The Making of the Constitution

Article 9

Principles of State Policy

Perspective:This Article comprises guidelines for government policy-making. It received mixed reactions during the consultation process. Some felt that it invaded into the executive and legislative jurisdictions. 

Conversely, many praised it. Renata Lok Dessallien, UNDP Resident Co-ordinator called it “the noble vision of Bhutan” for current and future generations.

The Principles of State Policy embodied in this Article are directions to the Government to guide the establishment of a just society and attainment of Gross National Happiness. They are the active obligations of the State, which the government must have in mind while framing laws and policies. It acts as a check on the government. They are yardsticks in the hands of the people to measure the performance of the government against nationally prescribed goals and principles. 

The Fundamental Rights and the Principles of State Policy have to be construed harmoniously. They are complimentary and supplementary to each other. The Fundamental Rights are primarily aimed at assuring political freedom to citizens by protecting them against excessive State action. The Principles of State Policy are aimed at securing social and economic freedom through appropriate action. Lord Buddha said, “A correct economic policy should be based on voluntary participation.” Therefore, it is the duty of the courts to apply the Principles of State Policy in interpreting the Constitution and the laws.

This Article implies escalation and flexible response. The Government must pursue sound and progressive economic and social policies. Individual citizens are empowered to be watchful and remind the Government through their representatives or through elections to address the issue of social equity as envisioned by His Majesty. The Government must be committed to continually improving services, promoting economic growth and opportunity and meeting peoples’ aspirations for a progressive future for Bhutan. The Drafting Committee embodied a preservative principle under this Article to ensure that things do not get worse. 

This Article prescribes general principles of social and economic rights to be followed by the State. Positive obligations are placed on state agencies by the Constitution, where economic, social and cultural rights require them to ensure the people their basic needs. The Article has the enduring vision and pervasive influence for a great Bhutan. However, the principles of State policy are not enforceable in the court of law. This Article should be the road map in formulating the policy of the government. Most of them are non-abstente clauses. Prof. Ben Saul rightly observed during the seminar on 15 December 2010 in Bhutan that:

“Under Article 9 of the Constitution, the principle of state policy looks like what you might describe as social or economic rights under international law. And we said Civil and Political Rights are classically justiciable in many countries through the courts. Whereas a traditionally social and economic rights are not considered justiciable why so these arise to health care, education, work rights and so forth and its traditionally claimed that these are not appropriate for enforcement by the courts.”

According to the former Chief Justice of India, J.S. Verma:

“The provisions are similar for the creation of a welfare state towards the pursuit of the goal of Gross National Happiness. The concept of GNH encapsulates the vision of a welfare state under this Article.”

The political party in power must endeavour to follow the principles, ideals and goals set forth. Otherwise, dramatic changes may occur after every election with uncertainties. The objectives of this Article are to endeavour up-liftment of disadvantaged and remove inequality:

(a) Between the genders;

(b) Between the rich and poor;

(c) Of income, concentration of wealth, and promote equitable distribution of public facilities among individuals and people living in different parts of the Kingdom.

(d) Between the different sections of people to access medical facilities and education; and

(e) Between the areas and Dzongkhags on the basis of different needs so that the allocation of national resources results in comparable socioeconomic development.

And the principles of State policies are to:

(a) Establish Bhutan as a welfare state and to secure socio-economic democracy by rendering social services to the people and promoting their general welfare;

(b) Set out the aims and objectives of the Government;

(c) Be conscious of these principles while enacting laws and framing policies;

(d) Impose positive obligations on the Government to implement the policies;

(e) Constitute social and economic programmes for a progressive democratic state;

(f) Implement Social, Economic and Cultural rights;

(g) Provide social and economic justice;

(h) Promote social equality to avoid concentration of wealth in the hands of a few people;

(i) Promote justice as harmonious reconciliation of individual conduct with the general welfare of society;

(j) Foster social justice to eliminate inequalities of wealth and opportunity;

(k) Advance economic justice for distribution of material resources for common good, national interests and prevent concentration of wealth;

(l) Avoid any unreasonable or arbitrary distinction among the people in political matters, contest in elections and participate in voting irrespective of race and any other status;

(m) Promote those conditions that is conducive to co-operation in community life and the integrity of the extended family structure;

(n) Strive to create conditions that will enable the true and sustainable development of a good and compassionate society rooted in Buddhist ethos and universal human values;

(o) Encourage free participation in the cultural life of the community, promote arts and sciences and foster technological innovation; and 

(p) Protect and promote environment.

Commenting on the provisions of the Article, UNDP mentioned that:

“A number of the ‘Principles of State Policy’ under Article 9, designed to guide future legislation, point towards a fair and equitable society and other noble state objectives…The draft Constitution provides guidance for future legislators on how best to manage state finances for the long-term benefit of the people and in pursuit of the social ends discussed above.”

Elaborating on the Article, His Majesty said⁵⁷ :

“We have included many more fundamental rights for the wellbeing of our people than in many other developed countries. The main objective of including such rights in our Constitution is, first and foremost to our people. We have included such rights, after identifying the importance of welfare and benefits of those rights to our people… If our country does not progress economically, the fundamental rights, the economic rights, and the human rights enshrined under the Constitution would remain only on paper. They would not be guaranteed and translated into action. Therefore, it is very important to keep in mind that the economic prosperity is an important instrument to guarantee these rights.”

Another unique provision of this Article is Section 24 which provides that Bhutan shall promote goodwill and cooperation with nations and foster respect for international law and treaty obligations and encourage settlement of international disputes by peaceful means in order to promote international peace and security. Bhutan, as a peace-loving nation and as an integral member of the international community must respect international law and customary law, including those of Jus Cogens ⁵⁸, pacta sunt servanda, principles of equality, principles of reciprocity and other principles.

Principles of State Policy are to provide social and economic justice, where there will be no concentration of wealth in the hands of a few. It provides guidelines and directives to the Government, to be kept in mind while framing laws and policies. This principle laid down the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. It aims to create social and economic conditions under which the citizens can lead a good life. They also aim to establish social and economic democracy through a welfare state. State policy enshrines the directive principles of establishing Bhutan as a welfare state and to secure socio-economic democracy, and social and economic rights.

Contributed by Sonam Tobgye, Thrimchi Lyonpo

To be continued

Footnotes

⁵⁷Public consultation in Paro on 09/11/2005.

⁵⁸Jus cogens which means “compelling law” is a technical term given those norms of general international law that are considered as hierarchically superior. They are the set of rules, which are peremptory in nature and from which no derogation is allowed under any circumstances.