Judiciary: Third Branch of the Government

 

Courtesy: http://www.judiciary.gov.bt/index.php

Function (Roles and Responsibilities):­-

Judiciary safeguards, upholds, and administers justice fairly and independently without fear, favour, or undue delay, per the rule of the law to inspire trust and confidence and enhance access to justice. (According to the Tsathrim Chhenmo-the Constitution)

Law- rules prescribed by society or legislature for the regulation of human

 conduct.

Justice- constant and perpetual (continuous) desire to give everyone his/her due right according to the law.

History of formation and codification of laws

Bhutanese laws were deeply influenced by the teachings of Buddhism (i.e Michoe Tsangma Chudrug- the sixteen virtuous acts and Lhachoe Gyewa Chu-ten pious acts). The legal system was both spiritual and temporal in nature. The spiritual laws were said to resemble a silken know that is easy and light at first, but gradually becomes tight (ཆོས་ཁྲིམས་དར་གྱི་སྡུད་ཕུད།།).Temporal/secular laws were said to resemble a golden yoke that grows heavy by the degree of crime (རྒྱལ་ཁྲིམས་གསེར་གྱི་གཉའ་ཤིང།།).

-Umze Tenzin Drugyal completed the codification of laws in 1652. -10th Druk Desi Mipham Wangpo consolidated and amended certain parts of the code of Zhabdrung. -13th Druk Desi Sherub Wangchuk amended the laws codified during the first Desi. -First two Monarch further amended the laws during their reigns. -National Assembly enacted the first comprehensive codification of laws called Thrimzhung Chhenmo (Supreme Law) on the instruction of the king Jigme Dorji Wangchuk (Third Monarch). It contain all categories of civil and criminal offences and their penalties.  "The Thrimzhung Chhenmo covers almost all civil and criminal matters and includes sections on land law, marriage, inheritance, weights and measures, theft and murder. Although many of the chapters have been amended by subsequent legislation, the Thrimzhung Chhenmo is considered to be the basis for all the subsequent laws enacted in Bhutan"._ (http://www.judiciary.gov.bt/index.php/Welcome/get_pages?id=2)

  -The Fourth Druk Gyalpo further initiated enactment and amendments of laws.

་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་Structure of Judiciary in Bhutan་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་་

Supreme Court ༼མངོན་མཐོ་འཁྲིམས་ཀྱིུ་འདུན་ས།༽

The court comprises of Chief Justice and Four Drangpoens who has vested the power to entertain appeals against judgements, orders or decisions of the High Court in all matters and subjects. 

-Chief Justice is appointed among the Drangpoens of the Supreme Court by Druk Gyalpo in consultation with National Judicial Commission (a group comprising of eminent judges and jurists). S/he will serve for 5 years or until attaining the age of 65 years (or, whichever is earlier). S/he is the Administrative Head of the judiciary and he presides over the cases as Primas interferes (Prime among equals).

-Drangpoens of the Supreme Court will be appointed by the Druk Gyalpo from among the Drangpoens of the High Court in consultation with the National Judicial Commission. They will serve for 10 years or until attaining the age of 65 (or, whichever is earlier.

High Court ༼ཆེ་མཐོ་འཁྲིམས་ཀྱིུ་འདུན་ས།༽

Established in 1968 and has been "Highest House of Justice" until the establishment of Supreme Court. The court comprises of Chief Justice and Eight Drangpoens. Chief Justice is appointed from among the Drangpoens of the High Court and Drangpoens are appointed from the Dzongkhag Drangpoens by the Druk Gyalpo in consultation with the National Judicial Commission. It is subordinate to the Supreme Court.

 Dzongkhag Court༼རྫོང་ཁག་འཁྲིམས་ཀྱིུ་འདུན་ས།༽

It is subordinate to the High Court and is headed by a Drangpoen(s) who is/are appointed by the Chief Justice on the recommendation of the National Judicial Commission. The Drangpoen and other staff carry out the administrative work.

Drungkhag Court༼དྲུང་ཁག་འཁྲིམས་ཀྱིུ་འདུན་ས།༽

It is the lowest court in Bhutan and is headed by Drangpoen appointed by the Chief Justice, in the Drungkhags. The Drangpoen and other staff carry out the administrative work.

Jurisdiction of the Courts

The Courts in Bhutan have general jurisdiction and deal with both civil and criminal cases as well as original jurisdiction and appellate jurisdiction.

Civil Jurisdiction	Criminal Jurisdiction
Those cases include any proceedings of a civil nature decided by the court which pertains to land, inheritance, loans, marriage, etc.	Those cases pertaining to matters arising out of and dealing with some crimes already committed, such as offences against the State, human body and property, etc.
Original Jurisdiction	Appellate Jurisdiction
It refers to those cases that can be brought directly to the court for adjudication (dispensing justice) at the first instance.	It refers to those cases that are brought to the court through appeal.

Salient features of the judicial system in Bhutan

1. Independence of the judiciary- Judiciary has been separated from the Executive and Legislative branches of the government. The adjudication (dispensing of justice) is entirely the Drangpoen's (Lord of justice) responsibility. There are other measures to safeguard the independence of the judiciary through:-

-the security of the judges

-judges are financially sound, and

-appointment of judges is done by the National Judicial Commission.

2. Jabmi- the system of appointing Jabmi existence in the Bhutanese judiciary system. They are the Legal Representatives who are well-versed (knowledgeable persons) in terms of laws and are appointed by the choice of the litigant to represent them in the court procedures (court cases).

3. Thruenchhoe- It is a judgement passed by the court. The Thruenchhoe of the court or Thrimkhang to be final and binding is different with civil and criminal cases.

Thruenchhoe for the Civil Cases	Thruenchhoe for the Criminal Cases
It must be signed by the parties involved in the case with the sign and seal of the presiding judge and the court.	It does not require a sign of the parties involved in the case.

4. Appeal System- It is another important feature of the Bhutanese judicial system. An individual has the right to appeal to the higher court if not satisfied with the judgment of the lower courts. While in the process of appealing the case, an individual has to follow the appeal procedures (conditions:

i. Once the Thrimkhang passed the Thruenchhoe, the litigants have ten days to sign the judgement or appeal to the higher court.

ii. If one party disagrees and does not sign the Thruenchhoe and at the same time does not appeal to the higher court within the given time, the Thruenchhoe can be final and binding.

iii. in case of failing to satisfy the judgement of the highest court, an individual can appeal to the King within ten days.

iv. if the parties do not sign as well as do not appeal to the higher court within the given time, they will be liable for contempt(disrespect) of the court or otherwise, the judges of the highest court have the power to declare the Thruenchhoe as final and binding even without the parties signing the judgement. 

5. Genja- This is an agreement between the parties written as evidence signed by the parties and respective Jabmis.

6. Bah- Legal undertaking or bond (or surety) agreed by the litigants or the parties. 

Types:-

i. It is found at the end of every Genja or agreement signed by the parties.

ii. It is executed at every statement submitted to the court.

iii. It is executed at every Thruenchhoe or judgement passed by the court.

7. Negotiated Settlement (Nangkha Nangdrik)- the system of solving disagreements between the parties through compromise and negotiations. It is permissible only for civil cases.

Advantage	Disadvantage
1.       Saves time 2.       Less expenditure 3.       Easy access to justice/solution.	1.       Incorrect in dispensing justice. 2.

Courtesy: Bhutan Law Review, Vol.2013. BNLI, Thimphu.