Obstruction of The National Council from conducting its parliamentary duties

1. Background
The Right to Information (RTI) Bill was passed by the National Assembly during its 2nd Session and forwarded to the National Council for deliberation during its 13th Session. The Chairperson of the National Council assigned the Foreign Relations Committee (FRC hereafter) for analysis and public consultations before tabling it to the House for adoption. After the end of the 12th session, the FRC drew up a program of activities on the Bill as follows:

Presentation of the Bill to NC by the Ministry of Information and Communications (MOIC)

Presentation on the Amendments to the Bill by the Legislative Committee of the National Assembly
2-day workshop on the Bill attended by civil servants, journalists, NGO’s and interested participants.
In order to kick start the process, on 14th April 2014, a request was made to the Department of Information and Media (DOIM) for a presentation on the RTI Bill. This was agreed by the Department but in the afternoon, the FRC was informed that the MOIC Secretary issued instructions that all such requests have to be routed through the Cabinet Secretary.As this was a matter of procedure that was yet to be resolved since its emergence at the 11th session of the NC (see below), the matter was immediately reported to NC Chairperson.

On 16th April, officials from the DOIM called the Chairperson of FRC, inquiring about the date and venue for the presentation. Assuming that it had been cleared by the Cabinet Secretary, the presentation was scheduled for 2 PM on 17th April which was duly informed to all NC members. However, the official called again in the afternoon that there has been a miscommunication and the matter was yet to be cleared by the Cabinet Secretary and therefore, the presentation was called off.

The NC Chairperson tried to contact the Hon’ble Prime Minister, who was on a visit to the east, to discuss this issue of the NC having to route requests for information and presentations through the Cabinet Secretary. This issue was raised to him as early as 6th September 2013 (see below). Since he could not contact the Prime Minster, an sms message was sent conveying that he sent an email concerning this issue.

On his way to the east, the NC Chairperson met the Prime Minister at Pelela and confirmed that he has received the email. The following day, the Chairperson met the Minister for Information and Communications at Mongar and appraised him about the issue concerning presentations on RTI. He asked NC Chairperson to direct the FRC Chairperson to call the Hon’ble Minister a few days later. Accordingly, the FRC Chairperson called the Hon’ble Minister, who agreed to respond soon.

On 25th April 2014, the MOIC Minister called to explain that since the procedure was established by the Committee of Secretaries, he would not be able to bypass it and suggested that the matter be taken up with the Prime Minister. This was reported to the Chairperson. Meanwhile, the Prime Minister has informed NC Chairperson that he will call the latter to discuss the issue. However, the discussion has not taken place since the Prime Minister has not called for a meeting yet.

The NC has always placed the highest importance on understanding the implications of each and every provision in every Bill that is tabled and passed by the House. To this end, the Rules of the House requires a Bill to be submitted at least 3 months before the start of the session so that there is adequate time to study each provision and its implications, hold public consultations and receive feedback from all sources before the Bill is deliberated and passed in the House. No such study has been possible on the RTI Bill without MOIC’s presentation citing the instruction of the Cabinet Secretary.

2. First instance of the issue raised with the Prime Minister
As early as 6th September 2013, the Chairperson of the National Council called upon the Hon’ble Prime Minister to discuss a set of twelve issues. One concerned the issue of NC Committees’ correspondences and dealing with government agencies. The issue was raised in the context of NC being informed that the Committee of Secretaries (CoS) has taken a decision that all requests for information and follow-up action report has to be routed through the Cabinet Secretary.

The Chairperson stated that the business of National Council is conducted mainly through the committees of the House. While discharging parliamentary duties, they are required to collect information, hold consultation meetings and follow-up on the House’s resolutions with government ministries and agencies. He stated the following:

I. For the last five years, the Committees have dealt directly with the agencies, and they have cooperated well.

II. The Chairpersons of different committees were introduced to heads of all government agencies after their elections, as was done in the past.

III. The decision of CoS adds additional layer of bureaucratic procedure. It goes against the following legal provisions:

Article 10.11 of the Constitution: “Both Houses shall determine their rules of procedure, and the proceedings of each House shall be conducted in accordance with its own rules. The rules of procedure in each house shall provide for the appointment of Committees to carry out the business of Parliament.”
Section 145 of the National Council Act: “The National Council may appoint Committees to carry out the business of the National Council.”
Section 146 states: “The rules of the National Council besides others shall provide for the establishment, composition, powers, functions, procedures and duration of its Committees…”
Section 23 of the Committees’ Rules 2011 states: “A Committee has the power to:
b. Ask for public officials and other persons to appear before it;

d. Communicate directly with government agencies, autonomous bodies, non-governmental organizations and any other organizations.”

