However, frivolous complaints with intent to defame may see contempt proceedings
The Supreme Court has come up with a draft Judicial Accountability Guidelines 2017, which for the first time sets up an entire system along with guidelines to complain against Judges and also investigate them.
Judges, if found guilty, can face anything from reprimand and suspension to even termination without retirement benefits, depending on the nature of the offence.
The guidelines are significant as they go even beyond the Judicial Services Act 2007 which only allows for complaints and investigations against Dungkhag and Dzongkhag level Drangpons.
The Judicial Accountability Guidelines now allows for complaints and investigations even against High Court and Supreme Court Judges.
Another important aspect is that while the Judicial Services Act 2007 came with a code of conduct for Drangpons in chapter 10 (see page 2 for the code) and disciplinary actions in chapter 12, which allows for complaints to be made, there were no detailed guidelines.
The guidelines now sets up an entire system with complaint procedures, investigation of the allegations, dealing with frivolous complaints, ,who would do the investigation and what would be the action taken.
The guidelines in the preamble states that the Constitution and the Judicial Services Act both guarantee the independence and roles of the Judiciary but it says that the independence of the Judiciary is neither the right or privileges of Drangpons, but is the right of all consumers of Justice.
A complaint against a Drangpon or judicial staff should be filed against the Registrar General of the Supreme Court.
The complaint should be in writing and person as complaints filed anonymously will not be admitted. All complaints would be kept confidential so as to protect a Drangpon and judicial service personnel from defamation.
Frivolous complaints may be deemed as contempt of court and defamation, if the complaint is made without any basis and made with the mala-fide intent to intentionally defame a judge or malign the institution of the Judiciary. In such cases the contempt proceedings would carried out by a more senior judge or court. However, such contempt proceedings can be appealed to both the High Court Chief Justice followed by the Supreme Court Chief Justice.
Grounds for Compliant
Based on chapter 12 of the Judicial Services Act the grounds for disciplinary action are lack of judicial temperament, repeated lack of Driglam Namzhag, habitual absence from duties, dereliction of officially assigned functions, neglect of duty and non-compliance with or non-enforcement or non-implementation of lawful and proper orders, directives without justifiable reasons.
It also includes abuse of official authority, position, or violation of the Judicial Service Act, habitual drunkenness, use of drugs, physical incapacity or mental aberrations, conviction of a crime involving moral turpitude and sexual harassment, exploitation or taking advantage of the litigants.
Notwithstanding the above, the cause for any disciplinary action against a Drangpon shall also include any conduct in violation of the Judicial Code of Conduct under Chapter 10 of the Act.
The guideline says the commission of corruption or lack of judicial integrity while delivering judgment for consideration, collateral or extraneous reasons, or accepting bribes by way of cash, kind or demands made thereof shall be the grounds of complaint.
Inquiry and Investigation
After a complaint is filed the Office of the Registrar General will discreetly conduct a preliminary inquiry to establish the facts and circumstances of the case.
If there is a prima facie case then the Registrar General will submit a written submission to the Chief Justice to carry out necessary investigation based on the guidelines of the Judicial Services Act.
If the complaint is baseless it shall be dismissed by the Registrar General along with a dismissal order. This dismissal can be appealed to the Chief Justice. After this if the complaint is found to have been made with the mala-fide intent to intentionally defame the judge or the institution as a whole, then appropriate proceedings maybe initiated against the complainant.
Once the complaint is accepted for investigation a minimum five member committee in keeping with the Act will be instituted.
In case of Judicial staff, Drangpons of Dungkhags and Drangpons of Dzongkhag courts the team will consist of the Registrar General of the Supreme Court as the head, Registrar General of the High Court as member secretary, member of the Royal Judicial Council other then the Chair and Chief Justice of the High Court, Registrar of the Supreme Court and a member of the Judicial Service Personnel nominated by the Chair of the Council.
If the investigation is against the Drangpon of the High Court, Chief Justice of the High Court and Drangpon of the Supreme Court, the investigation committee will consist of the senior most Drangpon of the Supreme Court as the head, chief justice of the high court, Registrar General of the Supreme Court as member secretary, member of the Royal Judicial Council and a retired justice of the high court or the Supreme Court.
If the investigation is against either the senior most Supreme Court or the high court chief justice then the Drangpon next in line of seniority shall be a member.
In line with section 137 of the Act no person related to or associated with a Drangpon or judicial personnel under investigation can participate in the investigation process. The committee will complete its investigation within 30 days of its constitution.
No benefits during investigation
During the course of the investigation the Drangpon or judicial staff will receive only 50 percent of his or her basic pay and will not be entitled to any duty vehicle, housing facilities or allowances, mobile and voucher allowance, duty free benefits and other such benefits.
This amount will be refunded if the Drangpon is proved to be innocent.
Furthermore Drangpons who are actually suspended will get only 50 percent of their pay while in suspension.
Disciplinary Authority and Action
As per the Act the authority to execute and enforce disciplinary action shall be the Judicial Service Council for judicial personnel and Dzongkhag level Drangpons. The Chief Justice as per the Act has the authority to censure and suspend the judges based on the recommendations of the Judicial Service Council for proven misbehavior.
In the case of High Court and Supreme Court Judges the National Judicial Commission will apply. As per Article 21 section 15 of the Constitution the authority to censure or suspend Drangpons of the Supreme Court and High Court shall be by a command of the Druk Gyalpo on the recommendation of the National Judicial Commission for proven misbehavior, which, in the opinion of the Commission does not deserve impeachment.
As per the Act the relevant disciplinary authority shall render a decision within 21 days from the receipt of the investigation report of the investigation committee.
As per section 15 of the Act the disciplinary action can vary from : reprimand, suspension, reduction of pay and withholding increment, demotion and withholding promotion, removal from service with or without retirements and any other action the disciplinary authority deems appropriate.
In accordance with the Act the appropriateness of the disciplinary action and the degree of the ‘discipline’ to be imposed shall be determined through a reasonable and reasoned application of the Act and the effect of improper activity on others or the judicial system.
Drangpons and Judicial Service personnel can appeal the decisions of the authority to the Chief Justice based on the Act.
Removal and Impeachment
The removal of judicial staff and Drangpons till the Dzongkhag level can be effected only after the inquiry and establishing that the concerned person is incapable of performing his or her duties or due to grave misconduct, proven misbehavior, incompetence and violation of the Judicial code of conduct.
The Chief Justice of Bhutan, Drangpons of the Supreme Court, the Chief Justice and Drangpons of the High Court shall be liable to be impeached only on the ground of incapacity, incompetency or serious misconduct and in accordance with the Judicial Service Act and the provisions of the Constitution. The Parliament needs to pass an impeachment with a two-thirds majority.