Raises question on judicial proceedings

Tshering Palden and Tashi Dema

Nearly a month after their detention, the Chief Justice of the Supreme Court through an order last week suspended Justice Kuenlay Tshering and Drangpon Yeshey Dorji.

The order stated that Justice Kuenlay Tshering was suspended from service according to Article 21 of the Constitution and the recommendation of the National Judicial Commission.  Drangpon Yeshey Dorji is suspended as endorsed by the Royal Judiciary Service Council.

With the trial proceedings already ongoing, lawyers raised questions if the trial proceedings for constitutional post holders could occur before the impeachment of constitutional post holders.

Some lawyers say that, as a constitutional office post holder, Justice Kuenlay Tshering, who was accused of abetting mutiny, commission amounting to abuse of function and obstruction of lawful authorities, should first be impeached as per the Constitution.

A lawyer said Article 32 of the Constitution states that a holder of constitutional offices should first be removed by the way of impeachment. “Then he or she becomes an ordinary citizen and can be tried for the alleged offences.”

Article 32.2 states that the proceedings for the initiation of impeachment for constitutional post holders could happen on grounds of incapacity,  incompetency or serious misconduct with the concurrence of not less than two-third of the total number of members of Parliament.

“Without an impeachment Act in place, the National Judicial Commission has to initiate the impeachment. The Attorney General has to introduce the article of impeachment to the Parliament,” the lawyer said.

However, the Office of the Attorney General (OAG), prosecuting the case, claims that prior to charging the Justice, they conducted a thorough analysis and concluded that it was legal to prosecute the Justice after considering provisions of the Constitution and relevant laws.

Officials from OAG stated that if a holder of the constitutional office was accused of any criminal offence, he or she should be tried before the court of law like any other accused to ensure equality before the law. “Impeachment proceedings may or may not be initiated depending on the outcomes of the trial,” an official said.

The official said that, in the ongoing case, Article 32.3, the ground of serious misconduct, was applicable. “However, the Constitution doesn’t state what constitutes a serious misconduct, which leaves room for interpretation based on the facts of each case and the appropriate laws that doesn’t necessitate an act to be a criminal offence under Penal Code or corruption offence under Anti-Corruption Act.”

The Constitution guarantees independence of drangpons of the High Court and Supreme Court through a security of tenure, which negates fear and retribution and prohibits Parliament from taking sui moto action and censuring drangpons, that would otherwise undermine their independence and impartiality of all external pressures and each other, besides damaging public confidence in the judiciary.

But security of tenure, according to OAG, is not a licence and prerogative to break law. “Drangpons should hold office in good behaviour and if they do not, they should be removed through impeachment. The National Judicial Commission should initiate impeachment proceedings if it believes a drangpon has engaged in serious misbehaviour,” OAG stated.

It also stated that criminal offences are worse than serious misconduct and any drangpon or justice, who committed criminal offence, should be prosecuted before the court instead of impeachment. “Impeachment is for offences that are administrative in nature and committed while executing judicial functions.”

OAG stated that drangpons must themselves obey laws to execute it as per section 15 of the Article 21 of the Constitution. “Section 154 of the Judicial Service Act 2007 states that any criminal case has to be charged to court. So, in this case, prosecution of the justice is permissible and constitutional.”

The National Council drafted the Impeachment Procedure Bill of Bhutan 2019 and deliberated it last year and sent it to the National Assembly.  But the National Assembly didn’t discuss the Bill.

The draft Bill defined serious misconduct as gross violation of code of conduct, violation of constitutional duties, wilful violation of any provision of law that substantially and adversely affected the interest of the office or conviction for any criminal offense and being sentenced to imprisonment.