Bhutan’s appeal system is vulnerable to abuse

With the recent news of the Home Minister appealing to the Supreme Court after he lost his case in the larger bench of the High Court, some criticized the move as political and some questioned the judiciary for allowing the appeal. However, the actual problem is due to the existing laws and not the parties in the case or the judiciary.  The sole purpose of an appeal is based on the premise that “every human being is fallible, and a judge is not an exception” and judges can err or commit mistake resulting in a wrong decision. The appellate courts are there to rectify such errors or mistakes. Thus, the right to appeal is only a legal right to the extent permitted by the law. Generally, the right to appeal is limited around the world. But in Bhutan, the right to appeal is almost automatic.  

 Section 109 of the Civil and Criminal Code, 2001 allows any party, in any case, if the appeal is made from the final judgment and filed in the registry of the appellate Court within ten days from the judgment.  The only checks are where the court can order “the appellant to furnish a bond as a precondition to an appeal to secure the Plaintiff’s Judgment against disbursement pending appeal and discourage frivolous delay” and bar on the introduction of fresh evidence or evidence not introduced during the proceeding before under Sections 109.3 and 110.4 of CCPC. However, imposing bond itself has demerits particularly for lower-income people.  

Let us now look at few examples from some of the most liberal and democratic nations. Under the Indian procedural laws, in general, if the High Court convicts a person not “exceeding six months or fine not exceeding one thousand rupees or both” and the lower court denies the permission, the appellant cannot appeal. In the United Kingdom, an appeal can be made only with the lower court’s permission except in certain limited circumstances relating to the liberty of the appellant.  In Southern Australia, an appeal can be made only “against conviction, on any ground that only involves a question of law or against conviction on any other ground if permitted by the lower courts. Canada has similar restrictions. In the United States, generally only losing party can appeal on the grounds of application of wrong laws or violates the U.S. Constitution or a state constitution.” In criminal cases, the government does not have the right to appeal.

Contrarily, in Bhutan, every party in a case has the right to appeal merely because they are not happy with the lower court’s decision. Thus, such a right of appeal in Bhutan is highly vulnerable to abuse.  Those who win cases will appeal expecting more advantages, losers will appeal as they have nothing to lose, some appeal to harass the other party.  Similarly, some will appeal to buy time like loan defaulters to evade payment for more time, elected officials, and term-based officials to complete their tenures by avoiding removal from their positions. Further, some lawyers will also appeal to get more money from their clients. Such practice will affect the genuine parties as too many appeals will compromise the quality of decisions and add a burden on public expenditure and judicial infrastructure. Our lawmakers must review such provisions in the interest of justice of genuine parties and minimize abuse of judicial proceedings. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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