PART I ‘My primary responsibility was to ensure the independence, efficiency and effectiveness of the institution of judiciary’

Face2face Feature

In an interview with Business Bhutan’s Chencho Dema, Chief Justice of Bhutan, Lyonpo Tshering Wangchuk, talks about his journey, the role he played in the judiciary, and other judicial issues.

Q. What are your reflections on your term as Chief Justice?

A humbling experience to be appointed as the Chief Justice and was very excited about the challenges and opportunities ahead. I believed that ensuring the quality of the Supreme Court judgments was my primary responsibility. However, one is always wise after an event – I have now realized that deciding cases in the Supreme Court is important, but my primary responsibility was to ensure the independence, efficiency and effectiveness of the institution of judiciary as a whole. Therefore, the Judiciary continues to undertake periodical reforms – designed and implemented to strengthen the institution.

The post has been the greatest privilege and honour of my life. I owe a huge debt of gratitude to the Throne for the trust and confidence reposed in me, despite my limitations. I am also grateful for the prayers of my late parents, support from my family members, and my wife for her companionship and for taking care of the home front, despite being a working mother. I remain grateful to my senior colleagues, the Judges and staffs of the Judiciary for their support, friendship and understanding in helping me become better in dispensing my responsibilities as the Chief Justice.

Being appointed to the first Bench of the newly established Supreme Court a creation of the Constitution with the opportunity to deal with constitutional issues from the onset of our fledgling democracy, and having served under all the three former Chief Justices of Bhutan is a source of pride and greatest joy of my life. Witnessing the progression of the Judiciary and to be part of Judiciary both pre and post adoption of the Constitution has made my journey as a legal professional from a trainee officer to being the Chief Justice of Bhutan a wonderful experience, witheducational and personal development both as a human being and a professional.

To be remembered for your work will be an honour, but I have always believed and shared with my colleagues that more important is to be satisfied with the work you have done with a clear conscience. Steve Jobs said that “the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.” Under the benevolent guidance of His Majesty the King, I have derived absolute satisfaction, in undertaking my responsibilities as the Chief Justice and would like to believe that whatever, I did – I did it with a clear conscience, conviction, and passion. I have always aspired to do the best – other than absolute and infinite satisfaction – regrets I have none. Consequently, I have always been conscious that as Chief Justice or a Judge, one cannot be expecting to win a popularity contest.

Q. What were the major reforms in the Judiciary during your term?

Reforms are a continuous process and never static (even water if stagnant stinks), and it is never truly a reform, unless there is a means of measuring progress toward the anticipated changes. The Judiciary has always aspired to anticipate and identify challenges facing the Courts to formulate and adopt innovative policies and programs in response to the Royal concerns and vision of His Majesty the King (conveyed through national speeches, Kashos and commands), and the ever changing circumstances and sophistication of the Bhutanese society.

The judiciary has constantly aspired to take advantage of the opportunities available to make interventions and initiate necessary reforms to make the institution more responsive to the needs and expectations of the people as a service oriented branch of government. Consequently, a strong, efficient and effective justice system is key element in ensuring a free, fair and just society – a civil society that is whole, secure and with a government that is capable to promote the general welfare of the people.

Some of the major reforms initiated and implemented with the support and assistance from the other branches of government and agencies that come to mind include:

1) Streamlining judicial process and coordination with the National Land Commission in matters related to the implementation of the 2007 Land Act;

2) Developing and implementing the process of issuing Marriage Certificates to Bhutanese married to foreigners in consonance with the relevant provisions of the Marriage Act, 1980;

3) Standardization of procedures and application of procedural laws based on the premise that the CCPC 2001 is a uniform code and that similarly situated people must be treated similarly through periodic orders issued from the Office of the Chief Justice;

4) Development of human resource and court infrastructure – which is a continuous and ongoing process in collaboration with the Government and funding agencies from abroad;

5) Establishment of the Green Bench in the High Court to commemorate the 60th birth anniversary of His Majesty the Fourth DrukGyalpo with special procedures to accept Public Interest Litigation (PIL) interpreting the triangle of constitutional provisions related to environment – Article 5 Section 1, Article 8 Section 2, and Article 21 Section 18. The concept of allowing PIL in environmental matters, is a departure from the strict requirement of locus standi or legal standing required in filing cases in all other matters;

6) Establishment of Specialized Benches in ThimphuDzongkhag Court to commemorate His Majesty the King’s decade on the Golden Throne. The reform was initiated with the belief and conviction that Specialized Benches will facilitate in rendering speedy, fair and just adjudication in all corruption and criminal matters prosecuted by the OAG, commercial and monetary matters emanating from the financial institutions, family and child related disputes and other civil matters. This specialization must bring about uniformity, accuracy, precision, predictability of judgment and informed interpretation of the laws. The Judiciary is confident that professional Specialistjudges will promote thoughtful in-depth analysis, logic, and consistency, leading to greater credibility, transparency, integrity and above all – enhance the confidence of the people in the justice delivery system.

