The Judiciary of the Kingdom of

THE JUDICIARY OF THE KINGDOM OF BHUTAN

HISTORICAL BACKGROUND - The Bhutanese legal system has a long traditional background, primarily based on Buddhist natural law and Zhabdrung Ngawang Namgyal’s Code from early 17th century. The first comprehensive codified laws known as the Thrimzhung Chhenmo or the Supreme Law was enacted by the National Assembly during the Third , His Majesty Jigme Dorji Wangchuck’s reign.

MISSION, POLICIES & OBJECTIVES - The Judiciary aims to safeguard, uphold, and administer Justice fairly and independently without fear, favour, or undue delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access to Justice.

INDEPENDENCE - Among others, the independence of the Judiciary is manifested through:

(a) Separation of judicial power from the apex to the lowest court; (b) Collective independence (the concept of non-interference, jurisdictional monopoly, transfer jurisdiction, control over judicial administration); (c) Institutional and financial independence; (d) Personnel independence (qualification, selection and training, conditions of services, suspension, removal and disciplinary measures. Security of tenure and protection from arbitrary removal from office); (e) Decentralization of all personnel administration and financial operations to respective courts; and (f) Distinctive court building, distinct and court seal.

JURISDICTION

The The judicial authority of Bhutan is vested in the Royal Courts of Justice comprising the Supreme Court, the High Court, the and the Court. Other courts and tribunals will be established from time to time by the Druk Gyalpo on the recommendation of the National Judicial Commission. Additional Benches are established in some Dzongkhags and with higher caseload.

Judicial Review Te the power to review any official act that is contrary to the provisions of the Constitution or any other law of the land is with the Supreme Court and the High Court.

Appellate Authority The Supreme Court is the highest appellate authority to review, reverse and overrule any order, decision or judgment of any court or tribunal. The Supreme Court and the High Court have the power to issue, suo moto or when moved by an appropriate proceeding for the enforcement of rights conferred by the Constitution, directions, orders or writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.

JUSTICES, JUDGES AND OFFICERS

Justices of the Supreme Court The Supreme Court comprises of the Chief Justice of Bhutan and four other justices. The Chief Justice of Bhutan is from among justices of the Supreme Court or from among eminent jurists. The justices are from among justices of the High Court or from among eminent jurists. The Chief Justice and the justices are appointed by His Majesty the Druk Gyalpo, by warrant under His hand and seal, in consultation with the National Judicial Commission. The term of office for the Chief Justice of Bhutan is five years or until attaining the age of sixty-five years, whichever is earlier and for the justices of the Supreme Court is ten years or until attaining the age of sixty- five years, whichever is earlier.

Justices of the High Court The High Court comprises of a Chief Justice and eight other justices. The justices of the High Court are appointed from among judges of the Dzongkhag or from among eminent jurists by His Majesty, by warrant under His hand and seal, on the recommendation of the National Judicial Commission. The term of office for the Chief Justice and the justices of the High Court is ten years or until attaining the age of sixty years, whichever is earlier.

Judges of the Dzongkhag Court A Dzongkhag Court comprises of one judge or more depending upon the number of Benches. The judges of the Dzongkhag Courts are appointed by His Majesty by warrant under His hand and seal on the recommendation of the Chief Justice of Bhutan as per the nomination by the Royal Judicial Service Council from among persons with Bachelors of Law degree and Post Graduate Diploma in National Law who served as a judge of a or as Drangpon Rabjam.

Judges of the Dungkhag Court A Dungkhag Court comprises of one judge or more depending upon the number of Benches. The judges of the Dungkhag courts are appointed by the Chief Justice of Bhutan from among persons with Bachelors of Law degree and Post Graduate Diploma in National Law, who served as a Registrar of a court for four or more years in succession or seven or more years as an advocate in succession.

Registrars and Bench Clerks Each Bench has a number of bench clerks and is headed by a Registrar. The Registrar is a person with Bachelors of law degree and Post Graduate Diploma in National Law. The Bench Clerks are trained officers from the Royal Institute of Management.

>> Courtroom of the larger bench, High Court

JUDICIAL PROCESS

Trial System The Bhutanese legal system is based on the adversarial principle (Bardo Thoedrel or the judgement of the dead – Garun Puran) of procedure with some elements of the inquisitorial system. The court takes no sides and judge act as an umpire to the case. The onus propandi or the burden to prove beyond reasonable doubt lies upon the prosecutor in a criminal case. In civil cases, the plaintiff has to prove the case by a fair preponderance of credible evidence.

