Constitutionalism in the Land of the Peaceful Thunder Dragon: the Kingdom of Bhutan's Marbury Moment

• Publication year: 2022
• Citation: Vol. 50 No. 2

Constitutionalism in the Land of the Peaceful Thunder Dragon: The Kingdom of Bhutan's Marbury Moment

Markus G. Puder, Ph.D.^* & Ngawang Choden^**

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TABLE OF CONTENTS

I. INTRODUCTION: A PERSONAL EXPERIENCE...........................................359

II. PRECIPITATORS OF CONSTITUTIONAL DISPUTES: UNIQUE NARRATIVE AND POLITICAL ACTORS...............................................................362

III. CONSTITUTIONAL REVIEW THROUGH THE JUDICIAL DEPARTMENT: POWER BASE AND ORGANIZATION OF CONSTITUTIONAL JURISDICTION...............................................................................364

A. The Power Base....................................................................366

i. Constitutional Silence and Sovereign Will of the People in the United States.............................................................366
ii. The People's Constitution in Bhutan...............................367

B. The Organization of Constitutional Jurisdiction....................368

i. Court Structure in Bhutan..............................................368
ii. Diffuse and Concentrated Features of the Supreme Court of Bhutan...........................................................................370

IV. GATEKEEPER DOCTRINES: RULES OF STANDING AND THE POLITICAL QUESTION DOCTRINE...................................................................374

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A. Convergence of the Standing and Political Question Doctrines in the United States...............................................................375
B. Operations and Variants of Standing Doctrines in Bhutan.....376

i. Opposition Party Standing..............................................376
ii. Taxpayer Standing..........................................................379
iii. Public Interest Standing..................................................380

V. JUDICIAL MANEUVERS: DECISIONAL SEQUENCING, STYLES OF REASONING AND CANONS OF INTERPRETATION............................381

VI. LEGACIES AND PERSPECTIVES............................................................385

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I. INTRODUCTION: A PERSONAL EXPERIENCE

In his novel Lost Horizon, the British author James Hilton imagines Shangri-La, a fictional place of Utopian perfection located behind the Himalayas where the people live in peace and harmony and where the wisdom of human kind reigns supreme.¹ The secluded Kingdom of Bhutan, nestled high in the eastern Himalayas, may very well be that elusive Shangri-La, as the Bhutanese have managed to preserve their unique spiritual and cultural heritage and live sustainably in harmony with the surrounding natural world.²

Unlike the tourism and travel sectors, which constantly search for new and exotic destinations, the legal comparative academy residing outside Bhutan has been largely silent about the country in general and the significance of Bhutanese constitutionalism for the country's success story in particular. This is not due to impenetrable language barriers since the laws of Bhutan are readily accessible in English. While Dzongkha, the language spoken in Bhutan's massive fortresses, is considered preferable for drafting purposes,³ the Constitution of Bhutan declares both the Dzongkha and English texts as equally authoritative.⁴ English is ubiquitous, not only among legal professionals, but also the population at large.

When traveling through the Kingdom of Bhutan in the spring of 2019, we experienced unparalleled hospitality and access.⁵ In addition to presenting a colloquium to students and faculty at the Jigme Singye Wangchuck School of Law—Bhutan's first and only law school,⁶ which was established in 2015 by Her Ryal Highness Princess Sonam Dechan Wangchuck in honor of Bhutan's Great Fourth King Jigme Singye Wangchuck—we had the

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opportunity to spend time with constitutional players and witness constitutional practices in action. It was fascinating to learn about the ingredients of a successful constitution. Bhutan's Constitution has selectively borrowed from different external models, but it continues to be deeply rooted in the holistic wisdom of Buddhist spirituality.⁷

