For uniform application of laws

The Supreme Court has issued several orders to ensure justice is delivered 

Judiciary: Any aggrieved party, who is dissatisfied with the lower court’s verdict and had not been able to submit additional evidences during the court proceedings, can now submit new evidences and charges  to the first appeal court to conduct the de-novo trial (anew).

This was one of the orders the Supreme Court issued recently to ensure fairness and justice for litigants who appeal to a higher court. The order was in consonance with the resolution adopted during the 21st National Judicial Conference in 2014.

The order stated that even though the relevant laws do not allow for changing of facts and issues on appeal since most of the users of the courts are pro-se litigants with no legal background, the resolution to hear the case de-novo by the first appeal court was adopted to ensure fairness and justice.

The system of appeal to a higher court from the decisions of a subordinate court in any legal system is a method by which the system checks injustice, ensuring that justice is accorded to the aggrieved party in accordance with the provisions of the laws.

In an earlier interview, a Supreme Court official said the appeal system was established and incorporated as a fundamental constitutional right since miscarriage of justice may result from many factors such as misinterpretation of law, bribery, and business.

However, apart from the Supreme Court, no other courts will have jurisdiction to order re-opening of cases.

The Supreme Court order also stated that in accordance with section 28 of the penal code, a recidivist- an accustomed or habitual offender, and all persons convicted under felony shall not be allowed to pay Thrimthue in lieu of imprisonment.

“Therefore, the permission to pay fine shall be based on the charge and not the number of years of sentence,” the order stated. For instance, if a defendant is awarded half the term of minimum sentence under fourth degree felony, which is 18 months, he or she shall not be permitted to pay fine in lieu of imprisonment.

A person, who received a criminal conviction, cannot use appeal as an excuse to avoid imprisonment. The order stated that at the end of a criminal trial, if found guilty and liable for imprisonment, the trial court must issue imprisonment orders and hand over the convicted defendant to the prison authorities with the instructions to assist filling of an appeal by the convict. The decision to grant bail will lie with the appeal court.

Regarding bail, one must apply on the day of production before the court. Guarantor for the accused who is responsible for producing the accused during trial must be made to execute an undertaking in writing and the court must issue clear instructions and directives related to the responsibilities of the guarantor.

The judiciary has also amended the arrest warrant form. An arrest warrant issued by one court of jurisdiction shall apply to the whole territorial jurisdiction of Bhutan without having to issue for specific jurisdictions.  If a warrant of arrest is to be enforced outside the territorial jurisdiction of the issuing court, the police shall obtain an endorsement from the court that has territorial jurisdiction.

To do away with the requirement of issuing repeated summons, the Supreme Court order decided that an arrest warrant will be issued based on failure to comply to the first summon order.

Meanwhile, courts will also give priority to all environmental related cases and adjudicate on fast track similar to criminal matters. “Preliminary hearings must be initiated within 10 days of having registered the matter,” the order stated.

When it comes to enforcement of judgment on bank or private loans, the calculation of time granted for payment of judgment debts or compliance, will be tolled from the date the judgment was rendered by the final court and not from the date of issuance of orders by the enforcing court. “Henceforth, appellate courts should specify the time for payment of judgment debt in their enforcement order,” the SC order stated.

Rinzin Wangchuk

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