Friendly Court Cases are adjudicated expeditiously, fairly and inexpensively through established judicial processes:

(a) Where to seek justice? The distinctive site of the court building is a visual landmark depicting the house of justice. (b) How accessible is the court? A complaint can be filed by either an aggrieved person or family member. (c) Who to contact? One stop window of the Registry of a court is the first contact point. Every court has a Registrar specifically dealing with complaints and registration of cases. (d) When to contact? The parties can contact the Registrar of the court during office hours. (e) What is the process of hearing? Once the case is instituted, hearing is set in motion uninterruptedly.

Due Process and Fair Trial All persons are equal before the law and are entitled to a fair trial and public hearing by an independent court. The stages of the judicial process encompass registration of a complaint in the Registry => Production before Judge => Show Cause => Miscellaneous Hearing => Preliminary Hearing =>Opening Statement => Rebuttals => Evidence =>Witnesses=> Independent Testimony =>Exhibit => Cross Examinations =>Judicial Investigation => Closing Statement => Judgment. The process enhanced submission of facts and issues methodologically, systematically and exhaustively. This process ensures discipline in arguments, exhaustiveness of hearing, time of reflection, documentary records and serves as a self-checklist. It eliminates repetitive arguments, psychological intimidation and delaying tactics. It has both static and dynamic impact on information. The exhaustive stages of hearing are essential but cases may be stopped at any stage on a motion for a summary judgment, out of court settlement (negotiated settlement) and withdrawal of cases. The process is in pursuit of the truth and facts which strengthen due process and the rule of law.

Court Fees The Court fee at the Supreme Court and High Court is Nu. 100/- and at the Dzongkhag and Dungkhag Courts is Nu. 50/- for each party.

Hearing Calendar Hearing procedure is a series of logical steps that requires chronological sequence and its implementation translates into results and actions. A maximum of five hearings is scheduled in a day. Consequently, the judges and bench clerks are not overburdened with too many cases in a day ensuring proper time management. Hearing calendar ensures the accountability of the judge and the concerned bench clerk to the public. Daily hearing calendar can be downloaded from the Judiciary Website.

Undue Delays The court does not consider a motion for adjournment or stay of proceedings sine die except in accordance with the Civil and Criminal Procedure Code to avoid frequent and unwarranted adjournments, to deliver timely justice, and to make the process inexpensive. The judge manages the court docket by setting a schedule for filing of various submissions, hearings, and other necessary events, and authorizes adjournments only upon showing good cause. The court is mandated to convene the preliminary hearing within 10 days of registration in criminal cases and within 108 days in civil cases.

Time Limitation Efficient legal system and prompt action will redress the wrong and deter the perpetrators of crime. Individual bench clerk is responsible for processing the cases, so that the cases are decided within twelve months. The pending cases beyond twelve months are submitted to the Chief Justice of Bhutan.

Quality of Justice It is the perpetual quest of the Judiciary to deliver the best quality judgment and to make courts user-friendly. Decisions are posted in the Judiciary website for transparency. Moreover, this enhances consistency and public understanding. Mentioning the name of the judge along with the decision will serve as an incentive to judges, who take pride in thoughtful legal analysis and create a healthy sense of competition and desire to maintain excellent track record.

Rule of Law Rule of law is imperative in our Constitution, derived from cultural, spiritual and legal heritage of Bhutan. Decisions are reached strictly in accordance with the law without any private or public consideration.

Judgment The judgment encompasses the detailed information of the parties, background of the case, detailed charges in the criminal cases, date and number of hearings conducted, court findings including evidences and detailed arguments of the parties, summary of the court findings, ratio decidendi and the court order.

Appeal After a competent court has awarded the judgment, the parties has ten days of time (excluding public holidays) for appeal to the next higher court. If, for any reason, the appeal could not be filed within the limitation period provided under the law, an application of delay must be filed, setting forth the facts on which the appellant relies to satisfy the court that he or she had sufficient cause for not preferring the appeal within such period. If the reasons detailed out for condoning the delay fails to satisfy the court, the appeal petition is dismissed as time barred.

