A seven-member bench of the High Court will decide whether to issue a writ on the legality of fiscal incentives granted bypassing the Parliament or dismiss the writ petition filed by Druk Nyamrup Tshogpa (DNT), according to Justice Lungten Dubgyur.
The Justice, at the hearing between the Office of the Attorney General (OAG) and DNT last Wednesday, said they would come out with a decision soon and wouldn’t hold the case for long because of the nearing 10th Session of the Parliament and the third parliamentary elections.
Meanwhile, DNT had filed the case with the High Court on August 18, 2017 against the government for the alleged violation of the Constitution by granting fiscal incentives without Parliament’s endorsement.
However, Office of the Attorney General, acting for and on behalf of the government, requested the court for immediate dismissal of the petition filed by DNT on three grounds last Wednesday.
The OAG submitted that the subject matter of the impugned petition filed is sub-judice under article 21(8) of the Constitution.
The OAG stated that the pursuant to National Assembly’s resolution at its 9th Session of the Parliament, the government has petitioned His Majesty the Druk Gyalpo, vide petition dated August 16th this year for consideration to invoke article 21(8) of the Constitution to obtain opinion of the Supreme Court on the issues of fiscal incentives granted till May this year by both the present and previous governments, thus effectively rendering the subject matter sub judice so far as due process of law is concerned.
According to the above article, where a question of law or fact is of such a nature and of such public importance that is expedient to obtain the opinion of the Supreme Court, the Druk Gyalpo may refer the question to the Supreme Court for its consideration, which shall hear the reference and submit its opinion to Him.
OAG also stated that section 18 of the Civil and Criminal Procedure Code (CCPC), 2001 provides on the exclusive advisory jurisdiction of the Supreme Court on the matters referred to it for its opinion.
Secondly, OAG submitted that the petitioner has no locus standi to file the present suit.
OAG stated that Article 21(18) of the Constitution vests in every person the right to approach courts in the matter arising out of the Constitutions or other laws. However, that right is subject to article 7(23) of the Constitution, which provides that “a person can approach a court of law subject to the procedure established by law”.
Hence, according to OAG, section 31.2 of the CCPC prescribes procedural pre-condition for a person to have legal standing to file a petition. However, under section 149 of CCPC, OAG stated, if the petition is a class action suit, there must be a large number of individuals whose interests are closely related, and the petitioner not only has to represent interests of those members but must also be aggrieved or be an injured member or be an injured member of that class of people.
OAG stated that in granting a fiscal incentive, there is a positive action targeted to lift certain tax burden from the general populace, which is diametrically opposed to the burden of tax imposition. Further, injury must result from violation of legal rights for which law provides remedies and the petitioner being juristic person in the eyes of law is incapable of being directly affected by the act of respondent nor does the petitioner represents large number of aggrieved individuals.
OAG stated that it is both the duty and prerogative of the Opposition in the House, under Article 18 of the Constitution to critique and scrutinize the laws and policies of the ruling government in developing, defining and presenting alternative measures.
OAG stated that petitioner cannot invoke article 15(1) of the Constitution for its locus standi.
On the third ground, OAG maintained that the government has addressed fiscal incentives granting powers in perpetuity. The government determinately believes that granting of fiscal incentives is neither unconstitutional nor illegal as they are granted strictly as per standing provisions of the applicable laws which has been tested and reinforced by the Supreme Court judgment number (Hung 11-1) on February 2011.
OAG maintained that both the previous and present governments granted fiscal incentives to boost economic growth by incentivizing investments, broaden future tax base, generate employment opportunities and secure sovereign economic interest of the nation.
However, being concerned of the possible future misuse of the fiscal incentive granting power and to further strengthen democratic governance, OAG stated that the present government has not only decided to table fiscal incentives as Money Bill to achieve democratic deliverance thereon, but had already adopted it as Fiscal Incentives Act 2017 at the 9th Session of the Parliament.
On the sub judice issue raised by OAG, legal representative of DNT Yeshey Wangdi said it is only the Druk Gyalpo’s prerogative to seek clarification from Supreme Court as per the Article 21(8) of the Constitution.
He added there is no way mentioned that the government and parliament can approach Druk Gyalpo to seek clarification from the Supreme Court.
On the locus standi, Yeshey Wangdi said as per section 31(2) of CCPC 2001, they have concrete case of controversy. “DNT is a lawful entity and a registered party, hence DNT has locus standi,” he reasoned.
He said the government in the name of fiscal incentives has given tax remission to few business entities, which should come through the Parliament.
Dechen Dolkar from Thimphu