A master stroke?

One skillful means some enlightened Buddhist masters use is to “pull the rug out from under their devotees’ feet” by shocking them with unexpected instructions or decisions. This disarms them and destroys the inertia which make them cling to habits.

The judiciary of Bhutan received such a wake up call this week with the appointment of an unexpected – some would say unknown – personality as Chief Justice of the Supreme Court. Interestingly, while there is surprise, supposition, and speculation, there is no real skepticism. Such a public reaction deserves some reflection.

The premise many in our society share today is that, for a number of reasons, the judiciary is losing the trust of the public. The public image and confidence in this arm of government need to be restored.

For one, the judgements of the courts result in discontent, so much so that even petty cases can be appealed all the way to the Supreme Court. The frequent reversal of judgement is a sign of inconsistency among the higher and lower courts.

It has been alleged that judges and courts are influenced and even used by wealthy and influential personalities. Even if it is only partially true, this it is antithetical to the need for judges to be beyond reproach – to command respect as wise and fair members of society.

In our small society, information moves fast and there is a general impression that there is internal rivalry within the judiciary, to the extent that even criticism in the social media are sometimes believed to be instigated by judiciary staff including judges.

With no candidates rising above internal conflicts the process of consultation and recommendation by a judicial commission was defeated.

In the appointment of the Chief Justice, judges are known to see it as a right to claim the post through seniority rather than by earning the status and position through professional competence in upholding the rule of law.

Our judiciary, in other words, has lost its case in the court of public opinion.

This is why the public appreciates the idea of a candidate from outside the judicial system. It implies that there was no obvious leader within the system.

This is a precedent in our not so long Constitutional history. And the significance is not lost on us. It fulfils the requirement enshrined in the Constitution of the Kingdom of Bhutan that it is the Constitutional mandate of a Monarch, as the protector of the Constitution, to restore the credibility of the system if and when the judicial system becomes disfunctional.

Such a precedence is welcome but not without regret. To be fair to the judiciary, we know it is not easy to entirely avoid dissent and criticism in our small society where there are no secrets and, in some ways, objectivity is a challenge. We also come from a tradition of mediation with respected elders helping to settle disputes, a tradition that ensured stability in the community. Now we are grappling with a system (some call it modernization) where every case is translated into a winner and loser.

How do we accept losing a case? As winners we believe that we were right. As losers we claim that the judge was unfair. So we need to cultivate a culture of respect for the law and judicial institutions. What we internalize as just and fair must be represented externally by the judicial system.

Thus we appreciate such a master stroke as we aspire for a just and harmonious society.

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