Tashi Dema

The Female Earth Pig year dug into the judiciary, making it a turbulent year for those in the third arm of the government.

Even before the former Chief Justice Lyonpo Tshering Wangchuk resigned, guesswork and assumptions dominated discussion on who will be the next Chief Justice. This was not helped by social media, especially Facebook, where people started maligning justices of the Supreme Court, as they started recommending their own candidate.

Within the judiciary, there appeared to be numerous problems as the Royal Audit Authority pointed out the need for reforms to deliver fair, just and equitable justices after it conducted the review of the judiciary system and practices.

The audit report issued in June 2019, which is still not accessible to public, highlights shortcomings that require remedial measures in both case management procedures and practices and legal and institutional framework.

RAA noted inconsistent case management practices in courts, as there is no standard to assess the performance of the courts, timeframe to dispose cases, a fixed number of summon orders and rebuttals in trials.

In its annual report, judiciary attributed lack of financial and budgetary independence affecting its independent functioning. Judiciary was allotted a budget of Nu 623 million in 11th Plan.  In the 12th Plan, it was 20 percent more.

The judiciary was jolted again when its own judges and those in legal fraternity questioned the legality of the Supreme Court orders that ruled section 199.8 (a.b) of the amended Civil and Criminal Procedure Code of Bhutan 2011 null and void and not respecting the SC orders.

SC ruled that the section contravened the Constitution and repealed the provision but many questioned if the SC has the authority to repeal the clause as the legislative power rests with the Parliament. Some even accused SC of usurpation of legislative power.

SC also ordered High Court Justices to follow section 4 of the June 2015 circular, which mandates a person charged with a penal offence proven guilty and given conviction by a court should be handed over to the police along with the conviction order on the day of passing judgment.

The Judiciary also came under severe criticism when judges gave concurrent judgments for rapists and altered child trafficking charges to illegal immigration.

The acquittal of the 27-year-old woman from remote Sertena village in Haa, who was imprisoned for abandoning her newborn in Phuentsholing and rape of minor boy, also received mixed reactions from the public.

While many appreciated the private legal counsel, who defended the woman’s case pro bono, they questioned the judicial process.

What can be remembered of the judiciary was courts institutionalising mediation services to enhance access to justice and offer an alternative to adversarial litigations to the litigants.

Judiciary and Bhutan National Legal Institute (BNLI) initiated the system to enable people to opt-out of litigations even after the cases are registered in the courts, at any stage of adjudication, in favor of mutual settlement, known as the Nangkha Nangdrig.

Judiciary also gained some popularity in social media when Sarpang court altered the judgment for a teacher who was given concurrent sentencing of four years and half years to more than 20 years imprisonment.

Many also lauded judiciary for its paradigm shift from punitive to restorative justice system when Trongsa dzongkhag court ordered two youth, aged 14 and 17, in conflict with the law to serve meal during the local tshechu, read His Majesty’s speeches and Penal Code provisions related to youth and crime.

Many called for the entire judiciary to replicate such reformative decisions so that it prevents offenders, particularly youth from becoming hardened criminals or at least help them realize their mistakes and divert their mind into other socially useful and productive activities.

With the Chief Justice and the senior-most justice completing their term and leaving office, the Supreme Court of Bhutan will see new appointments in the Year of the Rat.