The making of the Constitution

Article 8

Fundamental Duties

Perspective: His Majesty said that Bhutanese democracy must have rights, freedoms and duties based on our values, traditions and culture. Indeed, fundamental rights under Article 7 imply corresponding fundamental duties under this Article. When the Government grants rights, we have to assume duties in the interest of our country. Consequently, fundamental rights are neither solitary nor exclusive. Corresponding fundamental duties under Article 8 are necessary for peaceful co-existence. The French Declaration states that:

“Liberty consists of the power to do whatever is not injurious to others; thus the enjoyment of the natural rights of every man has for its limits only those that assure other members of society the enjoyment of those same rights; such limits may be determined only by law.”⁵⁰

Further, the Universal Declaration of Human Responsibilities proposed by the inter action council established in 1983 in support of the Article 29 of the Universal Declaration of Human Rights states that:

“Everyone has duties to the community in which alone the free and full development of his personality is possible.”

There are different concepts of duties as explained by Jenks such as Universal duties (binding on all normal members of the community), General duties (binding on classes of normal persons not voluntarily formed), and Particular duties (binding on persons who have voluntarily undertaken them.) Conversely, Austin distinguishes between relative and absolute duties. According to Austin, absolute duties are:

(a) Duties towards God or lower animals. He says rights cannot be vested in gods as they are not legal persons. Duties are owed to persons indefinitely in the community. He states that right cannot be vested in an indeterminate entity like society.

(b) Duties towards  self-regarding duties. He said that one cannot have any right from its own self. 

(c) Duties owed to the sovereign. He states that the sovereign is the creator of the rights at its own will, hence sovereign cannot be the holder of the right.

The Fundamental Duties enumerated in this Article can be classified as duties towards self, duties concerning the environment, duties to society and duties towards the Nation. Thus, citizens are morally obliged by the Constitution to perform these duties. Justice Holmes said, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”⁵¹  The law, he said, was founded on duty. Holmes sketched out a logical categorization of duties. There were duties of sovereign powers to each other, duties of all persons to their sovereign, duties of each person to every other person, and of each to all, and so forth. Dereliction of duties can amount to offences under the laws as Parliament may decide. Further, George Bernard Shaw said “Liberty means responsibility. That is why most men dread it”.⁵²

Every person should bear a moral duty to have self-limitation and to enjoy the conferred rights.  As Buddha said,“Let no one forget his own duty for the sake of another’s, however great; let a man, after he has discerned his own duty, be always attentive to his duty.”⁵³ Thomas William Rhys Davids said that; 

“The Buddha’s doctrine of love and goodwill between man and man is here set forth in a domestic and social ethics with more comprehensive detail then elsewhere. And truly we may say even now of this Vinaya or code of discipline, so fundamental are the human interests involved, so sane and wide is the wisdom that envisages them, that the utterances are as fresh and practically as binding to-day and here as they were then at Rajagaha. ‘Happy would have been the village or the clan on the banks of the Ganges where the people were full of the kindly spirit of fellow-feeling, the noble spirit of justice which breathes through these naïve and simple sayings.”⁵⁴

During the last decade, the imbalance between the rights and duties emerged. In this connection, Samuel Gregg⁵⁵ reminds that

 “Rights-talk’ coined by Mary Ann Glendon (1991), describes a phenomenon whereby political discourse is slowly impoverished by an explosion in the use of the word rights to the point whereby it becomes harder to define critical questions, let alone debate and resolve them. Similarly, Homo democraticus, as Tocqueville characterised him, is obsessive about rights, neglectful of duties, reluctant to believe in anything, anxious, and solitary. These defects make him prey to what Tocqueville called ‘soft despotism’ whereby freedom is abandoned, and a bloated central power administers to the needs of an infantilised population.”⁵⁶

Rights without duties are legal nihilism. The fundamental duties are the moral obligations and commitments that expand to the citizens as well as the State. Commenting on the Fundamental duties, UNDP stated that:

“Bhutan’s draft Constitution balances a broad list of fundamental rights (for both citizens and all persons) with a concomitant list of fundamental duties. Further, a number of principles of state policy recognize Bhutan’s international human rights treaty obligations.” 

Fundamental rights and fundamental duties of every citizen are the combined efforts and the State is realizing towards the Constitutional promise. Therefore, Lord Buddha in Light of Asia said;

“Be thou content to know not, knowing thus

Thy way of right and duty:”

In addition, under the Constitution usage of term “duty” and “responsibility” has been maintained to avoid future wrong interpretation because duty means a legal obligation that is owed or due to another that needs to be satisfied. Duty implies corresponding rights. However, duty may not have liability. Whereas the term responsibility means legally responsible for something under the legal rules and has a liability. Paying taxes is part of responsibility with liability and not a duty without liability. Word has specific meaning and implication.

Contributed by Sonam Tobgye, Thrimchi Lyonpo

To be continued

Footnotes

⁵⁰French Declaration of the Rights of Man and Citizen (1789).

⁵¹Garrity vs. New Jersey, 385 U.S. 493 (1967)

⁵²George Bernard Shaw is an Irish dramatist & socialist (1856 - 1950).

⁵³Refer Sacred Books of the East, Vol. 10: The Dhammapada and Sutta Nipata, by Max Müller and Max Fausböll, [1881], at sacred-texts.com

⁵⁴(http://www.tipitaka.net/tipitaka/study/pageload.php?book=004&page=01) The Layman’s Code of Discipline, Sigalovada Sutta.

⁵⁵Samuel Gregg is Resident Scholar at the Centre for Independent Studies (CIS) and Director of the religion and the Free Society research programme.

⁵⁶The Tragedy of Democracy by Samuel Gregg.