v6n2.book Page 131 Monday, December 16, 2002 11:13 PM

Simple Justice Judicial Philosophy in the Kingdom of Elena A. Baylis Donald J. Munro

hutan is a tiny mountain kingdom intensiÕed its natural geographic remoteness, nestled in the Himalaya of central resisting the trends of modernization and BAsia, just south of Tibet, north of globalization that have been bringing the rest India, and east of Nepal. Never colonized or of the world closer together. Indeed, Bhutan conquered, the nation of Bhutan has existed followed an extreme policy of near-absolute in its present incarnation since the mid- isolation until 1957, when China’s invasion of seventeenth century, and its cultural history Tibet made this course seem more risky than stretches back uninterrupted for centuries involvement. Since then, the Bhutanese gov- before that. For hundreds of years, Bhu- ernment (and particularly the current king, tanese society has been structured around an Jigme Singye Wangchuck) has attempted to ancient school of Vajrayana , and draw Bhutan gradually into the protective the religion still permeates daily life in the structures of the world community, while still country. This daily life is a simple one. Most maintaining the cultural independence it Bhutanese are farmers, and the economy is prizes. But the nearly impassible peaks that largely based on subsistence agriculture. It is protected the Bhutanese from the military an isolated, undeveloped, and beautiful place. invaders of years gone by may prove to be a Traveling through the central foothills of the less eÖective barrier against the modern country, small villages and towns lie scat- invaders of technology, commercialism and tered like river rocks over the hillsides, and Western pop culture. Bhutan is changing, the high Himalayan mountains loom up to and changing quickly. The visual signs of this the north, dominating the skyscape. invasion are beginning to appear in the larger Until recently, Bhutan maintained a towns: satellite dishes and internet cafes studied distance from its neighbors that amidst the traditional homes and markets,

Elena Baylis is on the faculty of the University of Alabama School of and is currently visiting at Mekelle University in northern Ethiopia. Donald Munro is an associate with Shea Gardner in Washington, D.C.

131 v6n2.book Page 132 Monday, December 16, 2002 11:13 PM

Elena A. Baylis Donald J. Munro

blue jeans and leather jackets in place of the problems of Bhutanese society, that traditional dress. are in most instances superÔuous. As Bhutan struggles to join the modern Or so Judge Wangdi, the magistrate of the world while still preserving its heritage and district court in Bumthang, would have us traditions, the tensions and contradictions believe. His views of the nature of traditional inherent in that process are playing out in the Bhutanese law – in particular his theory of legal Õeld as in others, with fascinating and “simple justice” – and his concerns about the sometimes awkward results. The Bhutanese ability of this ancient concept to withstand legal system is perhaps best characterized by Bhutan’s ongoing eÖorts to integrate itself into one revealing statistic: for its roughly 700,000 the international legal system, provide an citizens, Bhutan has less than 70 lawyers. intriguing example of the thinking of legal

TIBET N BHUTAN Thimphu Paro Jakar

INDIA ~ 200 miles Copyright 2003 The Green Bag, Inc. KINGDOM OF BHUTAN Upon hearing these Õgures, we were at Õrst practitioners in countries facing a choice tempted to assume that the people of Bhutan between historical legal traditions and modern do not rely on the law to structure their lives global practices. or settle their disputes (or at least that they are not especially litigious). But this view is Meeting Judge Wangdi based in the American understanding that law needs lawyers. In fact, the paucity of law- We met Judge Wangdi during a two-week visit yers does not seem to have aÖected the to Bhutan in September 2001. Traveling with Bhutanese interest in litigation (formal and two other American lawyers, we arrived at informal) or ability to settle disputes through Bhutan’s sole airport in the western city of the courts. Rather, the legal traditions in Paro on one of the two airplanes of the Bhu- Bhutan are so simple, so well-known and tanese national airline. We were immediately understood, and so appropriate to the impressed by the beauty and ruggedness of the