7) Regulation of informal money lending in collaboration with the Royal Monetary Authority in consonance with the relevant provisions of the Financial Services Act, 2011 under Sections 11, 12 & 362(e) that provides for requirement of license to offer financial services and that the Authority may regulate financial services respectively. The provisions explicitly, provides for the Authority (RMA) to regulate informal lending which forms part of any services which is deemed financial in nature as defined under Section 362(e) other than banking, insurance or securities business.

8) Establishment of the Law Enforcement Joint Coordination Committee – to ensure a strong, effective and efficient criminal justice system which is an essential component of a free, fair, and just society. The committee chaired by the senior most Justice of the Supreme Court with members from other law enforcement agencies with police powers ensures building of consensus in the application of laws, due process, and adherence to the rule of law in the best interest of the nation.

9) Establishment of judicial performance evaluation system to maintain track-record of the Judges – the four Justices of the Supreme Court are allocated five Dzongkhags, which is to be rotated and reassigned annually. To ensure accurate assessment, the Justices visit the assigned Dzongkhags once each year and observe hearings conducted by the Judges, hold discussions with Judges, staff and if possible court users, evaluate three best judgments selected by the Judge and three judgments randomly picked by the Justice in-charge. The track-record generated through this process is to be used to initiate improvements in the performance of the judges and as a basis for recommending candidates to the constitutional positions in the Judiciary by the National Judicial Commission.

10) Use of the Gavel replaced with Drilbu and Dorji in the Courts – in keeping with our Buddhist heritage and traditions.Drilbu (wisdom) and Dorji (method) is now used in the Courts to signify beginning, ending, recess or an adjournment. It is also used to bring order in the courtroom when a court user breaches the standards and rules of the hearing.

11) Establishment of court annexed mediation; research and media division; constitutional museum in the Supreme Court; and specialized criminal benches in four zones Thimphu, Punakha, Trongsa, and Trashigang to deal with ACC investigated corruption cases is a work in progress to be completed before I demit office in November 2019.

(To be continued in the next issue)

PART II

‘My primary responsibility was to ensure the independence,

efficiency and effectiveness of the institution of judiciary’

In an interview with Business Bhutan’s Chencho Dema, Chief Justice of Bhutan, Lyonpo Tshering Wangchuk, talks about his journey, the role he played in the judiciary, and other judicial issues.

Q. Criticisms against judiciary are that the Judiciary must be more accessible, efficient and people friendly. What do you have to say to these?

Dealing with change, expectation management and the efficacy of ensuring continued public trust and confidence in our legal system through accessibility, efficiency, and people friendly processes has and will remain a perennial quest for the Judiciary. On our path to progress, development and nation building, the Judiciary has an important mandate to evolve, adapt and upgrade to find ways and means to uphold the Throne’s noble vision of creating a free, fair and harmonious society.

The increasing complexity and sophistication of human affairs continue to lead to growth in legislation, administrative regulations and onslaught of litigation. Correspondingly, with economic development and advances in science and technology, our societies are increasingly, becoming more affluent, better educated and informed. Increasing awareness amongst the population has made our citizens more conscious of their rights, which is translated into greater and rising expectations. These expectations, often find expression, and articulation through opinion makers such as, political leaders, the non- governmental organizations and the media.

The new democratic culture, coupled with rapid economic development and technological advances create special challenges for the entire legal system. Technological advances, often far outpace established law and legal doctrine. Globalization and the age of social media, has increased the demand for the effective delivery of public services and invariably, influenced changes in the administration of justice. These changes have heightened the complexity of judicial workflow, the management of which is more challenging than ever before. Therefore, judges have a leadership role to play in fulfilling judicial responsibilities, and administrative duties.

In this context, the effective use of technology will be significant in supporting, promoting and enhancing the leadership skills and productivity of the judges in the face of contemporary challenges. To operate effectively, court systems require effective leadership and management at all levels, complemented by partnerships and collaboration with stakeholders, effective internal and external communications and an acute awareness of the needs of the people – we serve.

