A very good afternoon to all the Drangpons, lawyers, legal officers and my media colleagues.
The Judiciary is one of Bhutan’s oldest and most important institutions. Comparatively the media we have today is a much younger institution, but it also has important responsibilities in a young democracy.
What is common today to both institutions is that we are operating in a democratic environment with a written Constitution that is the Supreme Law. Apart from the Constitution the success of Bhutanese democracy will also depend on the spread of democratic culture among both ordinary people and institutions.
So while my original topic is ‘The Media’s Expectations from the Judiciary,’ I have taken the liberty to focus it on our current times by modifying the topic to ‘The Media’s Expectations from the Judiciary in a democratic context.’
So the main basis of my whole paper will be the fact that given that Bhutan is a democracy and has a written Constitution as the supreme law, it is on this basis that we in the media also have certain expectations from the Judiciary.
It is well understood that the role of the Judiciary in safeguarding our laws, rights, liberty and freedoms is absolutely essential. While recognizing and incorporating this, I would like to move a step further also and propose that the Judiciary as an institution itself also has to adapt to the democratic era.
By saying this I am not alleging that the Judiciary is stuck in the past as the Judiciary has evolved for the better like other institutions, but evolution is a continuous process and so it would be useful to give constructive feedback and even criticism to assist in this process of constant institutional evolution.
Also, while we may call it the ‘media’s expectations’ a lot of the points I am going to point out would also equally, if not more, apply to the expectations of ordinary citizens from the judiciary.
Therefore, as pointed above I would like to lay out a few points on the ‘The Media’s Expectations from the Judiciary in a democratic context.’
- Protection of Free Speech and Free Press
There are many ways to undermine press freedom, but one of the most effective and tried and tested methods, especially in countries with poor press freedom, is aggressive litigation and a narrow interpretation of free speech and media. In other words ‘legal harassment,’ seen in repressive countries where the media is litigated into silence either by governments and political parties or powerful business houses.
In that sense it is good that Bhutan as a young democracy does not have this, but one cannot say in the future, especially given the unpredictable outcomes of the electoral process and the types of leaders and forces it can unleash. Therefore, it is important that the Judiciary keep a liberal attitude and interpretation of the Freedom of Speech and Media guaranteed as Fundamental Rights in Article 7.2 and 7.5 of the Constitution.
This, of course, does not mean that the press can publish what it wants without evidence or verification, as the freedom of speech is not an unlimited right. However, protections should be given if it involves public interest and the stories are factual.
One good example would be the Dasho Benji Vs DPT defamation case where the party argued for a defamation case against what Dasho Benji’s counsel said was a general critical statement against a public organization like a political party. The case was eventually withdrawn by DPT but any rulings on similar or others cases like this can have significant positive or negative impact on press freedom in Bhutan.
- The Judiciary’s PR problem
World over the courtroom is a place with strict codes of conduct on the behavior of litigants, lawyers and people assembled to watch. This is important as the judge has to ensure the process of justice should not be stymied by bad behavior, uncouth language or threats in the courtroom. Due respect and decorum should also be maintained towards the presiding judge. These are all part of international best practices.
However, in Bhutan the image of the judiciary among both the media and the public is an intimidating one in terms of the setting in the court, the general atmosphere and at times the demeanor of the Judges. In some cases a very calm and reasonable Drangpon can turn into a ‘Dorji Drolo’ after sitting on the high seat.
Some journalists have complained of being ‘scolded’ even for minor infractions while covering the Judiciary.
There are verbal accounts from ordinary people going to get marriage licenses feeling like almost criminals due to the treatment they receive there.
While court decorum and proper behavior is important, the question to also be asked is does it really serve the purpose of justice to frighten the daylights out of all the litigants and in some cases even verbally humiliate them.
The Judicial code of conduct bars judges from shouting or using strong language against litigants but, now and then, we hear of litigants feeling intimidated.
This problem is not new and the cumulative impact over the years is that it has given the Judiciary a public relations problem where going to court itself is considered a punishment of sorts. The Judiciary is also seen as being a bit outdated on this front.
It would serve all sides including the judiciary and media if a less intimidating atmosphere can be maintained at court.
- Court Language
The Supreme Court on 3rd February 2016 issued a notification requiring courts to accept submissions only in Dzongkha.
However, interestingly the Thimphu District court in its judgment on the Dasho Benji Vs DPT defamation case in January 2017 challenged this assertion of the Supreme Court saying that the ‘common view that Dzongkha is the court language is not only misconceived and wrong but also against the principles of fair trial.’
The district court’s rather courageous assertion said, firstly, there is no specific law that says Dzongkha is the court language and secondly, the court in its findings argues it is the right of the litigants to have their cases adjudicated in the language they understand. The court said that the inability of a litigant to understand the language used in court can create significant barriers to justice.
Article 35.4 of the Constitution says “In any instance of a difference in meaning between the Dzongkha and the English texts of this Constitution, each text shall be regarded as equally authoritative and courts shall reconcile the two texts.”
However, at the same time there is no doubt that Dzongkha is the national language as per Article 1.8 of the Constitution and so it must be promoted and used even in the courtrooms.
Importantly, a poorly kept secret is that majority of the journalists while being fluent in spoken Dzongkha are poor in written Dzongkha and so if judgments come out only in Dzongkha then it would be a problem covering them in a complete way.
So a compromise here would be that at least the judgments are issued in both Dzongkha and English or at least a summarized English translation is done on the main aspects of the verdict so that the meaning is not lost while translating the verdicts from Dzongkha to English by the mainly English based media in Bhutan.
