Access to justice is a crucial aspect of the rule of law, and various legal systems have implemented strategies to ensure it. The UNODC emphasises that access to justice is a fundamental principle, enabling individuals to express their concerns, uphold their rights, challenge discrimination, and hold those in power accountable.

The Declaration on the Rule of Law underscores equal access to justice for all, including vulnerable groups, and commits member States to providing fair, transparent, effective, non-discriminatory, and accountable services for universal access to justice. The Civil and Criminal Procedure Code in Bhutan permits family members to represent themselves in court cases, necessitating a review of the definition of family members.

An Indian court stated that access to justice encompasses an individual’s right to access the court and obtain legal representation. It involves several fundamental elements, such as recognising grievances, raising awareness, receiving legal advice or assistance, court accessibility, relief claims, grievance adjudication, and enforcement of relief. The concept consists of two significant components: a robust legal system with defined rights supported by legislation, and an accessible judicial system readily available to the litigant public.

The increasing complexity of the economy and the emphasis on individualism, coupled with judicial reforms, have led to a greater demand for court intervention in addressing disputes and issues in modern times. However, a significant barrier to accessing justice is the high cost associated with legal advice and representation. To overcome this obstacle, the Bhutanese legal system has instituted the rights of family members to represent their family members who cannot represent themselves.

For example, according to Section 116 of the CCPC 2001, a lawsuit can be initiated by three entities. Firstly, the litigant themselves, allow individuals with legal claims to personally start a lawsuit. Secondly, a member of the litigant’s joint family can initiate a lawsuit on their behalf to secure justice for their family. Thirdly, the litigant can choose a Jabmi, a professional lawyer, to initiate the lawsuit as their legal representative. However, there are instances where litigants cannot afford to hire a lawyer or represent themselves and wish to have their cases represented by a family member. The available data reveals that most Bhutanese still prefer to represent their own cases- prose litigation.

Defining who qualifies as a family member is intricate, especially in societies like ours where the concept of family extends to a large extended network. Courts have adopted the census records maintained by the Civil Registration and Census to address this complexity. However, this approach has unintended consequences. Factors such as property division, work dynamics, and modern lifestyles have led to family members being in separate census records or residing in different districts. Children and their families may be registered elsewhere due to various reasons, creating challenges in determining their legal status as family members. Under the current definition, even close family members like daughters and sons cannot represent their parents or other siblings solely because their census is in a different registration.

Hence, it is crucial to reconsider and update the existing definition of a family member to ensure that access to justice is accessible and aligned with the preferences of litigants or individuals seeking justice. Instead of relying solely on census records, the court could consider allowing representation by children, siblings, and close relatives, irrespective of where they are registered if their relationship as family member can be determined.

Sonam Tshering

Lawyer, Thimphu

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