With the decision of the Supreme Court on the Child Molestation case from Tsirang, both social media and mainstream media are calling for reinvestigation because there seems to be a wrong conviction.

No system is perfect, and, no judge is infallible. Though Civil and Criminal Procedure Code (CCPC) does not explicitly provide provisions on reopening of the cases, it is not impossible to open given the due process of law, particularly if new evidence is discovered, or corruption exist.

Article 7 of the Constitution requires that every person whose right to life, liberty and security is deprived, it must be done only as per the due process of law established by Parliament. CCPC prescribes detailed steps of due process of law.  Section 96.4 of the Civil and Criminal Procedure Code (CCPC) states that “the judgment of the Court shall be final once rendered.” This is based on a legal principle of res judicata (any cause of action once decided, can’t be opened again).

The likelihood of a wrongful conviction is rare because of the numerous checks and balances in the CCPC. First, the prosecutor must have enough facts to convince the court that there exists a criminal case against the accused. Second, there must be evidence to support the facts. Section 96.2 of the CCPC mandates that the prosecution must prove to “full satisfaction of the Court has established a proof beyond reasonable doubt” to find an accused guilty.

The evidence must be such that the judge should fully convinced beyond reasonable doubt that the accused committed the crime. The existence of hierarchy courts and the appeal system is to further ensure checks and balances to prevent miscarriage of justice.

Yet even in the oldest legal systems like the United Kingdom or the United States with over centuries of judicial experience or least corrupted countries like Singapore or most modern systems like Australia have reported wrong convictions. For example, Central Park in New York resulted in wrongful convictions of five men, in the Henry and Leon McCollum case, the accused was acquitted after 31 years in prison.  Eastman in Australia was exonerated after 19 years, and the Australian government paid $7 million in compensation. BBC reported that UK Government paid £9 million in compensation to 16 people for wrongful convictions between 2010-and 2016 and found 84 people got wrongly convicted.

Bhutan’s justice system is young and such wrongful convictions can’t be ruled out. Most wrong convictions are either caused by flaws in the investigation. Others include public pressure to close the case faster with some evidence, or the accused is coerced to confess by law enforcement officers, due to corrupt practices, bad lawyering, and tunnel vision system.

Section 205 of the CCPC allows the motion for new trials based on newly discovered evidence or other grounds. While this provision mentions only prosecution, this should also apply to wrong convictions on similar grounds including corruption or new evidence. If the motion for new trials is successful CCPC entitles the accused to claim compensation for the loss of income caused by the prosecution also anticipates that there can be wrongful convictions.  As Blackstone said, “presumptive evidence of felony should be admitted cautiously, for the law holds that is it better than ten guilty persons escape than that one innocent suffer.”  Our justice system must be careful and cautious. They deal with human liberties and freedom.

Sonam Tshering

Lawyer, Thimphu

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