…to deliver justice and upholding the rule of law
Tshering Palden & Tashi Dema
Going by the Royal Audit Authority’s (RAA) review of judiciary system and practices, the judiciary needs to make significant reforms to deliver fair, just and equitable justices.
The report, issued in June 2019, which is still not accessible to the public, highlights numerous shortcomings that require remedial measures in both case management procedures and practices and legal and institutional framework.
RAA noted inconsistent case management practices in courts, as there is no standard to assess the performance of the courts, timeframe to dispose cases, fixed number of summon orders and rebuttals in trials.
There were also inconsistencies in the issuance of summon orders and bail amounts.
The hearing schedules in dzongkhags and drungkhags, according to the audit report, depends on the preferences and conveniences of the bench clerks, prosecuting agencies and the litigants, hampering the fairness and timely delivery of justice.
It also found unsystematic and ineffective scheduling of case hearings, as courts do not schedule hearings using hearing calendar. “The current practice of scheduling the hearings in trial courts is constantly associated with arbitrary changes based on preferences and convenience of the clerks leading to prolonged delays.”
There is no effective case registry system, as there are instance where courts entertained re-litigation of cases that are already decided or are pending before other courts. The practice violates section 127 and 115 of the Civil and Criminal Procedure Code (CCPC).
Without any mandate for courts to follow up on their judgement of civil cases unless an aggrieved party moves the court, there is no guarantee that all judgments of civil cases are effectively enforced.
RAA also found that there is no responsible institution to enforce civil case judgments.
It stated that the effectiveness of the court largely depends on how effectively their judgments are enforced but in the present judicial process, there are no mechanisms instituted to ensure effective implementation and ascertain the status of court judgments unless aggrieved party moves the court against defaulting party. “There is risk that some judgments passed are not implemented.”
There is no system instituted in the judiciary to assess and report on any inconsistencies in court decisions. Disparities in judgment between different levels of courts may invite unnecessary public criticism undermining the credibility of the judiciary.
RAA recommended the need for judiciary to institute a system to monitor, evaluate and report on any inconsistencies in judgements between different levels of court to inspire public confidence and enhance the credibility of the judiciary.
It was stated that although the appeal process mandates higher courts to clarify and interpret the law and correct the lower court’s errors, it doesn’t happen.
With relaxed appeal system, where litigants need not specify reasons for appeal and appellate courts accepting it irrespective of whether the case has legal basis or not, litigants to misuse the system for personal benefit. It also provides room for court officials to involve in undesirable practices.
Most of the appeal cases are monetary cases, as the right to appeal provides respite to the defaulting party but it affects the other party in getting justice on time.
In the administration, verification of current practice showed that 16 drangpons were not transferred from a place of posting even after three years although section 225 of the Judicial Service Act mandates it. About 59 bench clerks remained in the same place of posting for more than five years although BCSR stated they should be transferred within four to five years.
“Prolonged stay of judicial personnel in a particular place may result in unwarranted developments and transfer of experience and knowledge may not be feasible,” RAA stated.
There were no proper basis for sitting fees paid to the members of Royal Judicial Service Council and the rules and regulations for the payment of sitting fees was framed and adopted by the Supreme Court without consultation with the finance ministry.
RAA pointed out that judiciary doesn’t have a system instituted to declare conflict of interest by sitting drangpons until they declare it themselves although section 73 of the CCPC 2011 requires a case to be assigned to a drangpon who may not have or reasonably construed to not have a conflict of interest in a case. “In absence of transparent system of declaration of conflict of interest instituted, there is no assurance of general compliance of this import requirement by all drangpons.”
There were also no requirements for bench clerks to declare their conflict of interest in a case although they play a vital role in the case and its proceedings.
Audit also reported discrepancies in data maintenance, as the case information system and case management system used by judiciary were found unreliable. It stated that 58 percent of the data content was incorrect, incomplete and duplicate.
Meanwhile, there is hope for lawyers working in government organisations to become drangpon rabjams if the judiciary takes RAA recommendations of seriously.
The audit report stated that section 74 of the Judicial Service Act provides an option for the judiciary to appoint drangpons or drungkhag courts or drangpon rabjams from persons having served as registrar of a court for four or more years in succession or seven or more years as an advocate in succession. “Section 62 (F) of the Act requires drangpon rabjams to be in position level P1.”
But RAA observed that drangpon rabjams are appointed only from among persons having served as a registrar of a court and not fulfilling the requirements under section 62. “Although there was a position gap in appointment of drangpon rabjams, judiciary did not consider appointing from persons having served as an advocate.”
It recommended judiciary to appoint drangpon rabjams from government lawyers and other law practitioners recognised by the Bar Council, as the judiciary could not realise the position structure of judicial service personnel.