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2.1 The legal system of Bhutan
Before examining in depth the nationality issues affecting the Lhotshampa refugees, a brief account of the legal system in Bhutan will help to explain the approach being taken regarding interpretation of the legislation at hand. The legal traditions of Bhutan are rooted in the religious laws of Buddhism. It is said that 'religious laws are like a silken knot and pressed down with state laws as with the weight of a golden yoke'.[41] The primary concern of the state laws is with truth and honesty as contrasted with the English common law tradition of stare
decisis, res judicata and precedent.[42] At the same time, the legal system is developing in Bhutan, apparently along the lines of the separation of powers similar to that of the British legal system.[43] The nationality laws appear to be based on English or perhaps Indian statutory instruments, or may simply derive from the assistance or advice of Indian or English legal experts. In any event, two entirely different legal traditions must be reconciled. Nationality is a relatively new concept and certainly new to Bhutan, a monarchy emerging from the Middle Ages with traditional ideas of
subjecthood. At the same time, Bhutan is seeking its place in the new world order of nation-States by its attempt to define its citizenry. While the legal traditions of truth and honesty would assist in the practice of determining the application of the nationality laws to individual cases, it would appear that the methods of statutory interpretation developed in the English common law tradition may bring a greater measure of efficacy.
2.1.1 Nationality Issues
The provisions of the 1985 Citizenship Act were purportedly implemented during the 1988 census without reference to the 1958 Nationality Law and the 1977 Citizenship Act. It was assumed that the 1985 Citizenship Act wholly repealed the earlier legislation. However, nothing in the 1985 Citizenship Act supports this assumption. Section 1 of the 1985 Citizenship Act provides that in 'case of conflict between the provisions of this Act and the provisions of any previous laws, rules and regulations relating to citizenship, the provisions of this Act shall prevail.' Contrast this with the language of the operative clause in the 1958 Nationality Law which repeals all previous laws. Section 9 reads 'This law supersedes all laws, rules and regulations relating to the acquisition and forfeiture of nationality from the day of its commencement.' The 1977 Bhutanese Citizenship Act also prevails in case of conflict between its provisions and those of the 1958 Nationality Law.[44] So in practice the relationship between the three sets of nationality laws has not been at all clear. The following questions may help to clarify the relationship among the three sets of legislation as well as the relevance of the nationality laws of Nepal and India.
First, is the person a national of Bhutan? If the person is a national of Bhutan under the 1958, Nationality Law, the 1977 Citizenship Act or the 1985 Citizenship Act, did he or she lose such nationality pursuant to any, of these laws? Is the 1985 Citizenship Act or some of its provisions invalid under Bhutanese domestic law or international law, practice, custom or convention? If the person is not a national of Bhutan, is he or she a national either of India or of Nepal? Or is he or she a dual national of Bhutan and either India or Nepal? If the person is not a national of Bhutan, India or Nepal, then is he or she a stateless person under the Stateless Persons Conventions, or generally as that concept is understood in international law? In addition, to such technical issues as arise from municipal nationality laws, the situation of women and children also calls for separate examination, due account being taken of CEDW79 and CRC89.
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