Incomplete judiciary is incomplete democracy
During an interaction with the newly elected gups (Mandals), after the local government election this year, King Jigme Khesar had mentioned that democratisation process has been completed with that election. It came in line with the annual report of the government presented by PM Thinley at the parliament this year where he stated parliament, elected government executive power, creation of judiciary and local government election has shaped the Bhutanese democracy to a complete form.
Do these statements have essence in them when it comes to reality? Creation of institutions that are fundamentals of democracy does not exactly bring democracy in practice. It is rather the situation where these democratic institutions provide services to the people and that people’s rights are protected.
Right to justice, as guaranteed by the nation’s constitution, will not be guaranteed in Bhutan. It is due to lack of manpower which keeps democratic mechanisms functionless. Bhutan today is not only short of practising lawyers but justices too. Many who have acquired law degrees and have entered the profession very recently find it very difficult to adjust with the Bhutanese judiciary system, that basically thrives on traditional values. The country does not have any institutions to produce lawyers efficient to take the profession and government has rarely encouraged or supported people to choose legal studies.
The Supreme Court in the four-tier Bhutanese legal system is the highest in the hierarchy, followed by the High, Dzongkhag and Dungkhag Courts. There are no courts or tribunals of special jurisdiction currently but such courts and tribunals may be established from time to time by king on the recommendation of the National Judicial Commission.
The Supreme Court (authorised for constitution’s interpretation) exercises appeal, advisory and extra-territorial jurisdiction and where a particular case is not covered or is only partially covered by any law in force and is not otherwise excluded from adjudication, Supreme Court has original jurisdiction over it. Supreme Court should have four justices and a Chief Justice of Bhutan.
Established in 1968, the High Court has been converted to appellate court after the adoption of constitution in 2008. The nine-member team of high court is led by Chief Justice of High Court is divided into three benches. The other two tiers include district and sub-district courts.
The Supreme Court is incomplete. Only three justices – Rinzin Gyaltshen, Tshering Wangchuk and Rinzin Penjor – are working currently. The court is short of a justice. The high court is short of four justices. Sangay Khandu is acting chief justice while Lungten Dubgyur, Norbu Tshering, Tshering Namgyel and Tashi Chhozom are current justices.
There aren’t any possibilities that Bhutan will fill these vacancies for another three years due to absence of qualified legal professionals. Constitutionally, a person to qualify for High Court or Supreme Court justice needs 20 years of experiences in lower courts. And there are very few faces in the country who have now completed 17 years. Thus, it takes another three years for Bhutan to complete is judiciary. And there are reasons that vacancies will continue to remain even after three years if any of these resign to enter politics, retire or get sacked. The high court is working without its leader. Because constitution says only those having 25 years of legal experience are entitled to be nominated as head of High Court or Supreme Court. Absence of a leader has immense impact in justice delivery as acting chief is not permitted to use his authority in all situations.
When one of the institutions of nation remains incomplete, it is not rational for the king and the prime minister to claim that democratisation process in Bhutan has been completed. The incomplete system rarely delivers justice to the people. And if high court exercises all powers that it has been entrusted in absence of its leader, it is then violations of law by judiciary as well.