132 6 G r e e n B a g 2 d 1 3 1 v6n2.book Page 133 Monday, December 16, 2002 11:13 PM

Simple Justice

land. Vast, dense forests and steep, rocky hill- church and state in Bhutan comprises the sides welled up around us on every side from width of an interior dzong wall: monks and the runway on the Ôoor of the Paro valley. government oÓcials work side by side, occu- Although we had expected to Ôy in close over pying separate rooms in the same building but the mountaintops, in fact we had to Ôy literally never overlapping in function or in physical through the mountain passes to descend into oÓce space. this almost vertical landscape. Due to the Bhutanese government’s con- We were met at the airport by our guide, cern for the disruptive eÖect of tourists on the Samdrup, and driver, Tenzing, whose presence sacred function of their religious sites, tourists on our journey was mandated by the tourism are not ordinarily permitted to enter monas- regulations of the Bhutanese government. teries and temples, including the actively func- (One cannot travel in Bhutan except through a tioning monasteries in dzongs. There are, government-sanctioned tour agency. This is however, numerous exceptions to this general just one expression of the government’s rule, and Samdrup had arranged for us to visit concern for maintaining its cultural integrity the on the basis of our interest in generally, and, more speciÕcally, for avoiding learning about Buddhism. While looking the plight of Nepal, overwhelmed by hordes of around the dzong, we noticed a sign for the well-meaning Westerners.) After a quick stop district court and asked Samdrup if he could in the capital city of Thimphu, we set oÖ the somehow arrange for us to peek in. A few next day for the central district, Bumthang, minutes later we were being bustled into the considered the cultural heartland of the coun- courtroom by the judge’s law clerk, who had try for its role as the location of many of the his- secured us an invitation to talk with the judge torical developments in Bhutanese Buddhism. as well. Jakar, the small town that is the capital of As we waited to speak with the judge, the Bumthang, is only about 300 kilometers from design and décor of the courtroom gave us an Thimphu, but unfortunately the roads in immediate visual introduction to the Bhutan are rather less impressive than the inÔuence of Vajrayana Buddhism. Consider- scenery: it was a long and bumpy two day trip. ably smaller than either the typical American We met Judge Wangdi at his chambers in courtroom or the temple facilities of the the Jakar dzong. Bhutanese dzongs are stone dzong, the courtroom was brightly lit by sev- fortresses originally built in the mid-17th cen- eral windows and dominated by a few simple tury for three purposes: defense, government items, some purely functional, others bearing administration, and religious devotion. In this symbolic religious signiÕcance. At the front, mountainous landscape that dwarfs all ordi- the judge’s bench stood on a wide raised plat- nary manmade structures, the dzongs never- form, much like the ceremonial platform used theless dominate a hillside in each district, by the monks in the adjacent temple. Hanging bright golden roofs shining in the sun, turrets overhead were three Buddhist ceremonial and Ôagstone courtyards, battlements and masks: a mask representing good on one side, watchtowers overlooking the valley below. one symbolizing evil on the other, and a mask Although the defensive purpose of the dzong representing the judge in the center. In the has long since become obsolete, each modern corner were a single Õling cabinet and an administrative district maintains a dzong as oddly incongruous Xerox copier/fax machine. the home of both the regional government There were no seats or benches for the public administrative oÓces and a monastery. On or the litigants, although the litigants were the surface, therefore, the separation of provided with small, low tables below the

Green Bag • Winter 2003 133 v6n2.book Page 134 Monday, December 16, 2002 11:13 PM

