The full strength of appellate court- an expectation of judicial wisdom

The appointment of justices to the Supreme Court and the High Court this week marks another milestone in the history of the judiciary. Now, Bhutan has the full strength of justices in our two appellate courts. This milestone must address the lack of adequate judicial wisdom, create Bhutanese jurisprudence and access to judicial decision which remains a major obstacle among the legal fraternity in the country as well as to those foreign scholars. Though Section 96A of the Civil and Criminal Procedure Code (CCPC) as amended in 2011 mandated the judiciary to make all its judgments accessible in the public domain, the judiciary took no cognizance of this mandate.

 With the full strength, Bhutan has one of the highest justice to population ratios. For example, the U.S. Federal Supreme Court has nine justices for a population of 330 million people, India 34 for 1.2 billion, Japan 14 for 126 million, and Singapore has 14 justices for 5.7 million people. The Annual Judiciary Report 2019 revealed that only 646 cases got appealed to the High Court and 68 cases to Supreme Court out of 6,606 cases decided by the lower courts. Contrary to ours, Indian Supreme Court had 59,867 in 2019 for just 34 justices. Thus, one justice in Bhutan has 14 cases whereas one Indian justice has over a thousand cases a year. Moreover, our justices are equally highly qualified, possess enormous experiences and exposure.  

 Article 1(11) our Constitution empowers the Supreme Court as the guardian and the final authority on the interpretation of our constitution and Article 21(10) authorize the appellate courts to “issue such declarations, orders, directions or writs as may be appropriate in the circumstances of each case.”  In spite of these extraordinary authorities vested in our appellate courts, observations from the available decisions, our appellate courts remained similar to lower court (fact-finding court).  An important doctrine such as judicial review authority is provided to “perform monitoring and coordinating functions which serve the function of a whistle blower or fire alarm and also helps provide the people with reliable and proper justice and take action against usurping governments.” However, this doctrine still remains almost redundant in Bhutan. 

Section 95 of CCPC provides that “if a case is heard by more than one Drangpon, the decision of the majority shall prevail” and Section 95 (c) ensures the right to dissent in the judicial opinion following the opinion of the majority.”  This provision though not explicitly mentioned but in practice can be used only by the appellate courts.  The right to “dissent is a very valuable part of the judicial process” in the appellate courts displaying the divergence of opinions among the justices and all arguments have been fully considered. It is further said that because dissent is “for the writer of the majority.” Justice Ginsburg said, “the value of dissenting opinions in persuading future generations to correct perceived injustice, dissents speak to a future age. The greatest dissents do become court opinions and gradually their views become the dominant view.” 

 Therefore, we hope that now our appellate courts will propound and enrich our legal system beyond the duties of ordinary courts or trial courts to develop and create our own legal pearls of wisdom and jurisprudence based on our customary laws, national values,  Buddhist principles, social fabrics and our unique developmental principle of Gross National Happiness.

Sonam Tshering

Lawyer, Thimphu

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

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