The Chairperson shared with the Prime Minister a copy of the Committee Rules of Procedure and of correspondence with government agencies that cite the above decision of CoS. The Prime Minister agreed to discuss the issue with Cabinet Secretary.

3. Second instance of the issue raised with the Prime Minister
Two months later, i.e. on 4th November 2013, the Chairperson called on the Hon’ble Prime Minister to follow-up on issues discussed in their first meeting. He asked the Hon’ble Prime Minister on the status of the decision he has taken regarding the decision by CoS. Reiterating the fact that NC Committees’ mandate to correspond directly with government officials and agencies emanate from NC’s Committee Rules of Procedures, which is based on the Constitution and the NC Act, he stated that there is an urgency in resolving the issue as NC’s Committees need to correspond and work in preparation for the next session.

The Hon’ble Prime Minister said that he has no issue whether the correspondences were routed through the Cabinet Secretariat or directly taken up with relevant officials and agencies. He said he had instructed the Cabinet Secretary to discuss the issue again in CoS and had made it clear that there should not be any additional layer of bureaucratic process. CoS was yet to report to him. The Chairperson said that NC would wait to hear views of the CoS, and that it was important for NC to receive an early response.

4. Third instance of the issue raised with the Prime Minister
On 17th April 2014, the Chairperson emailed Hon’ble Prime Minister about the issue in the context of RTI Bill. Hon’ble Prime Minister was in the east visiting dzongkhags to sign ‘Performance Agreements.’ On 19th April, the Chairperson confirmed from the Hon’ble Prime Minister that he has received the email. A paragraph from the email reads as following:

Concerning NC’s privilege of directly corresponding with government officials and agencies on other issues, Your Excellency was very open and expressed support for the mechanism to share information. However, you wanted to hear the view of CoS and share them with us. Although we are yet to hear their views, we have not pursued it with you since most agencies do not seem to have a problem in sharing information or making presentations…Despite this, some difficulty arise once in a while. And I am compelled to draw your kind attention to one of them.

The email then updated him about recent development concerning RTI and MoIC’s refusal to make a presentation and expressed concern:

As you are fully aware, this is not a new bill to be introduced in Parliament. It has already been passed by NA. There is nothing secretive about it. As the government agency responsible for the Bill, we feel it be given an opportunity to present the Bill and respond to queries from the NC before its formal introduction in the [House]. This makes the chances of improving and passing the bill greater. We feel such unnecessary hurdle need not be created since the working modality among us, as mentioned above has been progressing well.

Therefore, I would like to request Your Excellency to kindly discuss with CoS or Cabinet Secretary so that we strengthen the fruitful engagement arrangement we have successfully built and such hurdles need not recur.

5. Subsequent Developments
On two different occasions, the Hon’ble Prime Minister informed the Chairperson that he will call for a meeting between them to discuss the issue. This has also been communicated in a letter the Cabinet Secretary wrote to MoIC Secretary on 15th May 2014, a day before the Parliament convened. The National Council received a copy of the letter. It reads,

As instructed by the Hon’ble Prime Minister, you are hereby directed to make a presentation on the RTI Bill, 2013 to the National Council at their convenience. An established procedure is necessary in future with regard to presentations of Bills and other important issues by Ministries/Agencies to the National Council. In this regard, Hon’ble Prime Minister will be discussing with the Hon’ble Chairperson of National Council for establishing a proper procedure mutually agreeable both to the National Council and Lhengye Zhungtshog.

The Cabinet Secretary does not understand that an established procedure both by law and convention already exists. Besides, the Hon’ble Prime Minister has thus far not called for a meeting to discuss the issue.

On 19th May, MoIC Secretary wrote to NC Chairperson requesting for a ‘suitable time and date at your convenience for the presentation’ of RTI Bill.

Two factors made presentation impossible by that time. First the Parliament session has already started. Besides the formal sittings, the National Council has to convene many internal meetings to discuss issues and Bills that are being discussed in the House. It also seeks meetings with government agencies and officials to seek further clarifications on Bills and issues that are being deliberated in the house. So there has been no time so far to accommodate a presentation.

Second, even if the NC found time to seek a presentation, it cannot hold consultations with relevant stakeholders. Consultations are integral part of law-making process. Without consultations, a meaningful deliberation is impossible.

6. Introduction of RTI Bill by Hon’ble Minister, MoIC
On 27th May 2014, the Hon’ble Minister for Information and Communications introduced the Bill in the National Council. NC members sought clarification or expressed views. The Hon’ble Minister answered questions and provided clarifications. The gist of discussions is as follows.

NC: To whom has the Bill been presented and consultations done?
Lyonpo: About 32 consultative meetings have been held by then and presentations made to officials of different agencies in ministries, dzongkhags and local governments.