Elena A. Baylis Donald J. Munro

judge’s bench. Anyone there to observe the and the judge themselves. proceedings would have to stand. The clerk soon beckoned us into the judge’s The Structure of the Legal adjoining chambers, which were no more elab- System the Role of the orate than his courtroom. Aside from his desk District Court and a few telephones, there were only a few chairs and a bench, to which the judge directed Introducing himself, Judge Wangdi, who is a us. Perhaps the most notable item in the room man of about 50, told us that he had been on was the sword that the judge wore on a belt at the bench for many years. Since there is no law his waist. (All senior government oÓcials wear school in Bhutan, he had studied law in India swords, we were told, although we were not and then returned to Bhutan to practice. He told whether they ever use them for more than was appointed to the bench directly by the ceremonial purposes. Judge Wangdi no doubt King, as are all judges in Bhutan, both trial and found it easy to keep order in his courtroom, at appellate. (The King still holds substantial least.) personal political power, of which the author- Our interview with Judge Wangdi con- ity to appoint judges is but one example. sisted mostly of questions from us about the While the King has been steadily devolving Bhutanese legal system. Neither the judge nor power from his own person to other branches his clerk had many questions about the sys- of the federal government, this process is tem in the United States, having heard purely voluntary on his part, and there is as yet enough about it through other sources to be no institutional mechanism for establishing familiar with its substance and procedure. separation of powers or checks and balances.) Our guide, meanwhile, quaked visibly in the The clerk had also carried out his legal training background, clearly nervous to be in the pres- in India and would complete a mandatory ence of the judge. All four members of our four-year apprenticeship with the judge before group had clerked for judges in the United being eligible to start his own legal practice. States, and it occurred to us later on that we Such practical apprenticeships serve the pur- were perhaps less awed than we should have pose of providing solid training in Bhutanese been under the circumstances. As it was, we law since classroom instruction is unavailable. asked our questions unabashedly and found The Court is nominally the judge to be thorough and thoughtful in the court of Õrst instance for the district, his responses. although most disputes go through local Both the judge and the clerk, like most mediation by the village headmaster before well-educated Bhutanese, were Ôuent in being Õled in the district court. With only one English. English is the medium of instruction judge and clerk, plus a few staÖ members, the in the public schools, and since there is only court handles about 2000 cases per year, one university in Bhutan (and that of relatively mostly property disputes and family issues, recent origin), most students who go on to but some criminal cases and the occasional higher education after high school study in larger commercial dispute as well. A case India, or if not there, in England or the United begins when the plaintiÖ Õles his complaint, States. Therefore, our discussion with Judge which he usually does himself, without the aid Wangdi was carried out entirely in English, of an attorney. The court actively encourages except for a few questions in , the settlement (the sword probably helps on this oÓcial language, directed at our guide, and a score too), but if this cannot be accomplished, few exchanges in Dzongkha between the clerk the judge will eventually hold a hearing.

134 6 G r e e n B a g 2 d 1 3 1 v6n2.book Page 135 Monday, December 16, 2002 11:13 PM