SOCIAL RESPONSIBILITY

Public Notary Office The Office of the Notary Public in looks into non-contentious matters, which leads to an automatic reduction of pressure on the docket, affording the courts time to deal with the cases.

Legal Firms The registration of a case can be effected by a representative of the state, a prosecutor or a Bhutanese jabmi, a police officer, a victim or a victim’s next of kin or an aggrieved person or his or her jabmi or next of kin. There are firms of qualified lawyers and firms for drafting and conveyancing to ensure that all have equal and unimpeded access to the legal process.

Legal Aid In the interest of justice, an indigent accused is guaranteed with legal aid from the State.

Waiver in Public Interest In obedience to the command of His Majesty the Fourth Druk Gyalpo, the Judiciary waived off the 5% tax deduction on land transaction, 10% tax deduction on recovery of loans and 10% on the payments in matrimonial cases.

REFORMS AND OTHER ACTIVITIES

Judicial Reforms Justice is social virtue and an inherent human necessity. A separate judicial cadre was established in 1990. Judicial reforms which were initiated in 1991 aimed at developing a dynamic approach in judicial administration to ensure uninterrupted and effective functioning of the courts. Delivery of justice requires strengthening of institutional buildings, legal framework, infrastructural development, technology and human resource development. The independence of the Judiciary is further strengthened with the enactment of the Judicial Service Act in 2007.

Alternative Dispute Resolution (ADR) Bhutan has a historical tradition of ADR to resolve disputes amicably, harmoniously and expeditiously. It minimizes winner and loser concept, which contribute to societal cohesiveness. The process of negotiations, mediation and other forms of alternative dispute resolution are encouraged.

Access to Justice - Through unhindered access, victims are comforted and the offenders are made accountable. The Judiciary made progress in refining a just and efficient legal system, enhancing greater transparency and strengthening the rule of law, while keeping the cost of litigation inexpensive. These reforms addressed the complaint of prolonged wait before the complaints are registered in the court and avoided the allegation that the court officials were indifferent, hostile or arrogant.

Procedural Reforms With the enactment of Civil and Criminal Procedure Code the following procedural reforms were initiated:

• The miscellaneous hearing calendar was further modified; • The registration procedure and hearing process were simplified and made systematic; • The adjudication process through the introduction of various management principles were adopted; • Bhutanese terminology and legal language were improved; • The introduction of seventy-six judicial forms strengthened professionalism and reduced time consumption; • Rendering of summary and default judgments were introduced; and • Inexpensive litigation with nominal court fees was initiated.

Legal Empowerment The Judiciary initiated legal empowerment through a nationwide series of awareness workshops on the Civil and Criminal Procedure Code for community leaders and dissemination of legal knowledge to the students under “Know the law - to protect your rights series” and establishing law clubs in schools.

Judicial Performance The performance is ensured through an inbuilt system of healthy competition in terms of both the quantity of trials conducted and the quality of decisions rendered thereof by every court in the Kingdom. Further, the introduction of yearly statistical report of cases created awareness and competition among courts and judges. It advocated prompt and professional investigation, fair trial and dispensation of justice.

>>Drangpons and Drangpon Rabjams with the Chief Justice of Bhutan at the 20th Judicial Conference

Institutional Reforms His Majesty the Fourth Druk Gyalpo introduced many institutional reforms to strengthen the judicial system which include, inter alia:

National Judicial Conference - The National Judicial Conference is held once every two years since 1976. The objective of the Conference is to discuss the various legal issues, learn from the fraternity and enhance uniformity. The Conference adopts themes through participatory methods, which are followed by workshops of strategic planning, adjustment of organizations and staffing, reporting, inspection and evaluation.

Infrastructure Development The constructions of court buildings are an integral part of the structural reforms. The separate court building manifests physical separation of power affirming the principle of independence, cardinal to the doctrine of equal protection as enshrined under the Constitution. The architecture of courts personifies the cardinal virtues of prudence, justice, temperance and fortitude, and the spiritual virtues of faith, hope and duty to help one another.

Legislative Reforms Under the Royal Command of His Majesty the Fourth Druk Gyalpo, the Judiciary initiated and drafted various laws including the Civil and Criminal Procedure Code, Evidence Act, the Judicial Service Act, the Jabmi Act, the Religious Organizations Act and the Civil Society Organizations Act.

