Generally, the wide spectrum of legal understanding and the knowledge of law is inherently restrained to an echelon of law professionals. However, with the advent of democracy in Bhutan, people have realized that legal knowledge has become an indispensable tool as it plays a vital role in transitional democracy and strengthening of the rule of law. Similarly, the need to understand the clear role of a Jabmi in the Bhutanese legal system has become paramount.
Jabmi literally means a person who stands on someone’s behalf or somebody’s back and roles played by them are both judicial and quasi-judicial. Over the years, and particularly with the loose application of its meaning, and with its literal interpretation, the definition of a ‘Jabmi’ has entailed varying legal responsibilities.
This article attempts to explain the complex roles played by Jabmis in the traditional and modern legal settings in the administration of justice, and contextualize the intended legal responsibilities of a Jabmi.
Traditional role and statutory origin of a Jabmi
The most revered traditional role of the Jabmi is the practice of mediation Nangkha Nangdrik or Dumdrik, and hence, was never perceived as what the modern law refers to Jabmis as lawyers alone. However, the 14th century text of Tertoen Karma Lingpa’s ‘Bardo Thodrel’ enumerates the presence of Lha Karpo in the trial of the sinner or the virtuous one, who represents and submits on their behalf in the court of Lord Purgatory (Shinge Choki Gyalpo), the role which arguably befits a Jabmi or any modern day defense counsel.
Traditionally, and which continues to be relevant even today, the practice of mediation with the help of Jabmis has not only helped shape our legal system but also contributed to promote peace and social harmony, which reflects the essence of Buddhist philosophy and our ways of life. Prior to the enactment of modern laws, the Buddhist philosophy was of pivotal essence because it teaches us to be kind and compassionate through the limitless practice of ‘Tsemed Zhi’- the four unlimited practices. It encompasses compassion (Jampa); empathy/sympathy (Ningjyed); happiness (Gawa); and equanimity (Tang nyom). Based on these concepts, most of our laws and policies are framed to ensure ‘Bangi Desung’ or public peace, ‘Chigdrel/Thuendrel or Thuenlam’ or unity of the people, neighbourliness and harmonious living, ‘Lay Judrel’ or cause and effect‘, ‘Namin’ or Karmic consequences, ‘Tha Damtsi’ or being faithful and the promotion of virtue and ‘Driglam’ or conduct.
One of the main aspects of the code of conduct popularly referred to as Driglam Nam Zhag encompasses the three most important ‘Choaipas’ or requirements of a person through body (Lue), speech (Ngnag) and mind (Yid). Former Chief Justice Lyonpo Sonam Tobgye explains the six precepts of the code of conduct:
The way one associates and behaves (Namzhag)
The way one compromises (Drigni or Thuendrel/driglam)
The way one eats or dines (Zaa); the way on conducts/manners (Chaa) or the way one treads or walks (Droh)- the three precepts (Zaa, Chaa, Droh Sum)
The way one acts or performs (bey zha cha zhag)
The way one communicates (lapshey nyen sheg)
The way one listens or understands (goshey nyen sheg)
Bhutan’s sovereignty and Buddhist values paved way for a profound legal culture and justice system that defines the traditional role of Jabmis in the practice of mediation as well as other roles that the Jabmis have assumed over the years.
Recognizing the vital role of a ‘Jabmi’, the Thrimzhung Chhenmo (Supreme Law), 1959 gave the legal or statutory impetus through Section DA 3-10 where it spelt the role of a Jabmi and the validity of an agreement, contract or deed. The Thrimzhung Chhenmo was enacted by the newly established Tshogdu Chhenmo (National Assembly) of 1953 by His Late Majesty the Druk Gyalpo Jigme Dorji Wangchuck. Thrimzhung Chennmo contains seventeen chapters recognizing the concept of equality of citizens, land and property rights, trade and commerce, contractual relationship and crimes.
To ensure easier access to justice in the modern legal system, the High Court of Bhutan trained and certified about 176 traditional Jabmis in 1996. With the enactment of Jabmi Act, 2003, the Jabmis should have legal qualification recognized by the Jabmi Tshogdey (Bar Council) of Bhutan. Further, the Jabmis should have also undergone the National Legal Course or Post Graduate Diploma in National Law and must have passed the Bar selection examinations. It is a statutory requirement that those who posses law degrees are allowed to practice as Jabmis. However, those Jabmis, who were granted license continue to provide their legal services unhindered.
Evolutionary yet confused role of a Jabmi explained
Jabmi, at times, interchangeably played the role of a witness known as ‘Jab-pang’; and also plays the role of a guarantor, a representative of the party, witnesses to testify matrimonial relationship and grant of the marriage certificate from courts, signing as surety on the loan agreement when borrowed from private parties or from financial institutions. Jabmi also ensures personal surety in securing bail and bonds of the accused, and also stands as guarantor for bad debt and judgment debt. More recently, Jabmi is referred to a legal counsel (lawyer) with outlined qualifications to represent cases before courts on behalf of the litigants or the defendant in accordance with the Jabmi Act, 2003 and its amendment, 2016.
Jabmi as a witness
The Jabmis play active roles in the execution of many legal documents including settlement agreements. When Jabmis witness the execution of such legal documents, they also sign as a witness and are often referred to as Jab-Pang. Whenever legal issues arise, they may be summoned by courts to testify as witnesses. Other than being a witness to the documents, such Jabmis will not bear any legal obligation.
