In the quest for justice, language plays a crucial role in legal systems worldwide. While there remains a prevalent mandate establishing Dzongkha as the official court language in our system, it is essential to examine whether this linguistic requirement aligns with the fundamental principles of fairness and equality inherent in the legal process. Article 21 of our Constitution entrusts the judiciary with the responsibility of safeguarding, upholding, and administering justice fairly and independently, without fear, favor, or undue delay, in accordance with the rule of law, to inspire trust and confidence and improve access to justice.
Two fundamental constituents are integral to the dispensation of justice: due process and the foundation for reasoned decisions. Due process encapsulates equitable and unbiased treatment under the law, encompassing procedural entitlements such as the presumption of innocence, legal representation, and the right to proffer evidence, etc. Concurrently, the decisions themselves must find grounding in the application of substantive laws construed by the judiciary.
The decision to incorporate both Dzongkha and English is driven by important considerations. Bhutan’s democratic journey led to the adoption of a new Constitution, which, while rooted in indigenous values, also drew inspiration from diverse global constitutions, incorporating principles from various legal systems worldwide. Even core laws like the Penal Code, Civil and Criminal Procedure Code, Evidence Act, and Contracts Act are essentially borrowed from other legal frameworks, making their translation into Dzongkha quite complex. This complexity is further compounded by the intersection of technological advancements and legal complexities, including AI, robotics, fintech, and SMART contracts.
Promoting Dzongkha by conducting court proceedings and delivering judgments in the language faces significant challenges. The complexity of legal terminology in Dzongkha makes it difficult for legal professionals to effectively communicate intricate concepts, both among themselves and for public understanding. This complexity appears to contradict the primary goal of promoting and preserving Dzongkha.
Legislations are typically initially drafted in English and then translated into Dzongkha before being submitted to Parliament.
Additionally, since most judges and lawyers have been educated in common law or civil law systems, there is a natural influence from Western jurisprudence. The Criminal and Civil Procedure Code (CCPC) mandates reasoned decisions, requiring judges to explain legal reasoning based on established principles—an aspect currently lacking clarity in the existing system. Translating these rationales into English poses a significant challenge for judges, especially considering the high volume of cases they handle annually.
Considering the establishment of Gelephu Mindfulness City and the pivotal role of ease of doing business in attracting foreign direct investment, our legal system assumes a pronounced role in projecting an alluring image. Alignment with evolving legal complexities and international standards demands a critical re-evaluation of the language mandate. The exploration of bilingual court proceedings in both Dzongkha and English emerges as a potential means to reconcile national identity preservation with effective global legal communication.
These reforms could enhance Bhutan’s appeal as a favored jurisdiction for global dispute resolution. While promoting Dzongkha is vital for preserving national identity, the courts’ primary focus must remain on justice and maintaining public confidence, as outlined in Article 21 of the Constitution.
Therefore, if the technical complexities of Dzongkha hinder both its preservation and the delivery of justice, a pragmatic approach prioritising effective communication, such as English, may need to be considered.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.