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{{Politics of Bhutan}}
The '''judicial system of Bhutan''' is the purview of the [[Royal Court of Justice]], the judicial branch of the [[government of Bhutan]] under the [[Constitution of Bhutan|Constitution of 2008]]. The judicial system comprises the Judicial Commission, the courts, the police, the penal code, and regulations on ''jabmi'' ([[lawyer|attorney]]s).
==Judicial system==
===National Judicial Commission===
The National Judicial Commission was established in 2001 as part of Bhutan's Civil and Criminal Procedure Code.<ref name=CCP>{{cite web|url=http://www.nationalcouncil.bt/images/stories/CivilNCriminal_En_01.pdf |title=The Civil and Criminal Procedure Code of Bhutan 2001 |format=PDF |publisher=[[Government of Bhutan]] |date=2001-07-23 |access-date=2011-01-04 }}{{dead link|date=April 2017 |bot=InternetArchiveBot |fix-attempted=yes }}</ref> It began as a body appointed by the [[Druk Gyalpo]] and chaired by the Chief Justice of Bhutan, also a royal appointee.<ref name=CCP/> In 2001, the number of council members was not codified.
The Commission was reshaped with the enactment of the Judicial Service Act of 2007.<ref name=JSA>{{cite web|url=http://www.nationalcouncil.bt/images/stories/Judicial_Ser_En_07.pdf |title=The Judicial Service Act of Bhutan 2007 |format=PDF |publisher=[[Government of Bhutan]] |date=2007-02-20 |access-date=2011-01-04 }}{{dead link|date=April 2017 |bot=InternetArchiveBot |fix-attempted=yes }}</ref> Its membership was codified to include the chairperson of the Legislative Committee of the [[National Assembly of Bhutan|National Assembly]], the Attorney General, the senior most Associate Justice (Drangpon) of the Supreme Court, and the Chief Justice of Bhutan as Chairperson.<ref name=JSA/> The Commission advises the [[Druk Gyalpo]] on judicial appointments (the Chief Justice of Bhutan and the Drangpons of the Supreme Court and High Court – also the members of the Commission itself). The Commission also advises the Druk Gyalpo on the establishment of courts and tribunals in addition to those established by law. With the enactment of the [[Constitution of Bhutan]] in 2008, the Commission membership was reduced to four persons: the Chief Justice of Bhutan as Chairperson, the senior most Drangpon of the Supreme Court, the Chairperson of the Legislative Committee of the National Assembly, and the Attorney General<ref name=CoBE/> (Art. 2) All members of the Committee except the National Assembly Committee Chairperson remain royal appointments.
The Judicial Service Act of 2007 also established the Royal Judicial Service Council, an administrative agency ancillary to the National Judicial Commission. It has seven members: the Chief Justice of the High Court; the Registrars General of the Supreme Court and High Court; one sitting Drangpon of the Supreme Court; two Drangpons of the Dzongkhag Courts; and one Drangpon of the Dungkhag Courts on a two-year rotational basis. No Supreme Court Drangpon may simultaneously sit on both the Commission and the Council. The Royal Judicial Service Council determines and administers the organizational structure, budgetary, and personnel requirements of the judiciary. The Council is also empowered to create and abolish posts other than those of the Supreme Court and the High Court Drangpons, regulate higher or continuing legal education, and oversee the Judicial Service Selection Examination. All decisions of the Council must be reviewed by the Chief Justice of Bhutan.<ref name=JSA/>
The Judicial Service Act codified the requirement that those in judicial service attain at least a [[bachelor of laws]], including support personnel ([[Law clerk|clerks]]). Drangpons of the Dzongkhag and Dungkhag Courts are required to attain a postgraduate diploma in National Law. Prior to the Act, judges were selected from among civil servants. Other qualifications, such as natural born citizenship, lack of foreign relations, and political detachment are imposed under the Act. The Act also established rules of judicial conduct and promotion criteria.<ref name=JSA/>
The Judicial Service Act of 2007 also codified aspects of the Bhutanese judicial system that appear in the [[Constitution of Bhutan|Constitution of 2008]], namely the function of the National Judicial Commission, the roles and appointments of the upper judiciary, and the general framework of the court system. Insofar as the Judicial Service Act is not inconsistent with the Constitution, it remains in effect.<ref name=CoBE/>
===Court system===
{{main article|Royal Court of Justice}}
The ultimate authority of the judiciary and on the interpretation of laws is the [[Royal Court of Justice]]. Its constitutional mandate is 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.<ref name=CoBE/> (Art. 21) The Royal Court of Justice is composed of the [[Supreme Court of Bhutan|Supreme Court]], the [[High Court of Bhutan|High Court]], the [[Dzongkhag Court]]s, the [[Dungkhag Court]]s, and such other courts and tribunals as may be established by the King on the recommendation of the National Judicial Commission.
