Constant amendment hinders execution: Judiciary

14,444 cases decided within 108 days

Report: Enforcing of law due to constant amendments to the existing laws and new laws enacted by the Parliament has become the biggest challenge to the judiciary, according to the annual judiciary report released on January 8.

Courts across the country settled 14,444 cases within 108 days, but the report stated that although legislature is the lawmaking body, interpreting the law by the courts can make comprehensive changes in the actual implementation and overall scheme of the law.

“It is generally believed that the law is deemed to be what the court interprets it to be,” the report stated. “Therefore, the courts have the responsibility to give purposive and rational interpretation.”

Citing an example of an issue associated with section 39 of the Penal Code of Bhutan, which was amended in 2011, the report stated that the provision before amendment had problems associated with the differences in the Dzongkha and English texts. Then the courts on the basis of an executive order issued by the chief justice in August 2005 adopted an interpretation using discretion to determine the compensatory damages.

However, the 2011 amendment removed the word “maximum” from the English version instead of making correction in the Dzongkha version. This, according to judiciary report, has now made the provision “unreasonable” if interpreted literally, as the judges are required to award an amount fixed by statute as compensatory damages, irrespective of the gravity and seriousness of the injury.

Judges are denied of the opportunity to use common sense, discretion and reasonability to enforce the law. It also denies the defendants of the responsibility and fairness in paying compensatory damages. “Therefore, in such cases the judges should follow the golden rule of interpretation rather than the literal interpretation and use discretion in awarding compensatory damages based on gravity of the injury and the existing mitigating and aggravating circumstances,” the report stated.

The other challenge confronting the judiciary today is to ensure that the trust and confidence of the people are maintained in the justice delivery system, and to set up a mechanism for effective dissemination of information designed in a manner that enables people to understand and appreciate the task, roles and responsibility of the judiciary.

The report also highlighted the need to devise strategies and means to disseminate information on new laws enacted by Parliament to suit the needs of the society.  “However, there is a vacuum in raising awareness,” it stated.

Meanwhile, 37 courts across the country, including the Supreme Court and the High Court decided 20,249 cases in 2014, an increase of 4.66 percent from 19,304 cases decided in 2013.

Of the total 21,604 cases, including 20,202 new cases registered in various courts and 1,402 cases brought forward from 2013, 14,444 cases were decided within 108 days.

The highest numbers of cases were recorded in Thimphu, Phuentsholing and Samtse with 5,972 cases, 1,423 cases and 1,296 cases respectively.

The monetary cases topped again in 2014 with 5,065 followed by 4,837 matrimonial cases.

A total of 359 cases were appealed to the High Court out of which 120 went to the Supreme Court, which accepted only 20.   The report stated that appeals are disposed off timely, and judgments have become more principled and transparent.

“False ideas and vain expectations along with frivolous appeals are not permitted to negate the legitimacy and efficacy of the appeal system,” stated the report, which also said that excessive and indiscriminate access would invariably over burden the appellate courts in due course of time.

Therefore, the report recommended that unnecessary and unwarranted appeal aimed to harass or buy time needs to be checked and weeded out during the miscellaneous hearings conducted by the appeal courts.

The highest number of appeal cases to High Court, as usual, went from Thimphu court, which has five benches at 111 cases, 40 from were from bench II and lowest from bench V with only nine cases. Mongar saw 44 cases reached the High Court and Wangduephodrang 37 cases.

Of the 494 appeal cases decided by the High Court, 63 cases from bench II and 56 cases from bench I appealed to the Supreme Court

Among the dungkhag courts, Phuentsholing, which has two benches, recorded the highest number of appeal cases at 33 that went to the dzongkhag court followed by Gelephu court at eight cases.

Among the dzongkhag courts, there was no appeal from Lhuentse and Samdrupjongkhar while six dungkhag courts have no appeal record to the dzongkhag courts.

As of January 8, there were 28 pending cases beyond 12 months including three in the Supreme Court, two in the High Court, eight in the Thimphu district court, six and five cases in the districts of Paro and Dagana respectively.

By Rinzin Wangchuk

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