Simple Justice

Usually, however, a settlement is achieved, and about trials, were they open to the public? Yes, only a few cases go to trial. yes, that was why the courtroom was there. Bhutan maintains a civil law system based on a 1957 legal code whose historical anteced- The Concept of Simple Justice ents date back to the mid-17th century and whose fundamental principles are ultimately Eventually, our questions spurred Judge based in Drukpa Kagyu, the Bhutanese school Wangdi to launch into an extended explana- of Vajrayana Buddhism. While there is a for- tion of the fundamental philosophy of the mal and physical separation of church and Bhutanese legal system. According to Judge state in Bhutan, there is not in fact a separa- Wangdi, the purpose of the Bhutanese legal tion between Buddhist principles and legal system is achieving simple justice for the people ones, Judge Wangdi informed us. So just as through the implementation of the Buddhist monks, while not serving any oÓcial govern- principles embodied in the law. These princi- mental function, are not stopped at the door ples, and the law itself, are not only universally of the dzong, so Buddhist principles, while known and accepted, but also universally not serving any oÓcial role in the law, are not appropriate to the society that is itself based on stopped at the courtroom door. Drukpa these same principles. Rather than being an Kagyu preaches a deep respect for all forms of artiÕcial structure which must be learned and life and promises karmic punishment for evil- imposed on society by specialists, the law is doers, and these values permeate every aspect itself an organic expression of social (Bud- of life, including the government and legal sys- dhist) values, and the court an expression of the tem. Accordingly, the content of the law, as social will. This vision of the legal ideal as eÖec- expressed in the country’s central legal code, is tive implementation of a very speciÕc set of well known and understood, not only by the moral values has vital implications for the role judge but by the people as well. (It is interest- of the courts in deciding cases, for the structure ing to note, in light of these assertions, that of the legal system, and for the judicial system’s there was no copy of the code in chambers or social role outside the context of any particular the courtroom. Either the content of the code case. must be in fact so well known as to make a Functionally, this vision directs the court to written copy superÔuous, or the principles a fact-Õnding role rather than an interpretative applied by the court must not require refer- one. Because both the legal code and the moral ence to it.) precepts that underlie it embody basic Bud- We asked many questions about proce- dhist principles, the substance of the law dure, and the judge answered patiently. Did should be familiar to everyone, from the most the parties have the right to a ? Yes, he sophisticated Thimpu businessman to the assured us, any party could hire a lawyer to simplest yak herder. Accordingly, when there speak for them in court, and criminal defen- is a dispute, the judge’s role is not to determine dants were entitled to have a lawyer paid for or interpret the law, but solely to uncover the by the state. Most people, however, did not truth of what had happened between the par- avail themselves of these rights. The court’s ties. Discovery of the factual truth should procedures were not complex and it was easy automatically yield the necessary legal result. for the litigants to speak for themselves. What The judge’s sole focus, therefore, should about a right to appeal? Yes again, the party always be this search for factual truth, uncom- who lost in his courtroom could appeal to the plicated by notions of legal ambiguity. Supreme Court and then to the King. What Furthermore, because the legal code

Green Bag • Winter 2003 135 v6n2.book Page 136 Monday, December 16, 2002 11:13 PM

Elena A. Baylis Donald J. Munro

expresses the people’s fundamental ethical heart of the case and discover the truth, principles, the wrongdoer in each case should avoiding messy technicalities and diÓcult pro- be aware of his own guilt, and will therefore cedural issues. Matters of procedural fairness often be compelled by his conscience to admit are resolved by the judge on a case-by-case the wrong. This happens frequently, Judge basis, but in any event are clearly secondary to Wangdi told us, in criminal cases as well as the quest for factual truth. Indeed, the guiding civil. The judge took great pains to empha- principle for resolving procedural issues size that there were few hardened criminals in seemed to be a matter of determining which Bhutan – of violence are especially outcome would best serve this search. Proce- rare – and that most could be counted on to dural errors, if there were any, could be cor- confess their crimes if caught. Here, as in rected through the litigants’ right of appeal to other areas, the motivation stems not just the Supreme Court and then to the King. In from an abstract sense of right and wrong but this regard, procedural law, like the substantive from a deeply rooted notion of Buddhist jus- law, is designed to be as simple as possible, fully tice: those who do evil confess because of the able to function without the need for any risk that denying the will compound involvement by lawyers. their punishment in the next life. (The judge Furthermore, Judge Wangdi asserted, the did not go so far as to suggest, however, that simplicity of the Bhutanese system is suited to those who deny guilt are necessarily inno- the simplicity of Bhutanese society and its legal cent.) Apart from demonstrating the strength issues. As a largely agrarian society, Bhutan and pervasiveness of the Buddhist ideal of tends to experience relatively simple legal prob- justice, this tendency on the part of criminal lems: property disputes, , perhaps the defendants and other litigants to concede occasional theft or bribery. There is, of course, when in the wrong is the principal basis for something of a chicken-or-the-egg question the resolution of so many cases through set- posed by this fact. Whether the concept of sim- tlements without any need for a judicial hear- ple justice makes these disputes seem uncom- ing. plicated, or whether the nature of the disputes Structurally, Judge Wangdi’s vision of sim- has driven the development of the legal philos- ple justice means that the Bhutanese system ophy itself, is an unanswered question. In any focuses on substantive justice rather than pro- event, the relatively limited and uncomplicated cedural fairness, and also that the system set of disputes that come before the court is one depends on procedural simplicity to achieve its of the keys to the workability of Judge Wangdi’s aims. In explaining his concept of simple jus- legal philosophy. There is, for example, cur- tice, Judge Wangdi contrasted the Bhutanese rently no litigation for political and social ends legal system with the American. The of the sort that would challenge the society’s Bhutanese judicial system lacks the basic legal principles, but rather, solely private sophistication, size, and scope of its American dispute resolution and criminal law. As we counterpart, a fact as to which the judge exhib- learned later, the appearance of new and more ited some pride. The law in Bhutan iss capable complicated legal problems in Bhutan is a of achieving simple and direct justice, he source of great concern to those who believe in believed, in some part because it has not been simple justice. cluttered with and burdened by the compli- Judging by our guide’s behavior and by the cated procedures and immense body of prece- small number of district courts in the country, dent that characterizes the American common we gathered that Judge Wangdi was in a posi- law model. Rather, a judge is free to get to the tion of no small power and inÔuence. It

