Officiating Chief Justice of Bhutan, Kuenlay Tshering shares his views on the recent criticism of him, on the judiciary and the social media comments. An excerpt.
The judiciary of Bhutan has come under a lot of criticism. What is happening?
After I became the officiating Chief Justice (OCJ) of Bhutan in November 2019, I thought it would be for a brief period. Therefore, I didn’t make any decisions. However, during the Royal Address on December 17, His Majesty spoke about responsible officers not taking responsibility.
I realised that I have to work even if it’s for a day because I don’t know for how long I will be the OCJ.
First up was drafting rules. We formed a drafting committee to draft rules on appointment, transfer and promotion, training and study, rules on ethics within the judiciary.
We always say the judiciary always strives to give its best, to gain people’s trust, faith and confidence. First of all we need to gain confidence within ourselves. For that we needed rules ourselves and be transparent.
Because some people staying in remote corners for ages and some in city, staff had to be transferred. Drangpons are transferred every three years and bench clerks every five years. We have bench clerks who overstayed in the capital for over 11 years.
We planned the Annual Judicial Conference in March, as the conference has not taken place in the last three years. Many Drangpons wanted the conference so that they could voice out what good and bad things were going on.
This conference is an opportunity where we deliberate all issues, come to a conclusion to how to harmonise and proceed. It’s also an opportunity to make different interpretations of laws uniform.
The conference could not take place due to Covid-19. Even the Registrar General was supposed to be transferred in March after the conference.
Without the conference, the draft rules couldn’t be adopted. The Royal Judicial Service Council was not comfortable to pass it since they feel it should be put in conference. We have all judges from the country and all read the draft. Even took their suggestion in drafting.
My idea was to bring internal trust and confidence and for that we have to be fair and be fair to everyone in the judiciary.
The first major step I took was transferring of bench clerks in the country which was never done. This is a sticky issue. People don’t like to move. So, I received a lot of criticism on social media.
The criticism, many say, is from within the Judiciary
Of course it is. Outside the wall of the judiciary people know very little about us. After bench clerks were transferred, I received so many appeals from bench clerks backed by supporters. Some came crying but revoking the decision for one individual would water down the entire decision of the Council and I said we will stick by the decision of the Council.
There are about 125 bench clerks transferred. When it happens like this, it’s not a good job, but my job is not to please people but to do the right thing.
The transfer was said to be unfair.
I don’t know what is fair for them. The seven-member Royal Judicial Service Council formed to discuss on transfer of bench clerk took 11 days. One of the senior members of the Council remarked that for the first time he felt that the council was finally doing some work. Before, the Council directly received directives from the Chief Justice and the meeting was done within half an hour after endorsing the CJ’s directives.
Under the Judicial Service Act, programmes, plans and rules are approved by the council with final consent of the CJ.
A lot of people say they are losing trust in the Judiciary.
Judiciary is the upholder of law and rule of law in the country. We have to first follow the laws ourselves and then enforce the law. First parameter of laws is to act within the law, follow them, respect them and we have to have rules ourselves. Since there are no rules nothing much can be done. We need rules on judicial ethics.
The rule on ethics of a judge is not clear. Taking action was hard. If a uniform law is adopted, the judiciary would form an enquiry committee to study the judge to truly draw conclusions on partial judgment. Accordingly, the judge will be responsible if he or she has erred in his judgement. They will be dealt with the provisions of the Judicial Act. But if it is a false allegation or a malicious act, then the person will have to pay compensatory damages to the judges because it involves the reputation of a judge in public and the institution.
The rule was not there since this sort of huge allegations never happened before.
There are allegations that there are flaws in the appeal system
I don’t want to defend the Judiciary, but public opinion should be respected and not brushed aside. By respecting public opinion we need to look at our own system, assess, dissect the system and see where the correction and improvement should be made.
I feel that one particular measure or a major formula to correct would be to have a clear-cut rule whereby the power of the CJ would be transferred to the rule. That is where transparency lies, that is where fairness goes. That’s why I’m stressing on rules and rule of law.
There seems to be a campaign on social media against you. How did you deal with it?
I did not have to deal with it and it did not have any impact on me because as far as I’m concerned, the appointment of CJ is a Royal Prerogative according to the Constitution. Even the National Judicial Commission does not have the authority to even recommend.
I was accused of relocating the Chukha district court from Gedu to Tsimasham. When the district court of Chukha was established 40 years ago, it was in Tsimasham. It has a registered land of four acres based on which former CJ Tshering Wangchuk and his administrative team readied a map and sent it to the Gross National Happiness Commission Secretariat on August 29, 2019. So where is my hand in it?
The Gedu site was never registered under the judiciary. The Dzongkhag Tshogdu discussed it and the majority voted to build the court in Gedu. But this is a local government decision and judiciary is a separate body. Their resolution is not binding on the judiciary.
The government of India on January 7 approved the budget. Engineers of SC advised us to start construction. The DT chairman questioned me. I called the drangpon and told him to explain. Historically, culturally and for administrative purposes, the court should be where the dzongkhag administration is. It will be convenient for the people. If we have controversy, donors may not want to involve and pull out and then people of Chukha will suffer
People also tried to link the issue to me trying to help the Member of Parliament, Tshewang Lhamo. The MP is a member of the four-member Commission, but the entire members have no say in appointing the CJ of the Supreme Court.
Why are people using social media to attack you and the judiciary?
I don’t know why this is happening. Actually, people should not do it. It is as if they are either undermining the provisions of the Constitution or they have no knowledge. I think they know the provisions of the Constitution.
I don’t have influence over the authority that appoints the Chief Justice of Bhutan. I need not campaign. I am least bothered about what is said on social media. I am a son of a simple farmer. I reached this far in my career and am very grateful to the system. My track record, quality ethics and value as a human being are my only chances after serving about 30 years in various capacities. I am satisfied.
Have you wondered why people are doing this (on social media)?
Why do we need laws? We need laws because human beings are not perfect. If it is in Dewachengi Zhimkham (paradise), there is no need for rule. But in our world we need law to put society in order.
One of the most pertinent points, I think, to answer your question is when I introduced changes, there are some people who are not comfortable with the changes because they are used to the system for many years. People who are affected must be feeling that now if I become CJ, I will bring drastic changes and then what they do is not good. This is my doubt. Otherwise there is no reason I can imagine. This is something which was not there. When a new element is introduced, it must be affecting some people.
For me whoever becomes the CJ, we should respect and do our job. We have independence. If I don’t agree with the judgment, I can pass a dissenting judgment. I have done on the Tashi vs Thromde land case.