Bhutanese legal education will witness an exciting development in the autumn of 2017. The Jigme Singye Wangchuck School of Law will commence a five-year graduate degree. The diligent students will come out as aspiring lawyers by mid-2022 (the Class of ‘22).
In preparation, the faculty members of JSW School of Law went across the country talking to prospective students about the new opportunity. Such a responsible approach is familiar to some of us. In the 1990s the principal of Royal Technical Institute, now retired Dasho Neten Zangmo, talked students into joining rti. Her succinct briefings helped me realize that I was not tech-institute material.
As batch after batch progresses, cohorts at JSW School of Law may find themselves asking or compelled by circumstance to ask:
Whether they have to take the Bar selection examination, or
Whether a university is the sole authority in law to award a degree certificate or so assumed based on a tradition borrowed from elsewhere.
If the governing council or academic council has the answer, students thinking of a career in law and their financiers would care to know in time. Meanwhile, I will discuss certain aspects of these issues, not so much purporting to know the best solution but to suggest possible means of addressing them.
The Bar Selection Examination
Two Acts regulate the profession of law. The first applies to lawyers or paralegals outside the civil service. Lawyers in the civil service proper or deemed so by any other construct are governed by the second.
The law concerning the constitution of Jabmi Tsogdey, Jabmi Thentshog and the Bar selection examination was passed sixteen years ago. According to which a jabmi must be enrolled with Jabmi Tshogdey to practice before a Bhutanese court of law. A certificate of enrolment—effectively the licence to practise law—will be issued by the Jabmi Tshogdey if the applicant passes the Bar selection examination. There are other conditions including having “undergone the National Legal Course.”
Judicial Personnel Selection Examination is for law graduates aspiring to be civil servants, judges or justices. A bachelor’s degree in law and completion of the one-year Post-Graduate Diploma in National Law (PGDNL) course is the prerequisite for the examination. Prerequisite is not the word to be found in the Act but the quintessential signal of obligation “shall” puts PGDNL before the examination. Whether the practice is consistent with the law is questionable. The Common Civil Service Examination for law graduates appears to serve this purpose. If that was not enough, it is said that today a class of PGDNL has some who did not take or pass the common examination-referred to as private candidates and enjoying lesser state subsidy. Of course RCSC absorbs only those who have passed the examination. The rest, I believe, take the examination after completing PGDNL and then wait for placement till their batch finishes PGDNL.
The post graduate course was chiefly to familiarize those of us, who obtained a law degree outside Bhutan, to the national laws and to better Dzongkha proficiency. A degree course offered in Bhutan, I assume, will give an opportunity to study in Dzongkha the Constitution, the laws of judicial procedure and substantive laws of tort, contract, marriage and property. However, unless the law changes, it appears that everyone needs a PGDNL diploma or the National Legal Course. An authoritative interpretation could, nonetheless, settle the question one way or the other.
The sooner this is clarified the better. Should the law graduates be expected to take the Bar selection examination, which is more likely than not, they deserve to be given adequate notice. The Jabmi Tsogday should not find it arduous to conduct a preparatory test or, at least, familiarize the first group of law graduates with the format of the examination.
Uncertain policy decisions, like a moving goal post, will shatter confidence and bring unintended frustrations. Some batches of PGDNL may be forgiven for being disappointed that the course which they spent 18 months to complete was proven to be doable in 12 months by others before and after them.
Equity with other professional courses matters in deciding the period required to qualify as a lawyer. For instance, there is no guarantee that five years of education will produce nothing but fine architects or that seven and half years will not produce mediocre lawyers. Similarly why should it take less than six years to qualify as a doctor but more to qualify as a lawyer, especially if both courses are offered in Bhutan? Given that students can choose any professional course, it won’t be hard to understand if more than the average prefers a shorter journey to employment. On this point—in particular—I offer a word of caution to the old guards. Nothing is going to be more shameful than lawyers standing in the way of progress of the law or development of the legal profession.
Meanwhile, the absence of Jabmi Thuentshog resulted in the lost opportunity to represent on the governing council of JSW School of Law. The need to appoint a representative makes it clear that the Attorney General, ex officio member of the council, does not represent the Jabmi Thuentshog.
I gather that the Jabmi Tsogday was formed recently. There are still more things to make practising the law effective and the learning experience holistic.
Notification of Laws and Statute Book
If ignorance of law is not to be excused then the state has the responsibility to publish and notify about the ever increasing number of laws.
The existing practice is neither consistent nor effective. There is no regular notification of laws brought into force and no website offers a comprehensive list of laws. Amendments are circulated without consolidation of the texts.
To prevent a well-intended fair criticism being chided for offering no solution, I suggest that:
When an Act is passed the state must notify the public with regard to its date of enforcement and applicability, in a dedicated regular publication such as a gazette;
All Acts ought to be published, both in digital version and print, as a statute book and be updated periodically;
The digital version should be made accessible, free or at very nominal price, from a single internet source. The print copy should be available for purchase at a reasonable price at locations like Dzongkhag Yargay Tshogdu, and
When Acts are amended or recast the texts must be consolidated. The civil and criminal procedure code and financial services Acts were consolidated whereas amendments of the Marriage Act 1980, like many others, were not.
Compilation should be easier today because there are not many Acts, and some are available in digital versions scattered over the internet. The longer it is ignored the more laws will come into effect adding to the backlog and complicating the compilation. At any rate, the students of JSW School of Law would benefit immensely, even if a digital version of the statute book is made available.