Under the Constitution, as under the earlier Judicial Service Act, the [[Druk Gyalpo]] appoints most of the upper Judicial branch: the Chief Justice of Bhutan and the Drangpons (Associate Justices) of the Supreme Court; the Chief Justice and Drangpons (Associate Justices) of the High Court. These royal judicial appointments are made from among the vacant positions' peers, juniors, and available eminent jurists in consultation with the National Judicial Commission.<ref name=CoBE/>
====Attorney General====
{{main article|Attorney General of Bhutan}}
Within the court system, the [[government of Bhutan]] and its organs are advised and represented in civil and criminal proceedings by the [[Attorney General of Bhutan]]. The Attorney General is appointed by the [[Druk Gyalpo|King of Bhutan]] on the advice of the [[Prime Minister of Bhutan|Prime Minister]].<ref name=CoBE/> The Attorney General Act of 2006, wholly incorporated by the [[Constitution of Bhutan|Constitution of 2008]],<ref name=CoBE/> tasks the Attorney General with prosecuting crimes, safeguarding the impartiality of the judicial process, and disseminating information about the law among the people. The Attorney General also drafts [[Bhutanese legislation]] for submission to parliament, reviews legislation authored in parliament, and advises all levels of government regarding judicial decisions.<ref name=AG06>{{cite web|url=http://www.oag.gov.bt/wp-content/uploads/2010/07/Office-of-the-Attorney-General-Act-of-Bhutan-2006_English.pdf |format=PDF |title=Office of the Attorney General Act of Bhutan 2006 |publisher=[[Government of Bhutan]] |date=2006-06-30 |access-date=2011-01-23 |url-status=dead |archive-url=https://web.archive.org/web/20120424025111/http://oag.gov.bt/wp-content/uploads/2010/07/Office-of-the-Attorney-General-Act-of-Bhutan-2006_English.pdf |archive-date=2012-04-24 }}</ref>
====Civil and criminal procedure====
{{further information|Law enforcement in Bhutan}}
In the Bhutanese judicial system, civil and criminal procedure are defined by the Civil and Criminal Procedure Code of 2001. Foremost, the Code provides for open trials, equal protection of the laws, impartiality, and [[habeas corpus]] petition rights. Both civil and criminal trials in Bhutan are decided by one or more judges. After final appeal in the court system, the Code provides for appeal to the [[Druk Gyalpo]].<ref name=CCP/>
General procedure regulations include summons (including service), discovery (including privileges such as attorney work product), attachment of property, injunctions, interlocutory orders, receivership, and other legal mechanisms of [[common law]] civil actions. Its guarantees include general evidentiary standards, such as adversarial introduction of physical and testimonial evidence, cross examination, and production of exhibits. Unlike common law systems, however, Bhutanese judges are also authorized to investigate, inspect, or inquire into any matter before it. But as in common law systems, civil actions require parties prove their cases on a preponderance of the evidence. Also like common law jurisdictions, the prosecution's burden of proof (in order to find the accused guilty) is to prove guilt beyond reasonable doubt to the full satisfaction of the Court.<ref name=CCP/>
The Code's civil procedure section further provides venue, jurisdiction, and pleadings rules. Many aspects are identical to common law procedure, namely the [[Federal Rules of Civil Procedure|United States Federal Rules of Civil Procedure]], including terminology for claims, pleadings, and motions. In civil actions, the parties are at all times able to resolve their disputes before local government mediators.<ref name=CCP/>
The Code's criminal procedure section provides laws on arrest by police (with and without warrant), citizen's arrest, several kinds of search and seizure (also with and without warrant), charge, and trial procedure. Pleas, bargaining, and sentencing are also regulated under the Code, along with special rules for juvenile offenders. Nearly all the Code's criminal procedure is identical to that of any modern [[common law]] jurisdiction.<ref name=CCP/>
