Tuesday, March 6, 2012

The Judiciary

The need for a just society for it well being cannot be stressed enough. The Judiciary therefore stands as a very very important institutional mechanism of ensuring justice with all the empowerment and protection.

I am not in a position to comment on the criminal aspects of justice for I have fortunately not been exposed to it yet. I can't even begin to imagine how it would be because, my exposure to a civil suit has been hell, to  say the least. From my own experience, justice is important to ensure that a citizen enjoy the peace of mind, let them focus on their work, continue to be productive for the society etc.

The insensitivity and probable danger from the powers of the judiciary i choose to vent my frustrations here.

I am not a lawyer and the little that i understand of it is as a result of my recent exposure to it as a result of a civil suit. I may be wrong here, but I m pretty surprised how simple the law is our country, and any person with a decent education can sufficiently read up on the aspects of the judiciary in our country. My opinion is that the people appointed in positions to protect the law are making it complicated. I wish to write my perception about the judiciary as it stands today.

The Judiciary is structured as a minimum of three levels, the District Court, The High Court and the Supreme Court. Any case therefore has an opportunity of being reviewed at a minimum of two levels depending on the merits and need for the review. This is expected to serve as a check and balance mechanism whereby, even if the case was not properly judged in the lower courts the higher level courts would correct any mistakes. This system probably works in larger countries where the Judges sitting in these courts are independent of each other. Bhutan is a unique case that way. The administrative and financial power for all the courts remain with the Supreme Court and therefore have a dependency. The small society and the smaller legal fraternity in Bhutan make it difficult for the different hierarchy of courts to function independently. The husband is at one level of the court while the wife is at another, relatives, very good friends or at least people they know they don't want to offend from a long term career perspective.This makes the delivery of justice very difficult. An Dasho Neten Zangmo like person might be able to deliver justice under such situation, but the other lesser mortals with many short commings don't seem to be able to live up to our expectations.

I see laziness in how our Drangpons function, perhaps tired of the many cases they have to handle on a everyday basis. In a judiciary system where the petitions are just read out and very little deliberations happen in the court, the Drangpons seems to be ill prepared for the cases and often confused with the details of the cases. The common accusation of the verbose having advantage in our courts is perhaps for this reason. In whatever side the case may seem to go during the limited deliberation, the stenographers ( Dungyi) has his way in how the verdict in worded and in many cases decides the course of the case.

The low literacy in law of the common population and the very limited access to people who understand law often make a strong case very weak because of how the case is petitioned and appealed. Despite this ground reality, the Courts prefer to go by their infamous principle of ' ignorance of law is not an excuse'. For the lack of lawyer to defend or fight our cases and because of the limited resources a LDC country like ours has, it might be worthwhile for the judiciary system to introduce a system of getting legal advice before the actual case deliberation happen. This is for the sake of justice which the judiciary is expected to deliver. The judiciary cannot be institution just for following procedures and must take a bigger role in the given scenario of low law literacy and strive to deliver justice and not just choose to punish people for their ignorance of law. There will be no equity and justice as long as the richer and law literate people enjoy a better probability of winning a case than that of a poor and legally illiterate person.

A Corporation  as a legal entity has all the process requirements based on Acts and rules. However, an internal Audit is seen as a must as well as an external audit. The independence of the judiciary  is very important, but at the same time, a system of auditing the judgements ( internal as well as external) should be there too. This will not only ensure check against faulty judgements, but result in a continuous improvement process.

As the Judciary modernizes, there is a lot to appreciate about it compared to what it was, in having better systems and procedures and better qualified judges. However, the comparison shouldn't be with the past and instead should be with peers at the present. Law is in its simplest form defined as 'reason without passion".  The judgements passed often defy reason and logic altogether.

As all constitutional bodies rise to the challenges our nation faces today, much remains to be desired from the Judiciary. It time they realize they are Drangpons and not Dasho's, and they have been empowered ( with authority, kabney, patang and Prados) for the sake of delivering justice and not to harass people in their courts with the show of kabney and patangs, or feel on the top of the world in their modern prados and completely forget what they are expected to do.

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