Stabbing a senior public servant should be condemned not celebrated or used as means to blame the judiciary to erode the public confidence in the justice system. If there is an element of injustice, the judiciary is merely one component among many stakeholders. Any injustice caused to any party, in any case, the entire justice machinery must accept the lapses and must be equally blamed and accountability fixed. The netizens who were supportive of recent violence in the Supreme Court indicate the sheer ignorance of understanding of the justice system.
A pure security lapse – not injustice
The reports in the media suggest that the judiciary has done its part to prevent the recent security lapses including repeated reminders to the security personnel and agency. If the Royal Bhutan Police, took prompt measures as required, this incident could have never happened. Article 28 (3) of the Constitution and Section 3 and 4 of the RBP Act 2009 recognizes them as the primary agency responsible for the prevention of crime and ensuring security, shouldering its responsibilities professionally and efficient manner. But this time, they have failed, and accountability must be fixed for such failure. RBP must take immediate measures so that such incidents do not recur in the future.
The fact that the defendants attacked senior officials of the Anticorruption Commission (ACC) suggests that the defendants were targeting ACC and not justices or the judiciary. This could also be because besides the media personnel, senior officials including the chairperson of the ACC attended the hearing instead of the usual prosecutor. This incident is a lesson to ACC that no case is big or small (though media terms a landmark case) as it is one of many corruption cases. As His Majesty said, “Corruption is unambiguous- there is no great or small corruption.” Every case must be treated equally. If it is the norm for such high-level officials from the Commission to attend the judgment hearing, they should attend every judgment hearing session in every corruption case. The rule of law must prevail over the institutional interest in selected cases.
This incident also reminds the vulnerabilities of court officials including judges to such security threats. Most courts in the country are manned by either one or two police officials. Except for the Supreme Court and the High Court, there are no security cameras in other courts.
Judiciary is only one piece of the justice system
The public often associates the entire justice system with the judiciary or courts. The Justice system is more than the judiciary. The judiciary, the law enforcement agencies, the legislature, and the parties in the case and their Jabmis form the major components of the justice system. For example, in narcotics law, due to poor determination of quantification by the parliament, every person with just a few tablets is now branded as a trafficker defeating the very objectives to help those dependent on drugs. The legislature hardly gets blamed for the enactment of such flawed legislation instead it is often the police and judiciary who gets the blame. Similarly, during the lockdowns and pandemics in the last two years, there were issues of inconsistent prosecutions and treatment of citizens by the law enforcement agencies, prosecutors, and taskforces for breach of health protocols, but no one questioned these institutions.
Netizens creating perceived injustice
Judiciary is like any other institution, not a perfect institution. Major reforms are going on and their outcome is expected to redress numerous challenges. The fact that the judiciary registered a total of 20651 cases and decided 8394 in 2021 alone in Bhutan does signify that the people still have faith and trust in the judiciary and the justice system. People come to court when nothing works because they believe at least the justice system is there to protect their rights. Though there are no statutory requirements, the judiciary tries to resolve every dispute or case in less than twelve months. For example, even in the US, the average litigation duration is two and a half years, while in Singapore a year to a year and a half. The judiciary has trained numerous bench clerks as mediators to provide court-annexed mediation services. These mediators provide free services within the court premises resolving cases within hours and days benefiting particularly the vulnerable population. In 2021, more than a thousand disputes were settled through court-annexed mediation. Unlike executive or other agencies, the judiciary did not boast of such achievements. Thus, if anything to go by these figures, the perception that the judiciary is a source of injustice as described on social media holds no truth.
The unnoticed challenges in the judiciary
Merely having judges is not enough if we need to have a robust judicial system. Judiciary must have a pool of professional legal experts and support staff to support to assist the judges and adequate financial resources to provide better service delivery including security issues. For the financial year 2021-2022, a total budget of Nu. 389.802 million was allocated to the entire judiciary. Compared to them, the Ministry of Education received Nu. 15288.063 million and Law and Order Services received Nu. 2,635.186 million and Local Government Nu. 26,031.944 million in addition to annual grants. Judicial Service Act, 2007 is crystal clear that the judiciary has both financial and personnel autonomy. However, even after 15 years of enactment of this law, the legislature and Royal Civil Service Commission retained complete control over financial resources and personnel except for the judges and justices. Article 1(13) of the Constitution ensures a clear separation of the Executive, the Legislature, and the Judiciary. But the judiciary has lost this important independence and is dependent on political will for budget and RCSC for personnel.
The future
Transparency of decisions plays a vital role in garnering public confidence in any public institution. Legal systems that enjoy a high degree of public confidence are ones whose decisions are freely available to the public. For example, the Supreme Court of India has made its decision available on its website from 1950 till this month. In the U.S. Supreme Court, all judgments, oral arguments, and opinions of each case are available to the public. Such transparency not only builds public confidence and respect but also helps to combat any misinformation, disinformation, or fake reports about decisions of the courts. However, no judgments are available to the public in our case. The judiciary must improve on its transparency, vigorously advocate, and create awareness among the public on legal processes and the path to justice in the country.
Further, without an adequate budget and personnel autonomy, the security issue is just one among many challenges faced by the judiciary. The government of the day must review the current system of budget allocation because the rule of law is fundamental and indispensable to democracy and its strength. The RCSC must facilitate the judiciary to gain its personnel autonomy. Otherwise, netizens with a vested interest or out of sheer ignorance of the law or justice system will continue to make the judiciary the scapegoat and undermine the rule of law. The netizens must not abuse the right to free speech to propagate misinformation among the public about any individual or institution based on unfounded rumours or one-sided facts or presumptions. As His Majesty said, “the failure of justice persecutes an individual, but the lack of adherence to rule of law persecutes an entire nation. Through the Rule of Law, we consolidate institutions of checks and balances, which in turn promote good governance.” There will be a rule of law only if there is a robust judiciary system.
Contributed by
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views
expressed in this article are author’s own.