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Should presumption of innocence restored and conviction held in abeyance upon appeal?

The legal turmoil this week has been whether the Home Minister should resign during the pendency of his appeal because he was convicted by the trial court. 

This situation is not unique to Home Minister’s case. Thus, it merits a discussion.  The intricacies of whether an appeal amounts to suspension of decisions of lower court in whole or partly remains a subject of interpretation among many legal fraternities. 

For example, both Kuensel and The Bhutanese quoted a legal expert who asserted that the presumption of innocence ceases and conviction remains once the trial court has convicted him. This interpretation does hold some truth because the trial court decided the case and the judgment has become final if not appealed. The trial court would have taken into consideration the facts and circumstances and evidences to prove those facts the parties have brought before the court and prosecutor has been able to convince the court beyond reasonable doubt on the charges made against the accused. 

Appeal is merely a confirmation or rectification of either in parts or in entirety.

However, there are others who interpret otherwise.  A renowned legal scholar said that an appeal was based on “the principle that all men are fallible, and judges are human beings who may commit a mistake and a judge how has not committed an error is yet to be born”.  Another legal scholar, Neil Andrews, also stated that “the legal system of every civilized country recognizes that, judges are fallible and provides machinery for appeal in some form or another.”  This means “an appeal is a continuation of a suit” where the judgment of the higher court would be presumed to be passed by the trial court and Home Minister is legally right to hold the office as he is still presumed innocent.

Further, Section 109(2) of the Civil and Criminal Procedure Code of Bhutan states: “while the appeal is pending, all awards for damages and other settlements related to the Court’s decision shall be held in abeyance”. 

Therefore, the moment the person files an appeal, the decision of the trial court gets suspended and the proceedings continue in the higher court. This also means presumption of innocence until proven guilty gets restored until the outcome of appellate court.

It is also based on the principle that the lower courts have less experienced judges and generally a single judge makes decision and that the appellate courts are generally of far more experienced and can refine and develop better decisions. Appeal also means to “persuade a higher court that the trial court was wrong” and rectify the errors or uphold the decisions of the lower court.

However, unrestricted right to appeal has its own demerits. The appellant can buy time, differ to pay damages or compensations, alimony or to differ the negative political impacts due to court decisions. It may also be due to vested interest by lawyers to increase their fees or to disadvantage other party such as to harass or incur more cost for the respondent.  Therefore, while appeal provides a path to rectify the errors of the lower courts, it may also amount to injustice.

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel or JSW School of Law.

Sonam Tshering

Faculty of law at the JSW School of Law.

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