Judiciary: The recent verdict on the Druk Phuensum Tshogpa’s defamation case against Dasho Benji, delivered in English, raises the question about the language of the courts.
The Supreme Court issued a notification on February 3, 2016 requiring the courts to accept the submissions from litigants only in Dzongkha.
Until then while some believed that a litigant could make his submission in the language he understood, the common view, albeit misconceived, held by many judges and courts, was that Dzongkha was the court language and that court proceedings were to be conducted only in the language of the court.
As a result, many litigants, practicing lawyers and the general public have complained about the refusal of the courts and judges to accept their petitions in English as being an impediment to access to justice.
There is no other law besides the Supreme Court notification that specifies Dzongkha as the language of the court.
Section 187 of the Civil and Criminal Procedure Code states that criminal charge has to be written in the language of the court.
Section 138 of the same code provides that pleading must allege a statement of facts setting forth a cause of action or defence in ordinary and concise language. But ordinary language is not defined.
“It is the right of the litigants to have their cases adjudicated in the language they understand. The inability of the litigant to understand the language used in court can create significant barriers to justice,” the verdict stated.
A number of international treaties recognise the right of individuals to be informed of charges against them in a language they understand and the right to an interpreter if they cannot understand the language used in court.
Some lawyers Kuensel spoke to said that given a choice they feel comfortable writing their submissions in English. They are educated and trained abroad, learning about the law in English while they have only a yearlong training in national law.
“The common view that Dzongkha is the court language is not only misconceived and wrong, but is also against the principles of fair trial,” the verdict stated.
Earlier, most of the clerks and judges were only Dzongkha literate. Today the judges and clerks are modern educated, they said.
Others argued that the court should stick with the national language in its submissions at least. Dzongkha is the national language given in the Constitution.
“Yes, I agree that parties should be given choice of language, but it should not be at the cost of national identity,” a lawyer said. “Such pressure from the court would only help to promote our language in daily use.”
For instance in India, English is compulsory in the court petition right from the sessions court till supreme court.
“I feel that while we should and must let the litigants understand what is being written or written by courts through the language they understand for instance Tshangla, Kurtoepkha, Khengkha or Lhotshamkha, it should be written in Dzongkha,” the lawyer said.
“As language of the court, if we allow English then what about those foreigners prosecuted in the court like Bengali, Germans, Russians, Chinese who don’t understand even English?”
However, few courts including the High Court allow litigants or their representatives to argue in English.
In another ongoing hearing a defendant asked the Thimphu dzongkhag court to accept petitions in English. The court however denied this request. The judge said that the court can accept petitions only in Dzongkha. Despite that the defendant submitted arguments in both languages.