Former judges are allowed private practice but only before courts higher than in which they served
Parliament: Former judges will be allowed to practice as lawyers (jabmi) before courts higher than he or she has presided over during their service as per a new clause in the Jabmi Bill, which the joint sitting of the Parliament passed yesterday.
Section 24 of the Jabmi Bill states that a former drangpon may practice as jabmi before the higher court than the court he or she has presided. This amendment defers from the clause in the Jabmi Act 2003 that barred former judges from private practices.
However, drangpons cannot practice as jabmi in the courts they have presided or in lower courts like a dungkhag court.
For instance, a drangpon who has served in a district court can represent his or her client before the High and the Supreme Courts. But they can neither be a jabmi in the district or dungkhag courts.
“Since, it would be unfair to bar former drangpons from practicing as jabmi, the joint committee recommended to allow former judges as jabmi in courts higher from those they have presided while in service,” the joint committee chairperson, Ritu Raj Chhetri said.
Panbang’s representative Dorji Wangdi, however, argued that former drangpons should be allowed in all courts. He reasoned that such categorisation would contravene the right to livelihood enshrined in the Constitution.
“Irrespective of where a former drangpon would have served while in service, since they are private individuals after leaving office, they should be allowed to practice as jabmi,” Dorji Wangdi said.
But the criteria could not be removed as a majority of the members of the joint sitting were in favour of retaining the recommendation of the committee.
A joint committee presented the recommendation at the joint sitting yesterday following disagreement between the National Assembly and Council on 23 sections of the bill. While most of the 23 sections were accepted as it is in the bill with a few changes, the joint committee recommended two major changes.
Ritu Raj Chhetri said that the two major amendments were allowing former drangpons to practice as jabmis and the formation of a Bar Council (jabmi tshogde) and Bar Association (jabmi thuentshog).
Earlier, section 14 of the bill stated that there shall be a jabmi thuentshog of Bhutan established in accordance with the relevant act. This was amended as, “there may be jabmi thuentshogs established in accordance with the relevant laws.”
This section was changed to keep the institution of association open to the jabmis rather than dictating their formation.
Ritu Raj Chhetri pointed out that although the Bar Association and Council were spelt out even in the Jabmi Act 2003, neither was formed. Absence of these judicial entities hindered providing pro bono legal aid services to people especially the indigent.
“Even the budget for pro bono legal aid services from the government was reduced to Nu 100,000 last year from Nu 300,000, which was never used in absence of Bar Council,” Samtse’s council member, Sangay Khandu said. “There is not a single incident where the needy were able to avail pro bono services from a jabmi though almost every act has a provision for free legal services.”
Section 9 (f) on the functions of the jabmi tshogde highlights the pro bono legal aid services provision in addition to fund support from the state.
“It will however be left to the jabmi tshogde on the number of cases each jabmi has to provide on pro bono legal aid services in a year,” Ritu Raj Chhetri said.
The joint sitting also deliberated at length on a new subsection under the functions of the jabmi tshogde on allowing the council to recommend appointment of drangpon from eminent jurists working in other firms. The new section states that the Bar Council will recommend to the National Judicial Commission or Judicial Council for the appointment of drangpons from eminent jurists serving in other agencies.
Dorji Wangdi said that empowering the Jabmi tshogde would be more of an intrusion into independent judiciary. “Allowing jabmi tshogde to recommend appointment of drangpon would also compromise the sanctity of the judiciary,” he said.
However, Ritu Raj Chhetri said that the council is only empowered to make recommendations. “The decision on whether to accept the Bar Council’s recommendation or to trash it directly without even considering it is up to the National Judicial Commission,” he said.
Existing lawyers fulfilling the criteria will by default be registered as jabmis.
“Lawyers who fulfill the criteria to become jabmi till the enactment of this act shall be automatically registered as jabmis. Upon the enactment of this act, except the former drangpons, the lawyers shall pass the bar examinations to qualify as jabmis,” states the new section after section 19 of the bill.