The Civil and Criminal Procedure Code of 2001 also sets forth the structure and jurisdiction of the Bhutanese court system, echoed in the Judicial Service Act of 2007 and preserved by the [[Constitution of Bhutan]] in 2008.<ref name=CCP/>
====Evidentiary standards====
Evidentiary standards are codified by the Evidence Act of 2005.<ref name=Evidence>{{cite web |url=http://www.judiciary.gov.bt/html/act/Evidence%20Act.pdf |title=Evidence Act of Bhutan, 2005 |publisher=Government of Bhutan |date=2005-11-29 |format=PDF |work=Royal Court of Justice Online |access-date=2010-11-13 |url-status=dead |archive-url=https://web.archive.org/web/20110427235040/http://www.judiciary.gov.bt/html/act/Evidence%20Act.pdf |archive-date=2011-04-27 }}</ref> The Act includes many modern, liberal [[English common law]] provisions including the exclusion of evidence that is unfairly prejudicial, exclusion of evidence of attempts to settle outside court, and exclusion of evidence of subsequent remedial measures. The Act, however, does not guarantee parties before a court to confront the witnesses against them when the court believes the witness' identity needs to be protected. Physical evidence on an issue renders documentary evidence on the same issue inadmissible unless the court finds there is substantive and reasonable ground for the physical evidence to be untrue and irrelevant. Thus, judges retain a high level of discretion in the admission of evidence in all cases and the ability to rebut witness evidence in certain others. Witnesses may be impeached by prior inconsistent statements or by evidence of prior bad acts involving dishonesty or [[fraud]]. There are also provisions protecting witnesses and victims of sexual crimes which render evidence about the witness or victim's sexual behavior inadmissible in most situations. Hearsay (including non-hearsay and hearsay exceptions), party admissions, burdens, and presumptions are also codified in a fashion similar to the [[United States]] [[Federal Rules of Evidence]].<ref name=Evidence/>
The Evidence Act also covers the requirements of [[contract law|contract]]s, legally termed "written agreements". Valid agreements require writing in the presence of one witness of each party; signature by all parties or another person himself duly empowered by a written agreement; and legal execution with a [[Seal (contract law)|stamp]]. Contracts are invalidated by an erased word; an alteration which is not counter-signed by the parties executing the agreement; a defective seal or signature; an improper legal stamp; the mental unsoundness, duress, or minority of a party; an objection by any party in a court within 10 days; or is illegal in nature or object. [[Parol evidence]] is admissible only in order to resolve ambiguities, apparently both patent and latent.<ref name=Evidence/>
====Practice of law====
The Jabmi Act sets forth regulations for the [[lawyer|legal profession]].<ref>{{cite web |url=http://www.judiciary.gov.bt/html/act/Jabmi%20Act,%202003..pdf |title=Jabmi Act |publisher=Government of Bhutan |date=2005-11-29 |format=PDF |work=Royal Court of Justice Online |access-date=2010-11-13 |archive-url=https://web.archive.org/web/20110427235047/http://www.judiciary.gov.bt/html/act/Jabmi%20Act,%202003..pdf |archive-date=2011-04-27 |url-status=dead }}</ref> Namely, the Act also details the role and responsibilities of the Attorney General of Bhutan. The body which regulates the legal profession is defined as the ''Jabmi Tshogdey'', analogous to a [[bar association]]. All ''jabmi'' must be members of this body in good standing, and the Act sets forth several requirements for membership. All ''jabmi'' must be Bhutanese citizens; persons of integrity, good character and reputation; not addicted to drugs; not of unsound mind or of mental infirmity; not adjudged bankrupt; not sentenced for criminal offences; have legal qualification recognized by the ''Jabmi Tshogdey''; have undergone the National Legal Course; and have passed the Bar selection examinations. The Constitution guarantees all persons the right to "consult and be represented by a Bhutanese Jabmi of [their] choice."<ref name=CoBE/> (Art. 7, § 21)
