The Judiciary of the Kingdom of Bhutan 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 Druk Gyalpo, 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 kabney and court seal. JURISDICTION The Royal Court of Justice The judicial authority of Bhutan is vested in the Royal Courts of Justice comprising the Supreme Court, the High Court, the Dzongkhag Court and the Dungkhag 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 Dungkhags 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 Dungkhag Court 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.