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Legislating from the bench?
Posted:Aug 14, 2017
 
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In addressing a lacuna in the laws, the Supreme Court’s judgment on the Spasmo Proxyvon Plus (SP+) case may have distressed laws that it is expected to expound.
 
The judgement liberated those caught with one of the most abused drugs in the country, the SP+ from detention but not conviction.  But in allowing them to pay for their prison terms, the Supreme Court may have breached provisions of the Penal Code, which states that the court may order to pay fine in lieu of imprisonment if the offence is not a felony.
 
But those involved in the SP+ case were charged for a felony, just as most cases that involve controlled substances. The Supreme Court’s act of exonerating them by payment of fines may earn some extra revenue and set a precedent. The change this ruling has intended may be in public interest. The court may be supporting both the defendant and the prosecutor because both may be right. But in doing so, it has also violated the Penal Code.
 
Unless ruling a change means violating laws, the Supreme Court has legislated. By empowering the Bhutan Narcotics Control Authority to update the list of banned substances, it has usurped the law making power of the Parliament. Where the Court could have exercised some judicial restraint and be the creative force of law, the Court is telling the Parliament what it must do, not simply what it cannot do.
 
As an institution that has no power of the purse or the sword, the Court must rely on the legislative and executive branches of the government to enforce its directives. As the guardian of the Constitution and the final authority on its interpretation, the Supreme Court legislating laws is injudicious for it violates the principle of separation of powers that is enshrined in the Constitution.
 
While the national interest is the unifying constitutional element and common good, the guiding principle, encroachment between the branches of the government is usurpation of power. Article 1, Section 13 states: “There shall be separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution.”
 
The Court may not be institutionally competent to legislate because the law making process in a democracy concerns policy making on a majority basis by the representatives of the people.  The Court could have advised the legislature to amend laws that are ambiguous and respected the wisdom of the Parliament in not giving one agency the power to update the banned list of drugs.
 
However, if the Court is struggling alone with a social issue and the legislature remains oblivious of it, the Court must assume the legislature’s responsibility. But in doing so, it must be aware that it would have debilitating effects on other branches of the government.
 
When the Court steps in to correct legislative defects, we could risk the people losing faith in the Parliament. The creditability and legitimacy of the Parliament is questioned if the laws they enact today have to be amended tomorrow. When the Court legislates, questions arise on the Court’s legitimacy as a policy maker in a democratic society.
 
But even if the changes are desirable, the Court is not the right institution to initiate them. If it does so, our legislature must learn that they need to do more than be distressed.
 
Kuensel Online, August 14, 2017
 
 
 
 
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