Judiciary is independent without independence – A necessary reform

The appointment of the new Chief Justice of the Supreme Court (SC) comes at the right time when the judiciary is not sailing well due to several negative audit reports and now the Wamrong case. While the judiciary suffers from numerous systemic flows, they are also facing enormous challenges, the lack of control on human resources and financial constraint being among others. The Judiciary Service Act (JSA) was enacted in 2007 to ensure “judicial independence, reduce dependency, attract the best candidates with optimal professional qualifications, provide financial security, motivate the Judiciary to concentrate on the administration of justice and application of equal pay for an equal value of work.” Further, Section 2 and 3 of the JSA aimed to promote “caliber, efficiency, and effectiveness, ensure dignity, high competency and integrity”. This still seems to remain a distant dream.

Section 62 provides positions in the judicial personnel where the Registrar General (RG) of the SC and Chief Drangpons of the Dzongkhag Courts at EX1, the RG of the High Court and Dzongkhag Drangpons at EX2, the Registrar of the HC  and the Drangpons of Dungkhag Courts at EX3 and Drangpon Rabjams at P1 level position. However, currently of the total 37 Drangpons including RG and Chief Drangpons, two Drangpons are in EX3 and five are still in P1 level. Similarly, of the total 11 Drangpon Rabjams mostly who are Drungkhag Drangpon, only one is in P1 level while six are in P2 and four are in fact only at P4 level.  Further, except courts in Thimphu, Paro and Wangdue, there are no registrars (professional lawyers) to help the judges and manned by the senior bench clerks impacting the quality of judgments.

The existence of such different  ranks is discriminatory and violates Section 62 of the JSA. Since these officers perform same responsibilities (judicial, administrative and fiscal) and accountabilities of those in higher ranks as Drangpons in their respective Dzongkhags or Dungkhags, the deprivation of their entitlements contravenes the principle (S.156) of “equal pay for an equal value of work” and Article 7(11) of the Constitution, the fundamental right to equal pay for work of equal value. The High Court should have both a Registrar and RG (S. 76-78) , but is currently manned by a junior lawyer performing the duties of both without any additional benefits. Adding fuel to fire, except the Drangpons and Drangpon Rabjams, the entire judiciary personnel is still determined, controlled, and dictated by the Royal Civil Service Commission.

The judiciary also received a meagre budget of Nu.385.014million of the total outlay of 64,826.725 million (2019-2020) accounting for less than 1% while RBP alone under Home Ministry received Nu.1,921.936 million. Judiciary generated over Nu 30 million in revenue in 2019 through their services.

Article 1(13) of the Constitution makes it clear that there shall be a  separation of power among the Executive, the Legislature and the Judiciary and Article 21 mandates the judiciary to “safeguard, uphold, and administer justice fairly and independently without fear, favour, or undue delay to inspire trust and confidence and enhance access to justice.” Without any independence of judicial personnel and financial autonomy, how will the judiciary fulfil this massive mandate?

Thus, sealing these cracks and strengthening judicial independence particularly in terms of human resource and financial autonomy will be the major reform expected from the new Chief which will have a rippling effect on the efficiency and quality of judicial service.

Sonam Tshering

Lawyer, Thimphu

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

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