Wednesday, April 13, 2022

BCSR (2018) Article 3.3.16 Is Null And Void

When the Kuensel report on the compulsory retirement of the two forestry officials appeared and I blogged on the issue yesterday, a senior member of the Bhutanese society sent me a message saying that it is now time for us to create an NGO to fight against abuse by some apparatus of the state. That makes sense – particularly in light of the glaring incidences of miscarriage of justice.

In a response to yesterday’s Kuensel report, the Ministry of Agriculture is strident and takes on a posture of defiance, and states as follows:

The two forestry officials were compulsorily retired with benefits for insubordination – for violating order for deployment and for violating the Civil Service Values and Conduct as articulated under Chapter 3 of the Bhutan Civil Service Rules and Regulations 2018.

While attempting to invoke Chapter 3 of the BCSR (2018), the Ministry of Agriculture is obviously trying to justify their action based on the following provision of the BSCR (2018):

BCSR (2018) Article 3.3.16

A civil servant shall refrain from making any statement of fact or opinion in the media (broadcast, print and online) or in any document which may have adverse effects against the policies or actions of the Royal Government.

It is my understanding that the Ministry’s supposition is untenable. The Constitution of the Kingdom of Bhutan is clear that any law or rule that is inconsistent with the Constitution shall be null and void. It provides as follows:

Article 1.10 of the Constitution of Bhutan

All laws in force in the territory of Bhutan at the time of adopting this Constitution shall continue until altered, repealed or amended by Parliament. However, the provisions of any law, whether made before or after the coming into force of this Constitution, which are inconsistent with this Constitution, shall be null and void.

The Constitution renders the BCSR (2018) Article 3.3.16 null and void

Thus, the application of the BCSR (2018) Article 3.3.16 is unlawful since it is in conflict with the Constitutional provisions.

There is no ambiguity about the rights of a citizen empowered under the Constitution – whether civil service, politician, armed forces or a stone crusher by the roadside. The Constitutional provisions read as follows:

Article 7.2
A Bhutanese citizen shall have the right to freedom of speech, opinion and expression.

The Ministry of Agriculture attempting to muzzle the two forestry officials based on a rule that is automatically rendered null and void by the Constitution, may not find acceptance in the court of law. I believe that the Ministry should reconsider their stand.

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