Right to Jabmi of one’s choice is a fundamental right under the Constitution. The State has the mandate to provide legal aid to those who can’t afford to engage the Jabmi. However, quite often, many Bhutanese are not able to decide when to engage Jabmi. Some wait until everything goes wrong with case.
The modern legal system is fairly recent in Bhutan and engaging jabmi (lawyer/legal counsel) is even more recent. However, the business of jabmi hiring is increasing as society becomes more complex. First, in the case of Criminal Offences, the case will be prosecuted by Royal Bhutan Police if the offence charged is a petty misdemeanor (less than one-year imprisonment) and the rest are prosecuted by the Office of the Attorney General (OAG). Thus, in the case of criminal cases, one can hire defence counsel (jabmi) to defend the accused. While most legal systems require jabmi as mandatory, and parties can’t represent themselves in court in case of civil disputes, the Civil and Criminal Procedure Code of Bhutan allows not only the litigant himself/herself to initiate suits but also his or her joint family or jabmi of his/her choice.
The judicial process or adjudication is a process of telling the story to the court; whoever can convince the judge better wins. The storytelling involves three important steps. First, the party must be able to narrate a detailed fact about the case to the court which should contain the background of the case, issues or disputes involved and kind of remedy. Second, the party asserting claims and rights must provide evidence to prove each claim during the proceedings. In the case of criminal offences, the entire burden to prove the case beyond a reasonable doubt is on the prosecutor and defence counsel to protect the substantive and procedural rights. Third, the judge, after understanding the facts and issues or disputes and examining the evidence against each claim, applies the appropriate legal provisions from the relevant laws and interprets these provisions in light of facts and evidence submitted by the parties through the interpretation rules which includes invoking numerous judicial or legal principles to ensure justice for the parties.
This type of storytelling requires not just knowledge of facts and issues but also relevant laws. The jabmi preferably must be engaged as soon as dispute commences, or when one gets arrested in case of criminal prosecution. If not, the best time to consult or engage jabmi is during the trial in the lowest courts such as dzongkhag or drungkhag courts.
First, on appeal, the likelihood of complete reversal of lower court decisions is rare and minimal. Second, technically the appellate courts are limited in their authority and scope. The appellate courts are only expected to rectify any error made by the lower court, particularly in the interpretation of the laws (questions of law and not fact). Third, no evidence is generally permitted to be produced in the appellate court as appellate courts are there to review the lower court’s decision and not to conduct full proceedings.
The primary purpose of hiring jabmi is “to protect and establish their rights and to defend them in all stages of proceedings” both substantive and procedural rights of the parties.
Disclaimer: The views expressed in this article are author’s own.