The Judiciary

With the Gyelpozhing case in the courts, Bhutan’s judiciary and judicial system is under the microscope where every move is being carefully watched and analyzed by the public.

The Judiciary will be under tremendous pressure and scrutiny like never before in its history. On one hand stand’s the most powerful people of the land, and on the other hand there is over whelming public opinion on the guilt of the accused.

If the Gyelpozhing case was important for the institutions of the media and the ACC it is all the more important for the judiciary.

In the past the public perception of judicial system was that the powerful and the connected had a better chance in the courts. The other perception was that the judiciary was regarded as a part of the government machinery along with the Dzongda and the police SP in the Dzongkhags.

The High Court and the Supreme Court’s verdict on the Tax case changed the latter perception as the Judiciary in its judgment declared itself as independent of the government.

With the Gyelpozhing case Bhutanese citizens will be waiting to see if the judicial system is free of the influence of the powerful and influential in a new democracy.

Any clumsy and one sided judgment on Gyelpozhing not based on sound legal principles, legal evidences, the principles of equality before law, and the principle of justice will do irreparable damage to the institution of the judiciary.

On the other hand while the judiciary like any other institution must be subject to democratic and transparent scrutiny, undue populist pressure must also not be placed on it. This is because though the judiciary is a powerful, old and fairly well established institution it is made up of judges who at the end of the day are human beings susceptible to human feelings and pressures.

While it is fine to have one’s own opinion on the various court judgments there will be chaos if virtually every judgment is torn apart and undermined. One example is the government’s relentless and unfair campaign demonizing the judiciary as anti-development after the tax verdict in the Supreme Court.

The judiciary’s power, prestige and also public acceptance of its judgments comes from the fact that it is seen as an institution that represents the law, the neutrality of law, the supremacy of the law and therefore  justice. However, no matter how powerful it is, the judiciary will become highly vulnerable as an institution if this perception of the judiciary is constantly challenged. Therefore, in a democracy it is the duty of ordinary citizens and the powerful alike to respect and protect the sanctity of the judiciary even if judgments don’t necessarily go ones way.

This is because at the end of the day any healthy democracy needs an independent, strong and healthy judiciary to safeguard our individual and collective rights under the Constitution.

However, the judiciary must also understand that it has the biggest responsibility to protect its own sanctity and position in a young democracy. Its greatest source of power which is its role as the interpreter and upholder of the law can also become its greatest weakness if it is not fair in its judgments. If the judiciary is seen as a rubber stamp of the powerful and the connected like the OAG, then apart from the loss of faith in the institution of the judiciary the effects will also greatly undermine faith in Bhutanese democracy and governance.

So far the judiciary like so many other democratic institutions has been finding its footing and minor mistakes are inevitable. However, big or intentional mistakes, apart from the damage it causes to the rule of law and the institution of the judiciary itself will neither be forgiven nor forgotten in the public memory.

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14 comments

  1. Judiciary should be apolitical and corruption free and it should not come under pressure of executive arm of government and influential people.

    Judiciary should not be biased or partial and being it should set examples and precedence for the future. If people loose faith in judiciary we don’t need war or famine, that is enough. So judiciary really needs to tread carefully.

    Just judiciary received so much of appreciation and faith from people during the tax case, it can also create example in the gyelposhing land case because the case involves influential and affluent people including PM. So judiciary should create history and earn itself a name and uphold people’s faith in it and now is the best time la.
    Forget about your relationship, it is going to be there as long as you breath. Think about this country and its law which will last for ever.

    All the best judiciary

    • Bringing down affluent people ….is that justice…? Just becoz media has portrayed  them as corrupt, are they really corrupt? And just becoz they are influential people, if they are not punished…would we consider our judiciary biased?

  2. Once again, this paper is pre-empting the verdict or rather, warning the courts to give the verdict in favour of ACC or else..? Comeon, leave this to the courts. They know the law more than us.. That is why they are called ‘Judiciary’. 

    • I think we should be fair in our comment. There is no harm is expressing opinions. I do not see this paper saying court is wrong or the party accused are wrong. Just expressing opinion does not mean we are preempting verdict. This sort of public pressure is required and I believe it is a healthy tension to be maintained. This will definitely keep our judges or people in possession of power on the alert and their by minimize mistakes. Yes definitely there is a strong perception that our laws favours the rich and powerful people. This should not be there.
      We do have ots of expectations as well as respect for the law in the country. It is very very important for the peace and stability of the country. We hope our judges will deliver fair and evidence based justice without fear or favour in the interest of the future of our country. No offense meant to pema.