Notably, instances of repeated violations of the Jabmi Act by one ''jabmi'' resulted in a one-year prison sentence as well as multiple fines and monetary judgments against him.<ref name=BO-JA>{{cite web |url=http://www.bhutanobserver.bt/unlicensed-jabmi-jailed/ |title=Unlicensed Jabmi Jailed |date=2008-01-19 |publisher=[[Bhutan Observer]] |first=Tandin |last=Pem |location=[[Paro, Bhutan|Paro]] |access-date=2011-07-03 |url-status=dead |archive-url=https://web.archive.org/web/20120320065740/http://www.bhutanobserver.bt/unlicensed-jabmi-jailed/ |archive-date=2012-03-20 }}</ref>
===Penal system===
{{main article|Law enforcement in Bhutan}}
Under the Royal Command of [[Druk Gyalpo]] [[Jigme Singye Wangchuck]] in 1995, the [[High Court of Bhutan|High Court]] started drafting the Penal Code, which was enacted by the [[National Assembly of Bhutan|National Assembly]] in the August 2004. The Penal Code is the consolidation of collection of separate acts and sections of the ''Thrimzung Chhenmo'' enacted between 1959 and 1990.<ref>{{cite web |url=http://www.judiciary.gov.bt/html/act/PENAL%20CODE.pdf |title=Penal Code |publisher=Government of Bhutan |date=2004-08-11 |format=PDF |work=Royal Court of Justice Online |access-date=2010-11-13 |url-status=dead |archive-url=https://web.archive.org/web/20110706163637/http://www.judiciary.gov.bt/html/act/PENAL%20CODE.pdf |archive-date=2011-07-06 }}</ref> It is intended to reinstate dignity to the victims of crime and increase the possibilities for rehabilitation of offenders. It remains intact insofar as it is consistent with the [[Constitution of Bhutan|Constitution of 2008]]. While modern punishments include [[imprisonment]] and [[fine (penalty)|fine]]s, [[capital punishment in Bhutan]] has been outlawed since March 20, 2004.<ref name=CoBE/><ref name=Kuensel>{{cite web |url=http://www.kuenselonline.com/modules.php?name=News&file=article&sid=3887 |title=Capital punishment abolished in Bhutan |publisher=[[Kuensel]] |author=Kinley Dorji |date=2007-03-27 |access-date=2011-02-27 |archive-url=https://web.archive.org/web/20110713173401/http://www.kuenselonline.com/modules.php?name=News&file=article&sid=3887 |archive-date=2011-07-13 |url-status=dead }}</ref>
===Police force===
{{main article|Royal Bhutan Police|Law enforcement in Bhutan}}
Under Article 28 § 3 of [[Constitution of Bhutan]], the Royal Bhutan Police, as a trained uniform force under the [[Ministry of Home and Cultural Affairs|Ministry of Home Affairs]], are primarily responsible for maintaining law and order and prevention of crime, and are also considered to be an important part of the nation's security force.<ref name=CoBE>{{cite web|url=http://www.constitution.bt/TsaThrim%20Eng%20(A5).pdf |format=PDF |title=Constitution of the Kingdom of Bhutan (English) |publisher=Government of Bhutan |date=2008-07-18 |access-date=2010-11-13 |url-status=dead |archive-url=https://web.archive.org/web/20110706162637/http://www.constitution.bt/TsaThrim%20Eng%20%28A5%29.pdf |archive-date=2011-07-06 }}</ref> Furthermore, the Royal Bhutan Police are empowered with some quasi-judicial powers, namely to prosecute suspects and to summon witnesses.<ref name=PA09>{{cite web |url=http://www.nationalcouncil.bt/images/stories/RBP_Eng_Dzo_09.pdf |format=PDF |title=Royal Bhutan Police Act 2009 |publisher=[[Government of Bhutan]] |year=2009 |access-date=2011-01-07 }}{{dead link|date=December 2017 |bot=InternetArchiveBot |fix-attempted=yes }}</ref>
==History of the judicial system==
[[Bhutan]]'s civil and criminal codes are based on the '''[[Tsa Yig]]''', a code established by [[Zhabdrung Rinpoche|Shabdrung]] [[Shabdrung Ngawang Namgyal|Ngawang Namgyal]] in the seventeenth century. The Tsa Yig was revised in 1957 and ostensibly replaced with a new code in 1965.<ref name=cs1/> Historically, in Bhutan's [[judiciary|judicial]] system, the [[Druk Gyalpo|King of Bhutan]] played an active role in the selection and retention of judges, as well as adjudication. Judicial appointments were made by the monarch, and until 2008, could be recalled by him at any time. Furthermore, the monarch was the final [[appeals court|court of appeal]] (the "Supreme Court of Appeal").