It is not just the Judiciary, but the entire Justice Sector Institutions that must safeguard individual rights of all, and promote the rule of law, while contributing meaningfully, productively and consciously to the economic and social development of the country. In the 21st century, though we still see justice tied to peace – perhaps more than ever – justice is also associated with economic and social development. In this globalized world, economic and social development is not just about the balance of payments or building of a road, school, hospital or increasing tax collection. More and more, it is about the rule of law. The rule of law is in effect, when there are meaningful and enforceable laws, when there is basic security, when there is access to justice, when those in authority do not abuse their power and when the people have absolute and unconditional regard and respect for the law. In the words of His Majesty the King of Bhutan “…failure of justice persecutes an individual, but the lack of adherence to rule of law persecutes an entire nation.”

The need to perform our constitutionally mandated and statutory roles, in a rapidly changing environment – in a manner that commands the respect and confidence of the society, will remain a constant challenge for the Judiciary. The Judiciary must continue to meet the expectations of better and faster access to justice with cost effective services – the right of the people – making it the fundamental basis for inspiring public trust and confidence. However, the challenge of perpetuating public trust and confidence in a fast changing society is hindered, may be due to the limited understanding of the operations of the Justice Sector by the general public. Therefore, to enhance public understanding, there is the need to disseminate necessary information related to the role of the various actors and institutions in the Justice Sector. The Court has the power to overrule even the most deliberate and popular decisions of the government, if it believes they are contrary to the Constitution. The acceptance and support for such court decisions must depend upon confidence in the integrity and independence of the judiciary, by the parties involved and the society at large. Consequently, legal education and dissemination of legal information using technology must be accorded greater emphasis to create awareness and enhance the rule of law, fair trial, and adherence to the due process of law, to ensure that the constitutional vision of justice is realized.

The Judiciary, although the weakest branch of the government as remarked by Thomas Jefferson, is undoubtedly one of the most important organs of the State. Although, our Justice Sector has made considerable progress, it is essential to continue to improve its performance – to meet new challenges. Often times, the efficiency and independence of the Justice Sector institutions are impeded by various constraints such as, lack of adequate infrastructure, funding, human resource needs and others. Infrastructural development, in the form of buildings designed to suit the needs of the court users, is vital for functioning independently and enhancing access to justice.

Lord Bryce commented “There is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more clearly touches the welfare and security of the average citizen than the feeling that he can rely on the certain and prompt administration of justice.” A properly resourced and independent judiciary must perform many vital functions and administer justice to citizens without fear or favour, as the protector of rights, guardian of the Constitution and its final arbiter. Besides, a judiciary that is adequately resourced must also be treated with the respect it deserves. It must be kept free from undue pressures and influence, and staffed with competent officials, well trained and imbued with qualities of independence, integrity, wisdom, competence, and right attitude. It is crucial for the sustenance of constitutionalism, due process and the rule of law and towards ensuring a relevant, intelligent, and functional democracy.

It is evident, that access to justice does not simply mean “access to courts”. Cornerstones, for access to justice must include: all state and non-state actors involved in the administration of justice; with just, effective and efficient process; transparency; affordability; use of alternative dispute resolution (court annexed mediation); legal aid; effective dissemination of laws; and the need to humanize the face of justice.

Our Justice Sector has continued to strive – to evolve, adopt and implement credible and comprehensive reforms to create a justice system that is responsive, progressive and conducive to the development of our democratic society.Judicial strategies and reforms are not events, but rather long term processes and never static – it is not a sprint but rather a marathon. The Judiciary constantly aspires to get better to meet both internal and external needs. Reform is a continuous process it must be proactive and initiated timely – as preventive measures rather than reactive processes.  Reforms initiated must ensure a proper balance between the purpose of justice and the overall goals of promoting access to justice, confidence in the legal system, cost of litigation, turnaround time, efficiency and professionalism of judges, judicial personnel and legal practitioners. It is imperative to ensure a system that is simple, fair, prompt and economical.

The Judiciary has always aspired to deal effectively with change, and employed all our talents, abilities, and resources as best as we can, to improve the administration of justice. Memories are precious, but progress and change is inevitable. The cherished memories, traditions, and accumulated wisdom of the past must become our strength, to deal with the challenges of the present. We cannot divine perfection, but we will continue to aspire to achieve perfection in whatever we do. Consequently, identifying technology as the top priority in our strategic planning and taking advantage of the major improvements that the use of technology can provide, and the experiences and advances in other jurisdictions, must be the key to providing for a justice system – that is accepted as being fair, responsive and relevant, broadening access to justice, service to the people, and for building trust and confidence.