An important part of judicial reporting is access to the judgments and in some cases the judges or their legal officers themselves to understand complicated judgments.
Though this topic has already been discussed in detail by another colleague I would like to say that all judgments should be uploaded on the Judiciary’s website be at the Dzongkhag, High Court and Supreme Court level. As mentioned above, a summarized English version could also be uploaded at the same time. Currently the Judiciary’s overall website is not a very active one.
There should also be some form of access to the judges or, if not, then at least people appointed by them to discuss the verdict particularly in public interest or public institution cases. This is of course with the understanding that we cannot quote judges.
The Judiciary overall needs a better media access system than what it currently has.
- Reporting on verdicts
No matter what one’s view is, directly challenging a verdict and casting aspersions on the judge passing it is contempt of court. However, the press should be given more latitude and freedom in analyzing and pointing out the factual and legal aspects of a verdict, including pointing out factual and legal inconsistencies.
As pointed out in yesterday’s session, a verdict is a public document once it is issued and it is on this legal basis that the press can report on it and its various aspects without casting defamatory aspirations.
This is important as we in the media keep getting people coming in with court verdicts that they are unhappy with. While all cases are not genuine there could be a few where certain anomalies could be pointed out which would only go towards enhancing legal awareness. One example is to see if the verdict is not clashing with Constitutional provisions. This, however, has to be done with a good amount of research and responsibility.
Sub-judice is the legal concept that once a case is in court and under hearing one will not write or speak about it in such a way, including in the media that directly and visibly attempts to influence a case or the judgment.
Here, the concern among media professionals is that this concept should not be misused or very conservatively interpreted to effectively bar reporting on the issue. There are concerns of voices in the judiciary which even interpret a case in appeal being sub-judice.
Also rare cases must be allowed if the media comes up with concrete and previously overlooked concrete evidence that has a direct bearing on the case as investigative agencies or even ordinary people cannot be counted on to be free of any lapses or oversight.
It would be far more helpful for the judiciary to have such evidence based stories coming out before the verdict rather than after a judgment has been delivered. The judiciary can ask for such evidences to be presented in court too.
- Contempt of Court
A lot of public institutions and individuals from ministers to bureaucrats to government corporations and even major private companies are subject to critical coverage by the media based on evidences and events.
The Judiciary in Bhutan has largely escaped this media scrutiny largely because of the nature of the judicial professions where credibility is everything and so the burden of proof is much higher. It is also out of a fear of contempt proceedings among journalists.
However, as our democracy and media evolves along with the judiciary this glass ceiling will gradually go away. It is better that the judiciary does this voluntarily and gracefully.
However, as mentioned above, given the importance of credibility for the judiciary the burden of proof will also be higher.
The Judiciary on its part should not regard an attack one of its members as an attack on all and as an institution with its own checks and balances it should be open to reasonable public criticism and scrutiny.
- Protection of Sources
As per the law if a Court asks for the identity of the source in writing then the journalist is bound to give it up. The other option is for the journalist to protect his or her source and go behind bars as some journalists of some prominent publications in the West have done. That option is open to journalists too.
The above is yet to happen in Bhutan but our request to the court is that the court only ask for the identity of sources if the information provided is completely wrong and defamatory. Otherwise there is no point in just revealing sources as it would be hugely damaging to whistle-blowers.
- Judiciary a soft target and responsibility of the media
Unlike popular perception the judiciary is actually the softest target among the three arms of the government.
If you write stories against ministers or MPs, even if it is based on evidence, given the nature of their profession their core supporters will never desert them and even after a while public memory forgives them.
Their job though related to credibility and a clean image is not solely dependent on these qualities as politicians or political parties who may not be very clean come back to office based on their vote bank, political skills or if they ‘deliver’.
Also, not to mention the army of online social media supporters that work day and night to defend their political leaders and brainwash the public. Politicians also have various support systems and the tool to get back at critics.
However, in the case of a judge a taint once given can never be rubbed off. The impact is especially damaging since the core of the judiciary is all about legal legitimacy and credibility.
The Judiciary are composed of individual judges who can be brought under enormous and unhealthy pressure out of unfair ‘media trails’ that build up public opinion.
Incessant and non factual attacks against the judiciary not only harm judges but undermine the very credibility of the institution as a whole.
Therefore, the media, from its side, should be responsible by bringing out evidence based reporting and even criticism against the judiciary, instead of going with hearsay or on sided views of litigants losing a case. There cannot be two winners in any case.
We must remember it is the same judiciary which right from the district court to high court to the Supreme Court passed the Gyelpozhing verdict against the most powerful people in the land including some of its own. It is the same judiciary that also passed the famous Tax case verdict in the first Constitutional case. It is the same judiciary that we turn to in times of national crisis be it in the parliament or in public life for the interpretation of important laws and the protection of our freedoms and rights.
So while I am not advocating protecting the judiciary from reasonable complaint and criticism we should also be responsible in not running an important and key organ of our democracy through the gutter based on rumors and speculation.
The choice is do we want kangaroo courts defined by public opinion, prejudices and hysteria or a credible court system that is not afraid to even take decisions against the public if it is wrong.
The Judiciary on its part is not here to win a popularity contest like our politicians, but it must also consider the various above issues raised and carry out necessary positive changes so that it is seen more to be a defender of the laws and the rights of the people.
The Judiciary must also continuously adopt a democratic culture and continue its reforms to adapt to a changing society and times.
By Tenzing Lamsang
The writer is the Editor-in-Chief of The Bhutanese. This paper was presented by the writer during the June 26-27 ‘Law and Media Consultative meeting’ organized by the Bhutan National Legal Institute (BNLI) and JAB.