Procedural Reforms


Many procedural reforms aimed at making justice accessible and to make the Courts user friendly has been introduced. Through the enactment of Civil and Criminal Procedure Code, 2001 the following procedural reformation were further strengthened: Strengthened the miscellaneous hearing calendar;

  • Strengthened the registration procedure and hearing process;
  • Expedited the adjudication process through the introduction of various management principles;
  • Strengthened the legal language and Bhutanese terminology;
  • Enhanced professionalism and reduced time consumption with the introduction of 75 judicial forms;
  • Provided inexpensive litigation with nominal court fees;

Procedural Reforms in Bhutan

Background

The judicial reforms in Bhutan were initiated in 1991 aimed at developing a dynamic approach in Judicial Administration to ensure uninterrupted and effective functioning of the courts. The reform mandates to keep the streams of justice clear, pure and make the justice system user friendly. In 1996, His Majesty the Fourth Druk Gyalpo commanded that justice be dispensed expeditiously, fairly and inexpensively. Further, in 1997 a circular in pursuant to the Royal Command was issued regarding the roles and responsibilities of the High Court and its functions including the due process, organization and method, powers and functions. It also mentions the duties and responsibilities of the Chief Justice and other judicial staff.

Access to Justice

In order to redress the complaints of the people having to wait for a long time before their complaints were registered in the courts and to avoid the allegation that the court officials are indifferent, hostile and arrogant, the Judiciary of Bhutan over the past years has made unprecedented progress, in refining a just and efficient legal system, enhancing greater transparency and strengthening the rule of law, while keeping the cost of litigation inexpensive. The access to justice has been made simple and effective to avoid unwarranted allegations.

Access to justice is also vital in redressing the victims of illegal acts such as fraud, theft, sexual or economic exploitation, violence, torture or murder. Justice systems can provide remedies which will minimize or redress the impact or the misfortune. Fair and effective justice system eliminates and deters people from committing further injustices or from taking justice into their own hands through illegal or violent means with impunity. Through unhindered access, victims would be comforted and the offenders be made accountable. Consequently, the Courts have established Registry of a Court as the one stop contact point for any complains. Further, specific job description with individual job responsibilities and assignments for every judicial personnel were clearly specified to aid in enhancing the efficiency and effectiveness of the judicial system. Bench books were provided to every court official.

Registry of a court

Procedures are followed in accordance with the Civil and Criminal Procedure Code (hereinafter mentioned as Procedure Code). A case is required to be registered with the Registry of the court between 9.30 am and 10.30 am. It is headed by a Registrar and is accountable and responsible to enhance access to justice and render judicial services arising out of miscellaneous matter.

Miscellaneous Hearing

The Registrar process the Miscellaneous Hearing before a judge. If it is for the production before a Judge, it is his responsibility and duty to ensure that it is within twenty-four hours in accordance with Procedure Code. In case of any other matters, the Miscellaneous Hearing is conducted within ten days.

During the Miscellaneous Hearing, if the petition or complaint is admissible in accordance with the law, a judge admits the petition and assigns the case. If the petition or complaint is inadmissible, he dismisses the petition or plaint with an order in accordance with the law. All complaints registered in the miscellaneous registry can be inspected either by the complainant or the High Court.

Effective hearing and trial system

The Judiciary initiated procedural reforms to provide for an effective hearing and trial system corresponding to the contemporary values and emerging needs of the society. The procedural reforms advocated prompt and professional investigation, prosecution and dispensation of the criminal cases (fast-track). The cross examination of witnesses, open trial, plea bargaining, and the reasoned judgments are designed to protect the rights of accused, as well as that of the victims ensuring impartiality and effectiveness of the legal procedural system.

Similarly, in civil cases, systematic and exhaustive hearing processes are initiated under the judicial process. It encourages and inculcates judicial temperament of all judges and staff to be organized and disciplined with trust and diligence in the implementation of the laws.