Miscellaneous hearings conducted by the Chief Justice every Monday and Thursday and by the Drangpons of the respective Courts, development of judicial forms for efficiency, periodic training of judiciary staff to enhance legal skills, allowing pro se litigants and ngotsaps (representation by a family based on the related concepts of khay-ghui chip & mi-phu), have all been geared towards making the courts approachable (easy access), and the system efficient and effective.

Part III

‘My primary responsibility was to ensure the independence, efficiency and effectiveness of the institution of judiciary’

In an interview with Business Bhutan’s Chencho Dema, Chief  Justice of Bhutan, Lyonpo Tshering Wangchuk, talks about his journey, the role he played in the judiciary, and other judicial issues.

Q. Your view on judicial corruption. What kind of instruments are in place to tackle corruption within the Judiciary?

The independent institutions must engage in monitoring, detecting, deterring and punishing corrupt acts and abuse of powers – we must not dismiss people’s perceptions of corruption callously. Corruption is anathema to legitimacy and good governance – it affects economic growth, sustainability and also the distribution of economic growth. Corruption invariably leads to disproportionate distribution of benefits and it affects the poor most severely. Integrity in public service means: Executing ones official responsibilities professionally – to the best of one’s abilities, with a clear conscience and humility (respect for people you serve) adhering to moral and ethical values; Adhering to the official code of conduct and integrity legislations (asset declaration and payment of taxes) and not engaging in issues concerning official misconduct (malfeasance and misfeasance that is, performing a lawful act in a wrongful manner or failing to do an act one is duty bound to perform); Upholding the principles of right and wrong by officials in their day to day dealings – being accountable and honest civil servants must ultimately translate to good governance. Doing the right thing consistently and fairly under every circumstance – involves: intellectual integrity – one does not change her views or perception depending upon the circumstances or external considerations; moral integrity – observing the same principles and standards irrespective of situations; and financial integrity – not aspiring for someone else’s money or property.

Conversely, the Judiciary will always be plagued with unfounded accusations and criticism in the print and uncontrolled social media – one must learn to deal with it. As I have always maintained – the only thing one can do, is to do, whatever one does with a clear conscience. Loyalty and fidelity to the rule of law must be the foundation on which the justice system must be built on. Taking harsh and difficult decisions is part and parcel of being a Judge – when we decide we divide. The business of Judges is enforcing the law, if one is unable to enforce the law, then one fails to uphold the sworn duty as a judge. As public officials, living our lives in a glass house, criticism is inevitable. Given the small society syndrome, vagaries brought about by the advent of social media with possibility of writing in anonymity, critical media writing about legal issues without understanding, impassive politicians and uncomprehending public complicates the thankless job of judging. However, someone has to do it and we must continue to hope that with maturity in society, things will improve in the future. Till such time all we can do, is to continue to constantly aspire to improve and achieve perfection. The Judiciary must continue to deliver and take solace in the fact – it is said “a flower that blooms in adversity is the most rare and beautiful of all”.

Judicial officials must be conscious of the potential threats and protect the common interests of the institution based on our shared values, beliefs and objectives. Members of the Judiciary must share a common vision for an independent, effective and efficient justice delivery system. Be united like members of a closely bonded family – resilience comes from unity, loyalty and dedication (Tha-dhamtsi) in our personal bonds and regard for the institution of Judiciary. I have always reminded the Judges and Staff of the Judiciary that: institutions become vulnerable with internal instability, disharmony and infighting. To be ambitious is good, but achieving the ambition must be based on capability and within the bounds of reason. Do not harm, cause instability, and dismantle an institution, without the means or ware-withal of showing how to build a better one. When an institution no longer matters, we no longer matter. No individual is greater than an institution – strong institutions and established norms protect individuals in the system.  

Complaint System: The Judiciary is not immune from corruption, aberrations have been dealt with effectively in the past and the Judiciary will continue to do so in the future. Many of the complaints result from a breakdown in communications between Court Staff and their clients. These complaints are quickly resolved when the facts, evidence or circumstances are established. In most cases the outcome is either a reversal of the original decision of the Court Staff or an acceptance on the part of the complainant that the decision in respect of his or her case is correct.

