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Public confidence shaken in judiciary

The year of the dog was not as fierce for the judiciary as the previous years but it did manage to grab headlines.

It started with the judiciary using a drilbu (bell) instead of the gavel in courtrooms to signify the beginning, ending, recess or adjournment of court proceedings. Judiciary officials said the use of gavel was a borrowed system from the west.

When the High Court accepted the appeal of the army officers and non-commissioned officers convicted by the military court in Lungtenphu, the judiciary was the talk of the town. The court divided the 15 cases between the three benches and started the court proceedings as total judicial review of the case.

The judiciary was closely watched when an aspiring politician, Cheku Dukpa, popularly known as Jackson Dukpa, appealed to the High Court’s larger bench after the Election Commission of Bhutan (ECB) disqualified his party, Druk Gaki Tshogpa, from contesting in the 2018 National Assembly elections.

Cheku Dukpa lost the case but won the argument. The HC ruled that the founder has not met two criteria as per the electoral laws and rules and cannot be registered as a political party.

The High Court also stated that ECB has the responsibility to conduct free and fair elections but not decide for the people, in the sense that the commission had gone beyond its mandate and judged the competency of people who formed the party. Although Jackson Dukpa appealed to the Supreme Court, he withdrew his petition later.

The High Court also relocated from Chubachu to the Supreme Court Complex, which led many to wonder how the High Court would be able to function independently.

In terms of law making, the law review taskforce instituted in 2015 to review and propose changes to harmonise conflicting provisions of laws with the Constitution and other laws recommended 29 Acts to be amended. The task force recommended a repeal of 15 Acts and eight for consolidation. It also recommended eight new Bills for enactment.

The taskforce was assigned with the task to reduce the legislative burden on people. The Supreme Court issued a writ in August 2016 to harmonise the Election Act 2008 and the Local Government Act with the Constitution.

The taskforce report stated that the Civil Service Act of Bhutan 2010, Mines and Minerals Management Act 1995, Medicines Act of Kingdom of Bhutan 2003, Immigration Act of the Kingdom of Bhutan 2007, Royal Bhutan Police Act 2009, The Pesticides Act 2000 and the Civil and Criminal Procedure Code of Bhutan 2001 are not consistent with the Constitution.

It stated that of the 98 legislations operative in the country, some were enacted before the adoption of the Constitution, making it inconsistent with the supreme law of the land. But nothing has been done to harmonise the law to date.

The much-waited desuung judgments were deferred during the election period after giving judgment for one case, which altered the military court’s judgment. When the judgments were given, it was a complete alteration of the lower court’s judgment.

The HC ruled that adjustments which were routinely done are not embezzlement, citing section 66 of the Evidence Act of Bhutan, which states, “Evidence of the habit or routine practice of a person or a corporation is relevant to prove that the conduct of that person or corporation on a particular occassion was in confirmity with the habit or routine practice.

The High Court’s larger bench dismissed the appeal of Anti-Corruption Commission (ACC) in the desuung case claiming that it is against the Constitution since ACC is the investigating agency, not a litigant and thus do not have the right to appeal against the judgment. However, the Supreme Court issued an order to register the case, follow due processes and registered ACC’s appeal.

While the Supreme Court stated that the litigants need not discuss the locus standiof ACC, given that the Court accepting the case meant it had, many were baffled with the precedence set.

It also left people questioning if there was any accountability in the judiciary and if the judges and justices could register and dismiss cases based on their whims and fancies.

The judiciary received much flak after courts, according to observers, passed lenient judgments in cases involving sexual perpetrators of minors.

Thimphu dzongkhag court’s child and family bench sentenced the vice principal of Bjimina school to 10 years in prison for child molestation.

The vice principal, Ugyen Wangchuk, 39, who taught Mathematics at the school molested nine girl students. The defendant had a criminal record and had served two years in prison and paid thrimthue for the remaining three years in 2007.

Gelephu drungkhag court gave a four and half year concurrent sentencing to a teacher of a remote school for molesting six girls, aged 12 to 17, even though he was actually sentenced to 24 years and six months.

Netizens took to social media to express concerns on the judgment. Prosecutors stated that the state seeks retributive justice on behalf of the aggrieved victims and the punishment given must satisfy not only the traumatised victims but also serve security interest of the public members.

However, the prosecutors have also dropped many child molestation cases for want of more evidences to charge the perpetrators. Officials working for women and children said OAG’s blanket evidential test does not provide any consideration for child victims and do not even accpet circumstantial evidence.

OAG officials said they cannot prosecute a case just because the victim is a child and that they require other elements as proof. Officials then said while they would want to prosecute every single case of child molestation, they couldn’t do so without evidence and that there is no way they could prosecute a case just because the evidence indicates a person might have molested a child.

Officials also explained that when the child is a victim, perpetrator or witness, by procedure the child should be treated differently but when it comes to prosecution, the standard of proof remains the same. “The standard is not lowered just because the victim is a child.”

Tashi Dema

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