Stages of judicial process

The stages of the judicial process encompass hearing calendar, show cause order, preliminary hearing, opening statement, rebuttal, evidence, judicial investigation, cross-examination and closing argument. This process ensures discipline in arguments, exhaustiveness, time of reflection and serves as a check list. This system eliminates repetitive arguments, psychological intimidation and delaying tactics. The process is in pursuit of truth and facts which strengthen due process, fair trial and the rule of law. Quality of justice is availed through inbuilt mechanism of fair process. It provides basic documentary records and self-check list. It has both static and dynamic impact of information. The exhaustive stages of hearing are essential but cases may be stopped at any stage on a motion for a summary judgment, out of court settlement and withdrawal of cases in accordance with the Procedure Code.

The judgment rendered is divided into various parts, which endeavour to make the judicial process cost and time effective to cater to the consumers of justice. A judgment encompasses the detailed information of the parties, background of the case, details of the charges in the criminal cases, date and number of hearings conducted, court findings including evidences and detailed arguments of the parties, summary of the court findings, ratio decidendi and the court order. Once the judgment is rendered, ten-day time period is given to exercise the right to appeal.

In the determination of any case, everyone is entitled to the minimum guarantees, in full equality as listed in the index of a judgment. The index aims at providing mechanical, logical and systematic submission of arguments and facts to avoid digression from the main issues and to eliminate harassment and delay. The index indicates the right to defense, a written defence or statement in writing or written testimony, relevant documents, evidence, etc. Consequently, the results were the reduction of time through timely submissions of facts and documents, non-deviation with irrelevant issues and acrimony against non-admission and non-cognizance of issues by the court.

Judicial Forms

To complement and supplement the quality and exhaustiveness of hearing and further to enhance transparency and accountability in the judicial mechanism, seventy-six judicial forms were made with relevant instructions and sections of laws. This has resulted in a high degree of standardization in the form and content of documents. Forms perform simple and repetitive tasks faster with greater accuracy and at a lower cost than doing them manually. Standardization of forms avoids omissions of relevant facts and facilitates speedier case processing. The forms are now available on the judicial website and can be downloaded free of cost.

Undue delays

The High Court has issued directions or orders to avoid delays and to render efficient and effective judicial services. The first measure was to assign the cases to individual Bench Clerks and make them responsible to process the cases that were not decided within eighteen months. The case information report segregates the decided cases into two parts, cases that were decided within 108 and beyond 108 days. The pending cases beyond 18 months were monitored directly by the Chief Justice. The results were astounding. Now, in order to render speedy judgment, the 18 months duration has been reduced to 12 months.

The judicial process is geared towards eliminating undue delay. The process has helped to submit the facts and issues methodologically, systematically and exhaustively. To avoid frequent and unwarranted adjournments, to deliver timely justice, and to make the process inexpensive, the court does not consider a motion for adjournment or stay of proceedings sine die except in accordance with Procedure Code. The judge asserts judicial and personal independence from the litigants to be the de facto manager of the court docket, namely by setting a schedule for the various filings, hearings and other necessary events and authorizes adjournments only on merits and when good cause is shown. Moreover, the court is mandated to convene the preliminary hearing within 10 days of registration in criminal cases and 108 days in civil cases. Consequently, unwarranted delays by the parties to a case are avoided.

Quality of justice

It is the perpetual quest of the judiciary to make courts user-friendly in order to enable people to have equal and unimpeded access to legal services and dispense justice swiftly, fairly and transparently. In pursuit of these quests, Information and Communication Technology (ICT) was introduced in the judiciary in 1991. The use of ICT must continue to help and guide the judiciary by maximizing the use of data storage and retrieval system, statistical and quantitative methodology for comprehensive analysis, and qualitative results through comparative reports and case monitoring.

To improve the professional competence of the judges and judicial staff, continuing legal education is imparted through the division of Research and Development. This division is placed under the Judicial Reform Branch.