136 6 G r e e n B a g 2 d 1 3 1 v6n2.book Page 137 Monday, December 16, 2002 11:13 PM

Simple Justice

seemed that he had given a lot of thought to inÔuence of the common religion. Indeed, it his role and how he wished to fulÕll it, and his seems unlikely that “simple justice” could work theory of simple justice seemed to be not an as a guiding principle for legal decision-making abstract ideal concocted for the moment but a if Bhutan did not have such a homogenous cul- guiding principle for his decision-making. ture and such a stable, widely-shared system of Buddhist philosophy required that a judge fundamental beliefs. (One question that we are provide justice to the people, and so “simple not able to answer is how the minority groups justice” was not merely a descriptive, but an in Bhutan view the judicial system. There is a imperative: a test of whether he was properly substantial minority population of ethnic performing his role. Nepalese in southern Bhutan who have for In later discussions with the judge’s clerk, some number of years been in conÔict with the we discovered that his view of his work was Bhutanese government over a variety of cul- less clear-cut than the judge’s: he admitted of tural and political issues. They may well view the possibility, and indeed of the frequent the Bhutanese concept of “simple justice” as occurrence, of diÓcult cases, cases in which rather less just to them than to the indigenous they simply could not know what had really population.) happened or who among the parties was in the Second, simple justice means that judges right or wrong. Whether the clerk’s views wield enormous power. Free from the sprang from greater candor on his part, greater constraints of legal technicalities and rules of experience on the part of the judge to whom procedure, and operating with an absolute the cases may have by now become simple and certainty of right and wrong, Judge Wangdi well-determined after seeing the same issues and his colleagues can dispense justice as they arise again and again, or simply a divergence see Õt, with few institutional mechanisms of between a judge educated thirty years ago and limitation apart from self-imposed restraint. a clerk who was schooled in the modernity of While a system granting judges braod present-day India, we do not know. discretion in procedural matters is perhaps Nevertheless, it was apparent that Judge unremarkable to lawyers coming from a civil Wangdi’s basic philosophy is shared by others law tradition, to us it seemed to place enor- in Bhutan, at least to some extent. Those that mous faith in the competence and good-will of we spoke to (mostly non-lawyers) evinced sim- the members of the Bhutanese judiciary. ilar views of the nature of the law, especially the Especially because they are so few in number, idea that its roots are found in well-known and lawyers are something of an elite caste in commonly understood Buddhist principles. If Bhutan. The special status of Bhutanese law- this is so, then “simple justice” has several yers and judges and the absence of procedural signiÕcant consequences for Bhutanese soci- checks on their power might raise concerns ety, as well as for the internal workings of the about their ability to understand and deal with courts. the issues of the common litigant. In Bhutan, First, it seems that the approach used by however, this potential problem is mitigated Bhutanese courts has done a remarkable job of somewhat by the other factors that weigh in engendering wide-spread respect for and satis- favor of simple justice: the homogeneity of faction with the law and the legal system Bhutanese society and the almost universally- among the general population. This respect shared set of fundamental beliefs. Simple seems to be based on the courts’ faithful imple- justice is, in this respect, the great equalizer – mentation of a common understanding of right because of their shared beliefs, the judge and and wrong, derived from the pervasive the litigants are operating on common ground.

