Control over judicial personnel – a necessity for justice and judicial independence

The appointment of judges and justices dominated the recent news and almost all positions are now filled. Separation of power and judicial independence is a pillar of democracy. His Majesty said, “the judiciary is one of the foundations of the sovereignty of the country, for ensuring perpetual happiness, and protecting the rights of our people.”   However, without any personnel autonomy, there is no judicial independence as it has serious ripple effects on judicial decisions.  In spite of the separate Judicial Service Act (JSA) of Bhutan 2007, the entire judicial personnel except Drangpons and Rabjams remain in the domains of the Royal Civil Service Commission (RCSC).

In fact the primary purpose and objective of JSA were to uphold judicial independence and  “promote the caliber, efficiency, and effectiveness of the Judicial Service Personnel in the administration of justice. Section 19 of JSA constituted the Royal Judicial Service Council with “the full authority to determine and administer the organizational structure, budgetary and personnel requirements of the Judiciary.” This included creation, abolition, promotion, higher education, judicial selection examination, rewards, organization, administration, staffing pattern and strength, classification of services in the judiciary. The council even has the authority to recruit personnel on contractual or on deputation based on the needs of the judiciary in the interest of justice to people.

JSA also empowers complete control over the entire judicial personnel from chief judges to the lowest support cadre and has the duty to submit necessary modifications and changes to Parliament. The only possible reason may be because Section 5 of the Civil Service Act (CSA), 2010 explicitly excludes Drangpons and Drangpon Rabjams from Civil Service, meaning other personnel is within the civil service. Contrarily, Section 5(f) of the CSA excludes “any other as may be determined by Parliament from time to time” from civil service. Since JSA was enacted, one can conclude that judicial personnel should not be civil servants.

In a nutshell, the lack of autonomy of judicial personnel is not merely due to control of RCSC alone but of the Judicial Service Council itself. This council has the authority and duty to implement the provisions of JSA, but most of the mandates remain to be implemented.

Currently, the High Court has just one lawyer, most district courts do not have any lawyer to assist the judges affecting both the efficiency and quality of decisions. Compared to our system, for example, Indian Supreme Court has over two thousand personnel for 34 justices, more than half are professionally trained lawyers because the Indian Judiciary has full personnel autonomy.

Judges alone cannot deliver justice without a strong and professional cadre of judicial officials. The determination of judicial personnel with appropriate personnel for the judiciary can be best decided by the Judicial Service Commission. Without a single judicial official in the RCSC, RCSC may not understand the requirements of the judiciary because judicial and bureaucratic functions cannot be equated. Further, such dependence on another institution may affect independent judicial decisions. More importantly, the current system seems to infringe on Article 1(13) of the Constitution.

In the interest of justice to the people, to uphold the rule of law and respect the separation of power, personnel autonomy of the judiciary has become necessary. A judicial personnel autonomy will improve justice, motivate those working in the judiciary and lead to a professional cadre within the judiciary in long term.

Sonam Tshering

Lawyer, Thimphu

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

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