Highlights major challenges 

Law: The Judiciary will never remain free from deciding whether the country’s legislations are coherent with, or offends the Constitution.

This, as per the Judiciary’s annual report, comes with the concept of Constitutional supremacy over Parliamentary supremacy.

Highlighting what His Majesty had said; “The Judiciary cannot seek solace in the arguments that defects in laws are a legislative responsibility, and remain a mere spectator,” the report states that the High Court and Supreme Court has till date engaged to prevent inconsistencies in the laws affecting common people.

For instance, when the Supreme Court decided the first Constitutional case in 2011, apart from the verdict, the court also cleared the confusion with regards to the money bill.  It interpreted that the assembly might consider recommendations of the council, but need not necessarily incorporate them on mater pertaining to money bill.

Likewise, sources said that the Judiciary has been informally holding dialogues with parliamentarians to amend certain laws that offends the Constitution and contradicts other laws.

Challenges

However, in doing so, the judiciary is confronted with few challenges.  In interpreting the vague or conflicting statutes instead of merely applying the provision, providing effective and efficient resolution of complex disputes is seen as a major challenge.

The judiciary, the report states will also have to adapt to the evolving social change and retain its social position of independence and public trust. The Judiciary also highlighted that increasing public understanding on the role of judges and court system is important but considers challenging.

The report points out that Bhutanese have limited understanding of the operation of court systems and perpetuating public trust in changing society is identified as a recurrent challenge.

For example, appeal system to the higher judicial authority is designed to remedy the aggrieved litigants. But this has been associated with silly complaints against the judicial personnel.

Without considering facts and circumstances, the report stated that over the years, people started to allege baseless, generic and stereotyped criticisms.

High Court justice Lungten Dubgyur’s recent book, “Wheels of Laws” sheds some lights on the generic criticism the courts face when decisions of lower court and appellate court varies.

“Disparities in sentencing are perceived as an indication of judicial bias or a discrepancy in legal skill,” he wrote. In some circumstances, he wrote, inconsistency can arise when there are overlapping or contradictory provisions of law, causing difficulties in application of law.

He also mentioned that the unpredictable and changeable nature of laws undermines broader values of rule of law in ensuring that government and individuals are kept to the law.

It was also mentioned, in the report, that some litigants use the appeal system to harass the other party while some, mostly on monetary cases, use it as tactic to delay judgment.

The present practice of liberal application of appeal provisions by the court, according to the report, has let most of the cases to go for appeal and burdened the appellate courts by accepting unnecessary appeals.

Particularly in small society like Bhutan, making value-based decision is difficult in practice. The report states that assuring the judges to maintain distance, but preventing their isolation from community in which a judge lives, is a judicial challenge.

Unconfirmed comments on social media are also reported to pose threat to credibility of the judicial system.

Undertaking educational initiative and creating awareness on the court system on regular basis also comes at the cost of delays and adjournment of regular court proceedings because of human resource shortages.

Tshering Dorji