Many complaints could and should be easily and swiftly settled at a very early stage by the Court concerned. The “Central complaint handling office” in the Judiciary (the Office of the Registrar General, Supreme Court) has the authority to examine a complaint only where the complainant has a name and a face. Anonymous complaints are not accepted. The complaints system is established to deal directly with complaints from the public. An investigation committee is formed to review the complaint, and where necessary charges are prepared and the official concerned is provided with an opportunity to submit a rebuttal, which is heard by another panel and decision taken. The decision is thereafter, implemented subject to confirmation by the Chief Justice. Good complaints handling is accepted as an integral part of customer care. It is hoped that the complaint registering system initiated will be of assistance to the court users and the Judiciary – in our efforts to improve the quality of the service it provides. Unfortunately, the court users still opt to file complaints anonymously with the ACC. The complaints when deemed necessary by the ACC have been forwarded to the Judiciary. Even though it is against the policy of the Judiciary not to take cognizance of anonymous complaints, some cases have been investigated or are under investigation that affect the prestige, credibility and functioning of the justice delivery system.

Q. How has the Supreme Court as protector and guardian of constitution ensured constitutionalism through proactive interpretation of the Constitution?

Constitutionalism is a philosophical belief in a government under a written constitution. The essence of constitutionalism is the restriction of power by law in order to vouchsafe consistency and hierarchy of legal system and the rule of law, which is not an end in itself but a means to securing the rights of a person, in particular vis-à-vis the State. Understanding of the innate nature of the rights of human being, the priority of a person, separation of powers, supremacy of the law, etc. are universal and serve the goal of guaranteeing the service of the State institutions to the people. Values of modern constitutionalism are: rule of law, fundamental rights, natural justice, political pluralism, and separation of powers, popular sovereignty and democracy – basic features of the Constitution. Constitutionalism demands that rights and duties go hand in hand. This important aspect of constitutionalism is however, often times conveniently forgotten by our citizens and individuals.

Article 1 Section 13 of the Constitution provides for separation of powers – no encroachment of each other’s powers is permissible between the three arms of the government, except to the extent provided for by the Constitution. This is to prevent concentration of power in the hands of a single organ of the state especially in countries where judicial activism interferes with and invades into the domain of other organs. The Bhutanese judiciary has adopted the policy of restrained activism – when the State actors have violated the Constitution, the Judiciary has suo moto issued appropriate writs to correct the mischief. In a new democracy, the State actors are bound to make mistakes given the lack of experience and proper understanding of the working of the Constitution. In this context the Judiciary has always acted positively when the matter is of national interest. In a small nation with an even smaller population a purely activist court will have the power to cripple the functioning of the government which is bound to make inadvertent errors.

There has been only one constitutional cases relating to imposition of tax unilaterally by the cabinet in accordance with the laws that pre-dated the Constitution. In the context of Bhutan, it will remain an important judgment in our constitutional history. The ratio decided in the case is simple “taxes can only be imposed by Parliament in accordance with the interpretation accorded except by law enshrined under Article 14 Section 1 of the Constitution”. However, the first constitutional case has more value in terms of its obiter dicta and the principles enshrined relating to legislative standing, primacy of the National Assembly in money bills, adoption of a semi-concentrated (middle-path) system of adjudicating constitutional cases etc.

Credit for adjudication of only one constitutional case till date, must be accorded to Article 21 Section 8 of the Constitution. The provision enunciates the Royal prerogative of His Majesty the King to command submission of opinion (abstract review) by the Supreme Court on question of law or fact of such nature and of such public importance, that it is expedient to be resolved immediately. Abstract reviewprovides for review regarding the constitutionality of laws enacted by Parliament or actions initiated by agencies of the Government and independent bodies without it being a subject matter of a concrete case or proceeding. The review takes place detached from any particular case and reviews compatibility of the statutes and actions with the principles and provisions enshrined in the Constitution.

In accordance with Article 2 Section 18 designates His Majesty the King as the protector and upholder of the Constitution in the best interest and for the welfare of the people of Bhutan. The Supreme Court is the guardian and final arbiter of the Constitution as provided under Article 1 Section 11 of the Constitution. Some of the major decisions and orders issued by the Supreme Court as the guardian and upholding the sanctity of the Constitution includes: issuance of a writ of mandamus in accordance with Article 21 Section 10 of the Constitution preventing the Government from establishing Thromdes and Yenlag Thromdes in every Dzongkhag without any established criteria after repealing Section 16 of the Local Government Act; nullifying the election of an independent Thromde Thuemi in the Thromdes of Phuentsholing, Gelephu and Thimphu as it was contrary to the intent enshrined in the constitution to provide interface between the urban and rural representatives in the Dzongkhag Tshogdu; declared null and void in accordance with Article 1 Section 10 the 2011 amendment Section 199.8A (b) of the CCPC which stated that a person charged with an offence of or above felony of the second degree shall not be entitled to bail. The amendment is inconsistent with the presumption of innocence provided under Article 7 Section 16 which states “A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.”

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