Penal Reforms In obedience to the Royal Command of His Majesty the Fourth Druk Gyalpo in 1995, the High Court started drafting the Penal Code of Bhutan, which was enacted by the National Assembly in the year 2004. The Penal Code is the consolidation of provisions from the existing laws dealing with criminal offences and addition of new offences in keeping with the changing time and need. It was intended to reinstate dignity to the victims of crime and increase the possibilities for rehabilitation of offenders. On 20th March 2004, His Majesty the Fourth Druk Gyalpo by a Royal Decree abolished capital punishment.

Women and Children Rights Reform The Judiciary has been active in recognizing and protecting the interest of women and children. The Judiciary under the Royal Command tabled the amendment to certain provisions of the Marriage Act to empower women to enforce their rights by seeking conviction and compensation.

Right of Jabmi (legal counsel) In 1996, His Majesty the Fourth Druk Gyalpo commanded the High Court to formally train the jabmis. The jabmis have always been included along with barmi and ngotsap in the traditional right to legal counsel.

INFORMATION TECHNOLOGY

Information Technology & Case Information System With the introduction of Information and Communication Technology (ICT) in 1991, all the courts are computerized. ICT is to develop better planning, management and technical abilities and make the functions easier, better and faster. The Case Information System in the Judiciary facilitates in:

• Retrieval of precedents for enhancing a uniform sentencing system through computerization of case data; • Expediting the drafting of the judgments and furthering the objectives of justice through computerization of qualitative and quantitative information for analysis; and • Studying the trend of the cases in various courts with the submission of Case Statistic Report to the Chief Justice by the respective courts on a monthly basis.

HUMAN RESOURCE DEVELOPMENT

The Judiciary’s general human resources objectives are to:

 Create an atmosphere conducive to best performance;  Develop policies and practices that encourage individual competence and excellence;  Develop a culture of perpetual learning; and  Develop organizational capacity to attract and retain well qualified and committed staff.

Bhutan National Legal Institute (BNLI) The BNLI was established in 2007 for pre and in-service training of the Judicial Service personnel and other relevant officers to provide pre-service and continuing legal education. The BNLI emphasizes on ethics, morality and traditional values. It provides opportunity to the legal fraternity to develop their personality, which would enhance their performance and thereby improve the quality in dispensation of justice.

Research and Co-ordination Division The Research and Co-ordination Division established in 1994 conducts research on the sources of Bhutanese laws, court etiquette and manners, formal address and titles, legal terminology, the design and symbolism of the courtroom etc. Further, the Division imparts in-service legal education, including sessions on procedural code, Information Technology, and Bhutanese literature. Many short-term and long-term remedial measures in the form of workshops and seminars are conducted to resolve serious and common errors.

ADMINISTRATION

Registrar General The Registrar General of the Supreme Court is the overall head of the Administrative, Finance, and Policy and Planning Division of the Judiciary under the direct supervision and guidance of the Chief Justice of Bhutan.

National Judicial Commission The Commission submits recommendation for appointment of the justices of the Supreme Court and the High Court and creation of courts and tribunals. It comprises of:

(a) The Chief Justice of Bhutan as Chairperson; (b) The senior most Drangpon of the Supreme Court; (c) The Chairperson of the Legislative Committee of the National Assembly; and (d) The Attorney General.

Royal Judicial Service Council The Council formulates personnel policies for the judicial bodies, institutions and courts. It comprises of:

(a) One sitting Drangpon of the Supreme Court on a two-year rotational basis, provided that no Drangpon shall simultaneously be a member of both the Commission and the Council; (b) The Chief Justice of the High Court; (c) The Registrar General of the Supreme Court; (d) The Registrar General of the High Court; (e) Two Drangpons of the Dzongkhag Courts on a two-year rotational basis; and (f) One Drangpon of the Dungkhag Courts on a two-year rotational basis.

Conclusion The Judiciary of the Kingdom of Bhutan has been relentless in its pursuit to dispense justice expeditiously, fairly and inexpensively. With access to justice, identified stages of hearing, determination to decide cases within twelve months and transparency provided by public knowledge through the website and the media, the Judiciary endeavours to create a more reliable, fair, efficient and transparent judicial system and will continue to respond to the challenges shaped by the unfolding democracy and the changes dictated by socio-economic development. His Majesty said “Bhutan must have laws that serve the people”.

Tuesday, July 17, 2012

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