It’s final and great news. Delinking judicial personnel from the civil service is a historic moment for Bhutan’s democracy. While the news went largely unnoticed by the media, social and mainstream, its significance in terms of checks and balances between the executive and judiciary is worth discussing. It has been long overdue, and this will have a significant impact on the rule of law and judicial independence.

The principle of separation of power is well-settled law and is considered essential to any democracy. The separation of power is a “division of a democratic state into three institutions or branches of government: the legislature, the executive and the judiciary.” This principle is to ensure checks and balances on three branches from exercising or limiting the “arbitrary application of authorities” by any of the three branches of the government, the executive, the legislature, and the judiciary.

In Bhutan, Article 1 (13) of the Constitution states that “there shall be a separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution.” This is unlike most other democracies including India or the United States of America, under the personal supervision of our Great Fourth, His Majesty the Fourth King, inserted the provision clearly to prevent any unnecessary differences between the branches of the government. Further, this Article also provides the limits to which each branch of the government can exercise their authority. For example, Article 20 (8) of the Constitution states that the “Executive shall not issue any executive order, circular, rule or notification which is inconsistent with or shall have the effect of modifying, varying or superseding any provision of a law made by Parliament or a law in force.”

One of the key teething problems for the judiciary to improve its efficiency has been the control over its personnel. Merely having judges as independent is not enough to deliver quality justice. 

Now with the delinking of judicial personnel from the Royal Civil Service Commission, the judiciary must immediately devise plans to address the issues of acute shortage of human resources, not just in number but in quality as well. This may include the hiring of competent lawyers which may be even from private or corporates as the Judicial Service Act allows secondment, deputation, or contracts to improve the service delivery, particularly the court decisions.

 Further, the legislature must also take cognizance of the lack of budget for the judiciary. Unlike in other countries, any revenue generated by the judiciary is deposited in the revenue account of the state. The judiciary is one entity that receives the least amount of budget. For example, in 2021-2022, the government allocated Nu.  389.802 million for the judiciary, of which Nu. 293.762 million is for recurrent and Nu. 96.040 million is for capital. Compared to the judiciary, the Local Government alone received Nu. 26,031.944 million and the smallest Ministry, the Ministry of Labour and Human Resources received Nu. 1,557 million. Thus, to improve the efficiency of judicial services, the legislature must allocate adequate funds to strengthen the rule of law. 

 His Majesty said that “we build a vibrant democracy based on our Constitution. We strengthen the Rule of Law and through the Rule of Law, we consolidate institutions of check and balance, which in turn promote good governance.”

Sonam Tshering

Lawyer, Thimphu

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