laws” [see, Article 2(16)(e)]; and, (i) “any other matter as may be commanded by the [King]” [see, Article 2(14)(f)].

While it may be necessary to furnish the King with discretionary privileges, care must be taken to ensure that they are not overbroad and excessive, lest they cloak an unchecked authority with the garb of Constitutionalism. The proposed Constitution will create for Bhutan an elected parliament with the plenary power to make laws. In such a system, any royal privilege must be reasonable and yield to a regime of monitoring and oversight. To this end, it is proposed that the royal privileges be monitored by a Privy Council. However, two out of three members of the Privy Council are the King’s appointees [see, Article 2(14)]. This defeats the purpose of the monitoring exercise. In addition, the royal privileges can also be exercised by a regency where the monarch is not of age [Article 2(7)(a)]. Therefore, measures must be taken to re-examine the royal privileges, in a manner consistent with Bhutanese customs and tradition, and provisions must be introduced into the proposed Constitution to bring the privileges within the oversight of Bhutan’s parliament.

(b) Governance

The exercise of proposing a democratic constitution would be incomplete if a system of checks and balances were not worked out to monitor the powers and functioning of the institutions of governance. Bhutan’s proposed Constitution anoints the King with significant powers that will make him an important institution of governance. This is not a problem on the face of it. But, if the King’s powers are too extensive to compel other institutions of governance to yield to his influence, Bhutan will see a crisis of democratic governance or no real democracy at all. There are several areas of the King’s constitutional powers relating to governance that need clarification –
(i) The Prime Minister and Cabinet shall be responsible both to the King as well as Parliament [see, Article 20(7)]; (ii) The King’s legislative powers are extensive, including his, (a) independent power to send messages [see, Article 10(8)],
(b) convene extraordinary sessions of Parliament [see, Article 10(12)],
(c) power to nominate eminent persons constituting twenty per cent of the other house [see, Article 11(1)(b)],
(d) power to block bills even if passed by both legislatures [Article 13(10)(11)],
(e) absolute control over all residuary power [see, Article 2(16)(e)].
(iii) The King’s appointments powers are partly disciplined by advice, but not always so [see, the provisions of Article 2(19) on various appointments, Article 11 (on nominations to the National Council), Article 19 (Interim Government – inevitably so), Article 24 (Royal
Audit Authority), Article 26(2) (Anti-Corruption Committee), Article 28 (Attorney General) – all holders of constitution office (Article 30(2))].

The powers of the monarchy under the above provisions have the potential of stifling genuine democratic sentiments. The King has extensive powers to interfere in the legislative and executive processes and has absolute control over all residuary powers.

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