NC’s observations: It is ironic that while issues such as the RTI Bill has been publicized widely by the Ministry for public consultations, public awareness and feedback, the National Council, which is the actual institution that is required to deliberate and adopt the Bill is denied a simple presentation.

NC: Who approved these presentations and consultations?
Lyonpo: No approval is necessary from the Prime Minister or Minister of MoIC. The concerned department did the presentations and consultations.

NC’s observation: NC sought presentation from the same department, whose officials were willing. While no approval was needed for presentations to others, approval was necessary for NC, one of the two highest law-making institutions!

NC: Why did MoIC agree to present to the Legislative Committee of National Assembly without Cabinet Secretary’s approval? Why was the approval needed to present to NC’s Foreign Relations Committee?
Lyonpo: There is an established government procedure which has to be followed. If need be, the procedure has to be discussed and amended.

NC’s observations: There is an established parliamentary procedure. The government procedure being referred to is the decision of CoS, while the parliamentary procedure emanates from the Constitution, NC Act and NC Rules of Procedure. Which should take precedence over the other? Obviously a decision of CoS meeting cannot supersede laws of the land.

NC: Cabinet Secretary quotes CoS’ decision to NC. It does not quote the same decision to the Prime Minister. He suggests that NC (legislature) must oblige to CoS’ decision whereas the Prime Minister (executive) need not. Therefore, it implies a hierarchical scenario of the executive being at the top followed by CoS and the NC below it. This goes against the fundamental idea of equality among three organs of the state and separation of powers.
Lyonpo: The ministry has followed the government procedure.

NC’s observation: same as above.

7. Issues of Concern
The NC Chairperson has raised this issue time and again to the Hon’ble Prime Minister. While he has communicated time and again that this will be addressed, the issue remains unresolved.

Except in one instance, the issue of NC and its Committees corresponding directly with government officials and agencies has not confronted any difficulty in the last five years. It is an established procedure, which now remains undermined with intent to add another layer of bureaucracy.

No decision of the executive and the bureaucracy can supersede the letter and spirit of our Constitution and laws. Article 20 Section 8 of the Constitution states that “Executive shall not issue any executive order, circular, rule or notification which is inconsistent with or shall have the effect of modifying, varying or superseding any provision of a law made by Parliament or a law in force”. Moreover, the Constitution and NC Act empowers NC to determine its own rules of procedure, and not in consultation with other institutions let alone the Cabinet Secretary. A newspaper story reported the Cabinet Secretary stating that NC has not consulted him while formulating our rules. As much as NC does not need to consult him, the CoS also does not need to consult NC to arrive at its decision. Receiving information and presentations from government agencies are important to enable NC conduct its review functions. In this case, the minutes of meeting of CoS has been deemed to be above the laws.

The insistence of the Cabinet Secretary and CoS that information and presentation sought from government agencies be routed through the former has obstructed NC’s legislative and review functions in more than one instance. The NC views this seriously in view of the following.

Section 178 of NC Act states that an offence of breach of privilege is committed ‘when any individual or authority disregards any of the privileges, either of the members or of the National Council.’ Section 179 states that Breach of privileges and contempt may include: h) Obstructing or molesting any person summoned for his attendance in the National Council or its Committee; k) Obstructing or molesting members of the National Council, officials or ancillary staff of the National Council in the execution of their parliamentary duties.

In the present circumstances, the Cabinet Secretary and decision of Committee of Secretaries have obstructed person summoned for attendance in NC’s Committee and also obstructed NC in the execution of its parliamentary duties. A breach of privilege has been committed.

8. The Way Forward
The National Council appreciates the intent of RTI Bill. In fact, discussions on RTI first originated in the National Council long before it was even discussed in the first National Assembly. The National Council would like to create the best political space within parliamentary procedure to enable an important government bill being passed. However, it cannot make exceptions to the laws and parliamentary procedure, and treat RTI in isolation of the main issue of NC’s privilege of corresponding directly with government officials and agencies being repeatedly undermined by the Cabinet Secretary and CoS. Unless the issue is resolved once and for all, the situation could recur with all government bills, policy matters and issues that NC would have to review.

To vote directly on the Bill without presentations made and consultations done is not only being irresponsible and meaningless, it will also undermine people’s faith in the legislative process. Besides, the possibility of the Bill being rejected by the NC both in its sitting and the joint-sitting is quite high. Rejecting an important government Bill may send messages that are not intended. Therefore, based on Section 18 and 19 of the Legislative Rules of Procedure 2011, the National Council recommends the National Assembly to withdraw the Bill.

National Council published this after withdrawing the RTI Bill