Green Bag • Winter 2003 137 v6n2.book Page 138 Monday, December 16, 2002 11:13 PM

Elena A. Baylis Donald J. Munro

Finally, Judge Wangdi’s philosophy operates of Indian consumer goods. But it does not to maintain the existing social and political have much in the way of industry and certainly structure. By relying on ancient principles of little to speak of. The right and wrong, with an emphasis on reducing judge and his clerk both took the view that the disputes to one of several basic categories and Bhutanese system did not really need reform – on reconciliation and settlement over judg- it worked well as it was. ment, the Bhutanese legal system reinforces This whole colloquy had been sparked by a and validates the old ways of doing things, the question from us about what aspects of the old patterns of property ownership, the old law they thought should be improved or hierarchies of social status and gender. Simple changed. It was an ordinary enough question justice, as a legal principle, does not look kindly from our point of view. We, as Americans, are on technological or social innovation. always seeking the new and improved version, looking for a problem to be solved, for some- The System in Transition: one or something to blame for a miscarriage of Disjunction in Legal Reform justice. Not so, the Bhutanese. The judge and his clerk hastened to assure us that far from It is perhaps not surprising, therefore, that needing reform, it was, if anything, reform both Judge Wangdi and his clerk were trou- that was the legal system’s problem. In their bled by some recent legal developments that, view, simple justice did the job for just about in their view, pose a subtle threat to Bhutanese any problem that might arise. The traditional justice. The federal government in Thimphu law of Bhutan was both substantively and pro- has been undertaking substantial legal cedurally adequate to the challenges of legal reforms, adding new sections to the Bhutanese dispute resolution in their country. code that conform the legal system to interna- This notion that the government’s legal tional standards. By undertaking these reform eÖorts would cause more diÓculties reforms, the government hopes to foster fur- than they solved was grounded in several ther integration into the world community. speciÕc concerns. So far as Judge Wangdi and Bhutan is, for example, seeking membership his clerk were concerned, the ongoing legal in the World Trade Organization. Thus, in reforms merely served to complicate an ele- the month before we arrived, Bhutan imple- gantly simple system. Reforms undertaken to mented a new intellectual property code, advance Bhutanese law to a 21st century model which is based on the codes of the large indus- add procedural and substantive Ôourishes that trial nations. Likewise, a few months earlier, do not serve any purpose for the law’s domes- the Õrst bankruptcy code had been intro- tic constituency. Modernizing the legal code duced. The government is studying additional for modernity’s sake, the judge suggested, is a reforms along similar lines. (Can ERISA leg- waste of time and resources. islation be far behind?) While these reforms But beyond the new codes’ failure to serve will no doubt help to satisfy international legal any positive function, the new actually requirements, the changes have little to do impede the Bhutanese legal system’s ability to with domestic Bhutanese legal issues. Bhutan dispense the simple justice in which the judge is largely an agricultural society, based on yak took such pride. Judge Wangdi feared that as and cow herding, rice and buckwheat farming, the law grew more complex, it would grow with a moderate dose of tourism mixed in. It more chaotic as well, both procedurally and does export some hydroelectric power and substantively. As a lifelong devotee of the law, cement to India, and it takes in a fair number he seemed almost oÖended by this assault on

138 6 G r e e n B a g 2 d 1 3 1