Judgments are public documents, not judicial secrets 

As per the Annual Judicial Report 2019, the judiciary decided 9,216 cases in 2019 of which only 68 cases reached the Supreme Court. This is an impressive achievement on the part of the judiciary. With only 159 cases extending beyond one year is something to be proud in the Bhutanese legal system. Even in most advanced judicial systems, such speedy hearings are a distant dream. However, the decisions of the courts remain a secret document within the domains of respective courts.

Section 96A of the Civil and Criminal Procedure (Amendment) Act, 2011 states “the judgment of the Court shall be made accessible in the public domain which shall include libraries.” This provision recognizes the judgments of the courts as public document. Though this provision does not provide exemptions, it will not be wrong to restrict access to certain judgments such as affecting national security, trade secrets or family matters.  However, it has been more than nine years since the amendment that the judiciary has not been able to implement this obligation. Reiterating the same concern, the Royal Audit Authority’s report on the “Review of Judiciary System and Practices, 2019” stated that the judgments still remain restricted from public access which is in contravention to Section 96A of the CCPC. RAA recommended that the “judiciary enhance the accessibility of judgments to the public for transparency and to facilitate legal research.”

First, the judgments are the final decision of the court proceedings of a dispute or controversy where the rights, obligations and remedies are determined. The judicial decisions are reached by following due process of law where the parties present facts, evidence and the courts apply the relevant laws.

Second, judicial decisions play a pivotal role in people’s confidence in the system. The Article 21(1) of the Constitution envisions the judiciary to “safeguard, uphold, and administer Justice fairly and independently without fear, favour, or undue delay in accordance with the Rule of Law” to build public confidence.  This is manifested in the form of judgment and public access will clear suspicions in the people’s mind. 

Third, Article 1(1) of the Constitution states that “Bhutan is the Sovereign Kingdom and the Sovereign power belongs to the people of Bhutan.”  Therefore, all arms of the state are accountable to people. The parliament broadcast every parliamentary session live on television and radio. Further, there is an opposition party to ensure check and balances. Similarly, Lhengye Zhungtshog conducts meet the press frequently and is subject to much more vigorous audit scrutiny as most of their decisions are administrative or financial. These does not apply to the judicial decisions because Section 5 of the CCPC ensures non-interference in decision making authority of the courts in any dispute.

Fourth, the Annual Judiciary Report 2019 highlighted that “judiciary is always guided by its vision of inspiration of trust and confidence of the people and access to justice” and decisions of courts divide people because one party wins and other loses unlike political decisions. Public access to judgments will help people understand the rationales behind each decision and also help researchers to conduct research on Bhutanese law.

Lastly, since all judgments are drafted electronically, it is not difficult to publish those decisions on the judiciary website.

Sonam Tshering

Lawyer, Thimphu

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

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