Jabmi as a guarantor
When a Jabmi enters into an agreement as a guarantor, it secures a legal obligation and responsibilities of a party’s performance. The guarantor gives a guarantee, which is an assurance that the debt or other obligation will be fulfilled. In the Bhutanese legal system, Jabmi often signs as a surety on the loan agreement when borrowed from private parties or when securing loan from financial institutions. In these instances, the Jabmi undertakes a legal responsibility to be bound for the performance in case of any lapses by the principal party in the payment of debts. However, these conditions must be clearly mentioned in the terms of an agreement or in a contract. Traditionally, agreements are signed, witnessed by each party’s Jabmis and if such agreements do not have any specific clause related to the legal responsibilities of Jabmis, then such Jabmis will not be held as guarantor.
Jabmi as a surety in the payment of judgment debt
Section 21(2) of the Moveable and Immovable Property Act, 1999 defines judgment debt as ‘…any sum, costs, charges or expenses made payable by or under any judgment, decree, rule or order of any Court whatever in any civil proceeding shall be deemed to be a judgment debt….’ In a plain language, judgment debt refers to a sum of money owed to a person or legal entity after the conclusion of litigation.
When a litigant (judgment debtor) fails to pay the judgment debt as per the judgment, the other party (judgment creditor) files for the enforcement of the judgment. Accordingly, the court shall under Section 28 (e) of the Civil and Criminal Procedure Code issue enforcement order and may sentence in accordance with Section 102.1(b) for failing to comply with judicial order or its non-compliance of judgment results into civil or criminal sanction. When a person or a judgment debtor is served with sentences for non-compliance with the judicial order, a Jabmi who stands as a surety on behalf of the judgment debtor may ensure the payment of judgment debt forthwith or for the future compliance with the court order. The courts often ask the party to provide personal surety when a person repeatedly fails to comply with the order particularly when it involves private borrowings while the loans acquired from financial institutions are secured through mortgage and collaterals.
Jabmi as a surety or witness in a marriage certificate proceeding
Section Kha-1-2 of the Marriage Act of 1980 provides that ‘… a person has the right to marry any other person, irrespective of status, caste, wealth or appearance, provided the persons contracting the marriage thereof have expressly consented to their marriage.’ Section Kha -1-4 provides that any couple approaching a court for acquiring a Marriage Certificate shall have to be present in person before the court along with a Jabmi or surety who should be a male for the bridegroom and a female Jabmi for the bride. As per Section Kha-1-5, such a Jabmi will be thoroughly enquired as to whether or not the intending bride or bridegroom has contracted any prior marriage and whether or not any provisions laid down in the Marriage Act will be contravened by contracting such a marriage and have to submit an undertaking in the prescribed judicial forms 7 & 8. If the Jabmis have made false declarations, they shall be held for perjury as per the Penal Code or levied such penalties and fines as prescribed under the Marriage Act.
Jabmi as a personal surety in securing bail and bonds
Section 196 of the Penal Code explicitly states that in a case where a suspect is other than a person accused of non-bailable offence, the court may decide to release him/her on bail upon execution of a bond for such sum of money or with one or more Jabmis standing as sureties legally referred as Gyen Lenpa.
In this case, the Jabmis have to make a written submission in a prescribed judicial Form H-38 for compliance with the bail conditions. In breach of any bail conditions, the Jabmi shall be held liable in accordance with the Penal Code. In this case the Jabmis or Gyen Lenpa can be any other person including friends, relatives, parents or guardian of whom the court can rely upon for securing bail conditions.
Jabmi as a representative of a party
Section 31.1 (d) & (e) of the Civil and Criminal Procedure Code provides that any case can be filed before the court for which the registration can be effected by a victim or victim’s next-of-kin or by an aggrieved person or his/her Jabmi/next-of-kin. This provision allows Pro se litigation or propria persona or litigant in person and therefore, in our legal system a litigant can file and argue their own case and the hiring of lawyers is not compulsory like other countries particularly those that follow the common law system.
When a case is represented by the next-of-kin, he or she becomes a legal representative before the court with the undertaking prescribed under judicial Form H-11 & H-12 with full legal responsibilities for submission before the court and for the conclusion of trial and compliance with the judicial order or decisions rendered.
Under the Jabmi Act, the usage of the term Jabmi is restricted to a lawyer or legal counsel. However, the contextual understanding of the roles of a Jabmi (not necessarily a lawyer) and their practices is so much engrained in our legal system and cannot be ignored.
As enshrined in the preamble of the Jabmi Act, justice is the primary source of peace in the Kingdom and to promote this noble goal, the pursuit of seeking truth and justice invariably vests to the legal counsels as well as the continuous responsibilities played by our traditional Jabmis in our communities. This article primarily pointed out the differing roles and responsibilities shouldered by Jabmis, and the dynamism of the concept and its application. Over the centuries, Jabmis have helped promote and protect the rule of law in the kingdom and their legal assistance will continue to help in providing justice. In this essence, the multiple roles played in each case by the Jabmis are inherent in our traditional legal culture, and hence justify the unique evolution of our own legal system, legal sovereignty and our nationhood.
Contributed by Lungten Dubgyur
Royal Court of Justice
High Court of Bhutan11