    • If you look at the history of this paper and especially the Gyelpozhing land case it has preempted all the results. This paper blatantly accused JYT for Gyelpozhing land scam. It said he was a home minister then and accused him of influencing the plot allotment committee. The truth is, JYT was as a Foreign Minister then.

      Even after ACC finished its investigations and retroactively charged the speaker and home minister, this paper came out with an article desperately trying to implicate JYT as one of the accused. Therefore if this is not a vindictive journalism, what is it? If it is not serving the interest group, then who is this paper serving? Definitely not the Bhutanese people.
      This paper seem to have problem with every institution that contradicts its opinion and the Opposition party. This paper never ran a story on Opposition party. There were many a times when Opposition failed to play its role but this paper never questioned it. Are we to understand something from this? The paper had already bashed OAG as being a puppet to the government, now its the Judiciary and soon it will be ACC. I am cent percent sure that this paper will run a negative article on ECB if some of the political parties that applied for registration gets disqualified. It sure is in the making.

  3. so you will be happy if judiciary convict them even if they are found not guilty?

  4. I have problems even with NC. NC is supposed to be apolitical but now they can join political party moment they resign, chances are that during their terms of office, they will try to work against government of the day or opposition of the day so that reforms or oppositions are minimized. In return, they would get ticket to lower house.

    The members of NC retiring to join politics should have cooling period too…..

    • Defox,
      I agree with your view here. I also have a feeling that if NC act like an opposition we will have problem in future. NA can hardly pass any law. So we need more mature people who can discern the importance of their role and support govt if it is going to benefit the people and the country. Also yes their is confusion of their apolitical position if they join another party. We are already hearing that many of them are joining parties even before their resignation. this is will have implication on their functioning while in the council and will bias their decision.

  5. Its simple case…enough evidence collected by ACC. Court just need to penalize (jail-term) based on the evidence and the law of the land. Pl don’t complicate it..comment contributing authors.

  6. Historically the judiciary has been at odd with ACC. If we look at the case law, the accused in the Gyelpozhing land case will be either acquitted or the charges will be downgraded from criminal to civil. There is a strong probability that ACC might lose the case. Despite overwhelming support from the public, will ACC have the courage and stamina to appeal the verdict at higher court should it lose the case in Mongar Dzongkhag court? I am pessimistic about the outcome of the case because I do not have faith in the sanctity of our judiciary.

    We all know that CJ Sonam Tobgye has been very vocal about the independence of the judiciary from external influence and he has been very successful in his regard. The question we have to ask is how independent are the judges at lower court from senior judges? In recent memory not a single judge has been penalized despite the frustration of the people in the justice system. The judges are shielded from external influence under the Judicial Service Act? This ACT does not shield the judges at lower court from senior judges. Does ACC have the mandate to investigate the judges suspected of corruption?

  7. the big and powerful think that the judiciary is part of the government and that they can play with it for their win. that perception has to be changed and only the honest deliberation from the judges would indicate that as such.

  8. The premiliminary hearing at Mongar court showed in the kuensel, Minjur Dorji with his orange kapney…….thought something was odd here. these two oragange scarfs personnel are appearing with their orange kabneys while being prosecuted. What does it mean? They should appear as ordinary people and should be seen equal in front of the law. Something is terribly wrong and not suspending them before prosecuting is also wrong. Looks like law will bend its contours under power and its always the lower people who will take the brunt. There is certainly 2 laws and our jugdes are now being judged….. will they deliver Justice? No…….

  9. Well, I think we need Judiciary. This newspaper is already giving the verdict. We even don’t need ACC. This newspaper will investigate all the cases espicially about our PM. This newspaper wants ACC to charge PM even if the ACC does not think so. I’m sure this newspaper officials will celebrate with a big party if the ACC wins the case. Everyday, this newspaper has some composed articles against the PM.

  10. I think the Judiciary has done a fine job of being professional. Look at the judgement made for the supreme court construction case. They charged one of their own for corruption. Unfortunately, the RCSC talks about retroactive application of the law being the reason why they cannot take action against two prominent members of the committee. In my opinion it was probably the most senior officials that pushed their agenda in the meeting and forced junior officers to do their dirty work. Now they are free to do what they want while those officers have to face the music. If this is the precedent that RCSC sets, we may see a lot of civil servants partaking in corrupt actions and just resigning from service. 

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