… raises question on the legality of the order
Two days before retiring, Supreme Court (SC) Chief Justice Tshering Wangchuk issued an office order to the High Court (HC) acting Chief justice Sangay Khando to comply with the circular issued in June 2015.
The High Court has not enforced the order and many in the judiciary are questioning its legality.
The section 4 of the June 2015 SC circular states that if a person charged with a penal offence is proven guilty and given conviction by a court, the court shall hand him or her over to the police along with the conviction order on the day of passing judgment.
It also stated that the defendant has the right to appeal to the appellate court for which the court should facilitate the defendant while in custody.
“When appealed, it is the discretion of the HC to grant bail or not to a person convicted with an offence,” the circular states.
But despite the order, it stated that during the recent land corruption case of Trongsa, the district court committed a mistake by not complying with the June 2015 circular.
“But as the defendant has already appealed to the HC, the court shall grant the person bail on the grounds that he deposited bailing amount and assured guarantor,” the latest office order stated.
The order also asked all courts to comply with the directive issued.
However, the order, according to judiciary officials is confusing as it did not specify bailable and non-bailable provisions and was a blanket order.
Some law practitioners said that the SC issues an order that is violating the law and the Constitution.
Others said that if judges followed the circular and imprisoned the defendants then the judges also could be in trouble for illegal arrest.
The SC on July 24, 2019 through an order repealed section 199.8 (A,b) of the amended Civil and Criminal Procedure Code 2011 as it violated the Constitution. The section specifies that the court shall not grant bail to a person who has been charged with a penal offence of or above second degree felony.
The SC based its order on section 16 of Article 7 in the Constitution. Critics said that the order made all offences bailable.
Meanwhile, under the doctrine of separation of powers, the laws are made by the Parliament and judiciary’s role is to interpret the laws.
Some people question why the chief justice issued such an order two days prior to the completion of his term.
For the last three years, according to law practitioners and some former judges, there has been an allegation of making the laws from the bench, including legalising the bail for second and first-degree felony offences by the SC.
Some members of the legal fraternity also questioned the legalising of cannibalism in the country.
Kuensel learnt that some district court judges and prosecutors through their own objections are reportedly nullifying orders issued by the SC.
A dzongkhag judge said that the courts in Bhutan recently stopped giving bail to offenders who were charged beyond the felony of second-degree offences as per section 98 A of the amended Penal Code of Bhutan 2011.
The legal fraternity also said that the future Chief Justice should rectify conflicting and contradicting orders so that the doctrine of separation of powers is maintained. “The Parliament should make the laws while the executive shall implement the laws without being biased. The judiciary interprets the laws,” a legal expert outside the judiciary told Kuensel.
“Therefore, we are refraining from enforcing orders issued by the SC,” he said.