During the reign of the [[list of rulers of Bhutan|Third King]], [[Druk Gyalpo]] [[Jigme Dorji Wangchuck]], the [[National Assembly of Bhutan|National Assembly]] enacted the first comprehensive codified laws known as the ''Thrimzhung Chhenmo'' ("Supreme Law") in 1953, which contain almost all modern categories of criminal offenses and their penalties.<ref name=ActRule>{{Cite web |url=http://www.judiciary.gov.bt/html/act/act.php |title=Acts and Rules |publisher=Government of Bhutan |work=[[Royal Court of Justice]] Online |access-date=2010-11-12 |archive-url=https://web.archive.org/web/20101102222616/http://www.judiciary.gov.bt/html/act/act.php |archive-date=2010-11-02 |url-status=dead }}</ref> The 1965 code, however, retained most of the spirit and substance of the seventeenth-century code. Family problems, such as marriage, divorce, and adoption, usually were resolved through recourse to [[Dharma (Buddhism)|Buddhist]] or [[Hindu law|Hindu religious law]]. As late as 1991, village heads often judged minor cases and district officials adjudicated major crimes.<ref name=cs1>{{cite book |last1=Worden |first1=Robert L. |last2=Savada |first2=Andrea Matles (ed.) |title=Nepal and Bhutan: Country Studies |chapter=Criminal Justice |edition=3rd |year=1991 |publisher=Federal Research Division, [[United States Library of Congress]] |isbn=0-8444-0777-1 |url=https://archive.org/details/nepalbhutancount00sava |access-date=2010-10-02 |url-access=registration }}{{PD-notice}}</ref>
Trials in the 1980s were public, and it was the practice of the accuser and the accused each to put their cases in person to judges. There were no lawyers in Bhutan's legal system until the 1980s, and decisions were made on the facts of each case as presented by the litigants. Judges appointed by the [[Druk Gyalpo]] were responsible for investigations, filing of charges, prosecution, and judgment of defendants. Serious crimes were extremely rare throughout the twentieth century, although there were reports of increased criminal activity in the 1980s and early 1990s with the influx of foreign laborers, widening economic disparities, and greater contact with foreign cultures.<ref name=cs1/>
Arrests could be made only under legal authority. Exile, stated as a punishment in the 1953 Constitution of the [[National Assembly of Bhutan|National Assembly]], and its 1968 revision, was generally unused as a form of punishment; mutilation was abolished in 1965. Fines, according to various reports, ranged from the equivalent of US$10 to US$55, and jail sentences from seven days to one month were levied against citizens who violated the [[driglam namzha]] a compulsory but not widely enforced 1989 royal decree that they wear the national dress at formal gatherings to preserve and promote [[Bhutanese culture]]. With respect to international criminal law, in 1988 the National Assembly ratified a [[SAARC]] convention on terrorism, which Bhutan has consistently condemned in international forums. It provided for extradition of terrorists.<ref name=cs1/>
Until the enactment of the [[Constitution of Bhutan]] in 2008, the '''Royal High Court of Bhutan''' was the highest court in [[Bhutan|the kingdom]] . The Royal High Court had [[original jurisdiction]] over the twenty [[dzongkhag]]s of the nation.
==See also==
*[[Royal Court of Justice]]
*[[Constitution of Bhutan]]
*[[Capital punishment in Bhutan]]
*[[Bhutanese legislation]]
*[[Royal Bhutan Police]]
*[[Law enforcement in Bhutan]]
==References==
{{Reflist|2}}
{{Bhutanese law}}
{{Judiciaries of Asia}}
{{DEFAULTSORT:Judicial System Of Bhutan}}
[[Category:Judiciary of Bhutan| ]]
[[Category:Government of Bhutan]]
[[Category:Law of Bhutan]]