Our discussions regarding courts and constitutions with judicial and political members ultimately turned to what many American lawyers will inevitably be tempted to ask their interlocutors abroad—whether and, if so, how the host country experienced its own Marbury v. Madison⁸ moment. As is well known, William Marbury, an uninstalled appointee of the outgoing President John Adams, sued James Madison, Secretary of State in the new Thomas Jefferson Administration, to procure his commission of justice of the peace.⁹ In an opinion delivered by Chief Justice John Marshall, the U.S. Supreme Court decided that Madison should have surrendered the commission to Marbury.¹⁰ However, the U.S. Supreme Court then ruled that the section of the Judiciary Act of 1789, which Marshall read to grant the high court the original power to issue writs of mandamus,¹¹ was unconstitutional because it was not covered by what he considered the Supreme Court's reservoir of powers under the U.S. Constitution.¹² Marbury, which tells a story replete with partisan intrigues and political posturing, has come alive for generations of lawyers all over the world as they discuss Chief Justice Marshall's epic maneuvers for confronting Jefferson, his disputed rationales for recognizing the power of judicial review, and his skillful balancing of institutional powers.¹³ According to literature, however, the full realization of Marbury and its popularity beyond America's borders in countries that have created or revised their constitutions is a product of the twentieth century.¹⁴

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All over the world, Marbury has come to be known as a central authority in the field of constitutionalism.¹⁵

The Bhutanese elaborations on the themes raised by Marbury are bundled in litigation less dramatically dubbed Opposition Party v. The Government of Bhutan.¹⁶ The case was brought by the Representative of the Opposition Party against the Government of Bhutan to quash the rationalization and expansion of the extant tax structure that, said the complaint, was undertaken by mere executive fiat and without proper parliamentary legislation.¹⁷ In a landmark decision, the Constitutional Bench of the High Court held for the petitioner¹⁸ and the Supreme Court of Bhutan affirmed.¹⁹ Accordingly, the Government of Bhutan's use of purely administrative short cuts violated the Bhutanese Constitution, which prohibits taxation unless it is imposed or altered by law.²⁰ Therefore, the Government of Bhutan had to follow the lengthier process through Bhutan's Parliament.

Our article discusses the case within the larger context of constitutionalism, which, for our purposes, shall be broadly understood as "the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy."²¹ More specifically, constitutionalism is a doctrine that is designed to prevent the arbitrary exercise of government power.²² According to the political theories of John Locke and through the prism of the American framers, constitutionalism reflects the dual proposition that government can and should be restrained in the scope and exercise of its powers and that the authority of government hinges on the observance of these limits.²³

The remainder of the article will analyze the Bhutanese Marbury against the American original and the questions raised by Marbury. Are these

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types of constitutional disputes typically precipitated when a unique story and particular actors combine? Where does the power of constitutional review repose? How is constitutional jurisdiction organized? What role do prudential gatekeeper doctrines that patrol access to the courts play? How do judicial canons of interpretation act to limit judicial activism? What are the trajectories for countries wishing to entrench the constitutional rule of law?

II. PRECIPITATORS OF CONSTITUTIONAL DISPUTES: UNIQUE NARRATIVE AND POLITICAL ACTORS

The stories behind both cases boast unique circumstances and actors. Marbury features a political kabuki theatre of events and protagonists that has fascinated generations of readers. The case arose in the wake of the election of 1800, which had featured a fierce contest between John Adams, the Federalist incumbent, and Thomas Jefferson, the Democratic-Republican challenger.²⁴ Thomas Jefferson prevailed.²⁵ But John Adams embarked on a program to execute a plan to perpetuate power by using his remaining time in office, which, at the time, lasted until March 4, 1801, to make the judiciary a last Federalist bastion.²⁶ Fresh legislation creating hundreds of new judgeships had conveniently been passed by the lame duck Federalist Congress—the Judiciary Act of 1801 and the Justice of the Peace Act of 1801.²⁷ Just before the Federalist hold in the political branches ended, John Adams appointed, and the Senate confirmed several dozen "midnight judges."²⁸ But time ran out before a certain number of the commissions, which carried the President's signature and the Senate's seal, could have been delivered by John Marshall, the outgoing Secretary of State.²⁹ One of those commissions never delivered was intended for William Marbury, a veteran of the Revolutionary War from Maryland and a superbly networked Federalist of great influence and financial acumen.³⁰ He had been slated to serve as Justice of the Peace for the District of Columbia—a judgeship typically overseeing cases that involve small claims, marriages, adoptions, and divorces.³¹ After assuming the presidency, Thomas Jefferson, however, ordered his Secretary of State, James Madison, a founding father from Virginia and major player in Thomas Jefferson's cabinet, not to deliver the

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commissions.³² Interestingly, if the Supreme Court, with John Marshall now at the helm, had ruled for William Marbury, James Madison would have been...