ACC workshop delves into the intricacies involved in such judicial incidences
Judiciary: Concerned over a conflict of interest, Haa district judge Duba Drukpa is doubtful whether he can sit over the Lhakhang Karpo case, once it is registered with the court.
District judge Duba Drukpa is a dorjipuen (spiritual sibling) of the foreign minister Rinzin Dorje, who is involved in the case.
He said he would declare his conflict of interest to the chief justice once the case comes to him.
“I’ll have to submit and abide by the instructions from the chief justice,” Haa district judge said.
However, judges, during a workshop organised by the Anti-Corruption Commission on the subject recently, said conflict of interest is unlikely to hamper delivery of justice, as there are enough check and balance measures in place, judges said.
“There are higher courts to keep check and balance on the judges and their judgments, though,” a Thimphu district judge said, adding that, if found, there are serious consequences. Besides, parties to the case could also point out should there be any conflict of interest for the judge in the case.
“As is the norm, I always declare what might appear as a conflict of interest in the case, and ask the litigants if they’re alright with me deciding the case,” another judge said. “If they aren’t, then they appeal to change the judge.”
The workshop’s host and legal development consultant, Richard E Messick, said the definition of the word interest was not defined in Bhutanese law or any other law and that could be a problem for the courts.
Judges however said it was deliberately left open for a liberal interpretation.
Of the two types of conflict of interest, organisational and perceptual, the latter was difficult to define.
While laws can be formed for organisational one, it has become a problem to dealing with perception conflict of interest, judges said.
Men embroiled in matrimony cases choose male judges, a lady judge revealed at the Anti-Corruption Commission’s conflict of interest workshop for judges on January 14. She said they fear women judges would be stricter, so they appeal for a male judge.
“This kind of conceptual conflict of interest would be difficult to point out,” a judge said.
However, such cases occur mostly in the capital.
Dzongkhags having only one judge is a problem, in case there is a conflict of interest for the judge in the case. At one time, both the Wangdue and Punakha judges could not sit over a case and the high court asked the Gasa judge to do so. However, there is no cost for the litigants, as the judge from other district moves to the district where the case is registered.
The problem, according to them, is that the majority of litigants represent themselves, and they have poor understanding about the law, or conflict of interest in particular.
“In most cases, I have to explain the law repeatedly,” a judge said. Lawyers represent only about five percent of the cases in the country, he said.
The losing party would always have a reason to point out conflict of interest but judges said there has been no reasonable appeal regarding the conflict of interest.
“It could also be used to avoid a strict judge,” a participant said.
A judge said it also has a lot to do with the maturity of the society. If the judgment were against a person, then the person would somehow come up with some allegation, either through conflict of interest or other means.
Is it a conflict of interest for the judge, if he has an account in the bank, and the bank is one of the litigants? Not necessarily.
Judges said the debate never ends on how much the code of conduct for judges could be applicable for their family members. “Because they also have their own businesses too,” a judge said.
In the end, there is no one to defend the judge in all matters. “So our conscience is the internal guide and our judgment its external manifestation,” a district judge said.
By Tshering Palden