Should the state lack the funds or the inclination to print a statute book, it may appoint a publisher. The state’s interest must be limited to: 1) ensuring a consistent supply in the market of printed statute books and supplementary updates, 2) right to purchase digital versions for institutional use or to make it accessible to the public, 3) option to purchase necessary print copies of the statute books, and 4) the applicable tax. The publisher must expect no more than an accurate, editable, digital version of laws passed by the state, scholarly editors appointed or recognized by the State, and the right to sell its publication at a reasonable price.
As an interim solution, an insert in Kuensel on the last working day of every other month, listing Acts, regulations and executive orders will serve a good purpose. It should specify the future date of enforcement, the designated internet source and locations to buy a print copy. Information on retrospective application of laws will not be appreciated at best, and may, on the other extreme, cause damage. For instance, on September 14, 2015, Kuensel reported on the revision of the National Minimum Wage rate effective September 1. Someone received a few thousands less in alimony because her case was resolved around September 8.
Law Reporters are journals in which opinion of the courts are published. Reporters will be vital to the development of law and legal education in Bhutan. Without a proper method of reporting opinion and disseminating it, there is no means of verifying that laws were consistently applied in similar circumstances. If an error was made there is opportunity to correct or avoid repetition of bad decisions and to discontinue its effect if the decision itself cannot be undone.
In particular, tort law will benefit from reported opinions on many issues not expressly covered by enacted laws. The legal profession will appreciate how the courts will receive issues like the claim of damage for mental injury in a suit for defamation or liability of state when a fire engine bearing a BG number plate runs a volunteer firefighter over. The recent fire outbreak in Chamkhar should make us wonder who should pay for the two houses deliberately pulled down. Would it matter whether the owners consented or that it was an act of necessity? Studying how the courts in Bhutan apply tort law is as important as studying how the French, English or American legal systems developed it.
Kuensel on December 22, 2016 reported that “…legal representatives should have at least 10 years of experience to practice in the Supreme Court”. It excluded “the legal officers in government agencies.” That decision will be the law till parliament enacts otherwise or till the same court overrules it. Such decisions must be reported and made known to all.
It is not that opinions are not published. Just before judiciary.gov.bt was revamped last month, it had selected cases from 2008 to 2013. Today there are only 11 judgements including two of the High Court. Unfortunately, only two judgements passed in December 2016 are accessible. This is a kind of reporting albeit ad hoc. Reporting judicial opinion in a newspaper is different from reporting in a law reporter. The former lacks the rigour of legal analysis thereby exposing the decision making process and its agents to ill-founded criticism.
Starting from the very first batch, law students of JSW School of Law ought to be given the opportunity to study as many Bhutanese case laws like the one reported by Kuensel on December 22.
Once again, fairly less volume of cases should make it possible to publish opinions from the inception of the Supreme Court. A steady supply of lawyers will be lifelong subscribers of such publications.
As much as we like to adapt to international best practices—some laws are intricately linked to our customs. Legal history, laws of marriage and property are very Bhutanese. Therefore either the state or JSW School of Law has to commission scholarly publications on such branches of law.
A few books are available on Bhutanese law. There is one by former Chief Justice Sonam Tobgye, two by Justice Lungten Dubgyur of the High Court and a few research publications commissioned by the Judiciary.
University: one lonely, two a company, three a crowd?
Anecdotal evidence may suggest that our society has a certain disposition to rumours. To beat the rumour-mongers at their own game, I guess they will say:
That a university is the proper authority to certify a bachelor’s degree. This will make the law students wonder which university will award their certificates; or
That the law faculty deserves a university of its own just like those who opted to teach and study medicine, or
That JSW School of Law will ultimately be affiliated to the Royal University of Bhutan, therefore better affiliate from the very beginning.
Depending on the receiver, such rumours may inspire initiative, ignite irritation or incite inaction.
These questions may be familiar but the debate must sustain in the light of changing circumstances. The state needs to discuss with the public, or at least discuss in public view whether our population or size of the economy requires a college or a university every now and then. Whether colleges should introduce degree programmes without being bothered by the skills the economy is going to demand in the foreseeable future. Whether the universities or the colleges should transcend mere subsistence and embrace the nation building project.
The lessons imparted by JSW School of Law or the Faculty of Nursing and Public Health—I daresay—won’t be any better or worse for the mere fact of affiliation to the Royal University of Bhutan.
Supporting JSW School of Law
The first moot court (mock courtroom trial for academic competition) will be conducted in 2019. Some agencies could sponsor the moot court on legal themes of their interest. It deserves as much support as blood donations, cleaning campaigns, building a temple, sports or song contests. For instance, Tashi Air, Bhutan Air Services, local aviation training licence holders, Drukair and Royal Bhutan Helicopters could jointly sponsor moot court competitions on legal issues concerning rights of passenger and air carrier liability.
Similarly, in mid-2021 law students will seek externships. The JSW School of Law needs support from firms, corporations and the state.
No doubt the administration of the law school will be the primary responsibility of its dean guided by two councils and supported by the staff. Its overall success will depend on the support from the rest of the society.
Allowing up to six months for adjustments, failure to make the Class of ‘22 employable as start-up lawyers by January 1, 2023 may discredit the efforts made to reach there. If issues of law—bar examination; of policy—period to qualify as lawyer; and practice—reporting opinions, are not addressed, the Class of ‘22 will be disadvantaged while in law school and in a Catch-22 situation at the end of it.
Candidate, LLM Air & Space Law, Leiden