In its desire for transparency, the judiciary is in the process of posting its decisions on the judiciary website. Publishing of judgments will deter rulings based on considerations other than law and facts. By publishing its decisions, the judiciary aspires to achieve consistency in the law and enhance public understanding. It is hoped that publishing names of the judges along with their decisions will serve as an incentive to judges who take pride in thoughtful legal analysis and create a healthy sense of competition and desire to maintain an excellent track record.

Monitoring and Inspection

The Judiciary of Bhutan conducted workshops in 1991 with all the judges and court officials. Thereafter, the Chief Justice and other Justices of the High Court visited every court and inspected the court records to monitor the implementation of various instructions made during the workshop. The report of the inspection was reviewed and analyzed during the 1992 workshops.

Further, a team led by the Justices of the High Court inspected on the judicial process and use of the judicial forms in 2000. The subsequent inspections were conducted in 2003 and 2005. The cases that were delayed more than 18 months were inspected. The inspection report submitted on 20th July 2003 reported that there were 1557 (including six cases of 1993) pending cases that were of more than 18 months. With constant monitoring and inspection, there were only 27 cases as of April 2007, which are pending for more than 18 months.

For effective monitoring and inspection, a printed form is attached to every case file to record the date and the number of hearings conducted during legal proceedings. This information is loaded in the Case Information System (CIS), maintained with the IT section. The judicial process taken by every court are compared and cross checked with the stages of hearings generated from the report in the Case Information System at the High Court.

Legal Empowerment

Recognizing the importance of the assistance of a Jabmi to protect and establish rights in all stages of proceedings, the Procedure Code permits a person to be represented by a Bhutanese Jabmi of his or her choosing. The Advocate Act also authorizes the organization of legal aid to an indigent person (Pro Bono) in the prescribed manner. An indigent accused shall have legal aid provided for one’s defense where the interest of justice so requires according to Procedure Code.

For legal empowerment and to make every Bhutanese responsible and informed, the judiciary in the year 2001 initiated a nationwide briefing on the rule of law and the judicial process with special focus on the Procedure Code. Further, to make the individual accountable and responsive, many seminars and workshops on legal subjects for the judicial officials, police officials, bench clerks, and legal representatives of the various government agencies and financial institutions were conducted. At present, there are lawyers working in the legal divisions of many Government Departments, Ministries and in corporate entities.

Moreover, to improve the capacity of the people to seek legal remedies, the judiciary in early August 2005, initiated dissemination of legal information under the theme "Know The Law-To Protect Your Rights". This program included the dissemination of the Penal Code to all the members and official of the local governments and the youths of Bhutan. It also includes a radio programme every Tuesday and Wednesday on important laws and legal issues.

Public Service

Public service is the duty of the judiciary in accordance with the Draft Constitution that mandates to "safeguard, uphold, and administer Justice fairly and independently without fear, favour or undue delay in accordance with the rule of law to inspire trust and confidence and to enhance access to Justice". Therefore, additional registries are in the process of being established to facilitate prompt legal services and other necessary legal documents.

Judicial Performance

The judicial reforms resulted in creating an inbuilt system of healthy competition in terms of both the quantity of trials conducted and the quality of decisions rendered thereof by every court in the Kingdom. Further, the introduction of yearly statistical reports of the disposal of cases in 1993, created awareness and competition among the courts and judges. It also advocated prompt and professional investigation, prosecution and dispensation of justice. As a Buddhist Saint had said that, "Satisfy both loser and the winner through impartial and due process," the judicial process enhances satisfaction.

Conclusion

The Judiciary of the Kingdom of Bhutan has been relentless in its pursuit to dispense justice expeditiously, fairly and inexpensively. With access to justice, identified stages of hearing, determination to decide cases within twelve months and transparency provided by public knowledge through the website and the media, the judiciary will continue to respond the challenges shaped by the unfolding democracy. Efficient legal system and prompt action will redress the wrong and deter the perpetrators of crime.