The making of the Constitution

Article 7

Freedom

Perspectives:The Birth of Freedom can be traced to “the gray dawn of 21st September, 490 B.C., 9,000 citizen-soldiers of Athens formed ranks on a plain by the Bay of Marathon.” Initially, freedom was not universal and pervasive. The slaves were denied freedom. 

Buddhism is based on social reforms and freedom for all. Lord Buddha taught eight freedoms and ten advantages. The word for freedom in Dzongkha was Daelwa in Choenjug and Zhelung. Hence, we used the word Dal dbang to mean freedom. It is a more profound word. It was bitterly opposed by the Dzongkha experts and few Parliamentarians. They suggested rangwang but it means independent or self-determination. We cannot have common words for everything. The words must have history, philosophy and inspiring values with source.

Freedom can be negative freedom⁴⁵ as espoused by Spencer⁴⁶, positive freedom⁴⁷, ‘self-determination or autonomy freedom as advocated by Kant, freedom of religion by scientific humanist Espinoza and religious toleration advocated by Montesquieu. However, freedom must have rational action as Bentham said: 

“Source freedom is valuable for more opportunity to pursue objectives that we value and importance to the process of choice itself. Freedom is to be found in rational action. Rational action cannot be based on a single individual’s personal desires but to be a universal law… a person shares with the whole community. He extended this community to all rational beings.”

Kant insisted that actions resulting from desires cannot be free and he differentiated the ‘opportunity aspect’ from the ‘process aspect.’ Freedom is valuable for more opportunity to pursue objectives that we value and importance to the process of choice itself. Apart from other freedoms, our Constitution guarantees six important freedoms: 

(a) The freedom of speech and expression;  

(b) The freedom of assembly; 

(c) The freedom to form associations and unions; 

(d) The freedom of movement; 

(e) The freedom to reside in any part of the territory of our country; and

(f) The freedom of profession, occupation, trade and business. 

Liberty

The growth of liberty, prosperity and representative government is an inexorable progress of human institutions that began with Greek democracy. After the Revolutions of 1848 in Western Europe, the doctrine of individual liberty developed. Succeeded by the 1789 Declarations of the Rights of Man and the Citizen, the idea of human rights and civil rights advanced. 

Liberty is classified into negative and positive liberties. The concept of individual liberty was criticized by Angles, Marx, Nietzsche and Freud. They had viewed equality as a main component of a society’s grade of liberty. Liberty without equality, anarchists argue to this day, is only the “freedom of the powerful to exploit the weak”. Fried Hayek countered the argument that:

“...liberty, far from being improved by social justice and equality, was in fact endangered by socialist regimes.” 

In the Bhutanese context, the term for liberty is dod bdang (Doe-wang). Liberty comprises of civil, political and the economic liberties. The right to liberty protects the physical liberty of the person through a cluster of interrelated rights such as the right against arbitrary arrest or detention, the right to be secured from unreasonable search and seizure, including the rights to information and access to legal advice, the right to be brought promptly before a judge, and the right to be treated with humanity and respect.

Reasonable restrictions

All the rights, freedoms and liberties are not absolute. The State can place reasonable restrictions on them in certain clearly defined situations. It is in consonance with section 2 of Article 29 of the Human Rights:

“In the exercise of his rights and freedoms, everyone shall be subject only to such limita-tions as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

The phrase “reasonable restrictions” means that the limitation imposed upon a person in the enjoyment of a particular right, should not be arbitrary or excessive in nature. Legislative or administrative ruling or order which arbitrarily or excessively invades on fundamental rights is not reasonable within the spirit and definition of the Constitution. The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations. Therefore, this provision can be invoked only under exceptional circumstances. Bhutan can face dangers to peace, security and sovereignty. Under such extreme cases, fundamental rights should be subject to some limitations. This principle is incorporated in many Constitutions. Rights of an individual are protected by the State. When security is endangered, right must yield to security. One cannot violate the security of the Nation that confers the right. The principle “salus republicae est suprema lex” which means “the safety of the State is the supreme law” is an accepted norm.

Similarly, one’s right cannot nullify the right of other person. Freedom and rights do not provide exclusive and unfettered license to an individual. Rights are social entitlements, which must be exercised with due care and responsibility to other fellow citizens. Ayn Rand mentioned that “No ones right can be secured by the violation of the rights of others”.⁴⁸ Therefore, the Drafting Committee felt the need to limit individual liberty by allowing the state to intervene in the interests of the people and the country.

Law should be for the welfare of society as a whole and rights of the individual should be protected and respected. Therefore, the fundamental rights were carefully studied and elaborately incorporated. Bhutan has many provisions from the Human Rights Conventions of 1948 and the Covenant on Civil and Political Rights, 1966.

Comments on the draft Constitution of the Kingdom of Bhutan by United Nations High Commissioner for Human Rights dated 2 August 2005⁴⁹ mentioned that:

“The draft Constitution is well drafted and quite comprehensive. The document appears to draw considerably on the civil and political rights that are set out in the Universal Declaration of Human Rights, which is very positive. The document is internally consistent and the English translation of the text is written in an easily understandable and clear fashion.”

His Majesty said:

‘The fundamental rights accorded in the Bhutanese Constitution are more comprehensive than those granted under the constitutions of most countries. The vision of Bhutan is to have a vibrant democracy.’

Fundamental rights limit the power of Legislature, secure individual liberty, barricade from majority and provide security against arbitrary action by the government. It enhances individual’s freedom for development to his/her fullest potentiality. Civil, political, social, economic and cultural rights are the basis of human progress, peace and progress of the Nation. These vested and contingent rights prevent trampling of the inalienable rights, crushing of the inherent freedom and pounding of the precious liberty of an individual. No political authority, power and wealth can violate fundamental rights. Fundamental rights provide security against arbitrary action by the authorities. These rights represent the cherished values of the people of Bhutan. They are justiciable and beyond the reach of majority establishing a government of law and not of man.

Contributed by Sonam Tobgye, Thrimchi Lyonpo

To be continued Footnotes

⁴⁵ Negative freedom consists in the absence of coercion, the absence of interference from other people. Negative rights are a person right that another party refrains from doing something. 

⁴⁶ Herbert Spencer in Social Statics (1851).

⁴⁷ Positive freedom is the actual possibility of developing human capacities – enlarged ability to contribute to common good.

⁴⁸ Refer “The cashing-In, The student ‘Rebellion’ Capitalism: The Unknown ideal, 256.

⁴⁹ Prepared by Robert Husbands, Rule of Law and Democracy Unit, United Nations Office of the High Commissioner for Human Rights, Geneva, 28 July 2005.