Justice in the land of the Thunder Dragon (2003) [i]
Bhutan, the land of the Thunder Dragon, is a small Himalayan kingdom, to the east of Nepal, squeezed between India and Tibet . Until only a few decades ago, it was a feudal Shangri-La. In the nineteenth century, British military attacks from northern India were repulsed by Bhutanese warriors armed only with bows and arrows. The first hereditary king was only crowned in 1907. Money was introduced in the middle of the twentieth century. Serfdom was not abolished until the 1950s. The first roads were not built until the 1960s. Television was banned until 1999. Despite steps towards modernisation in recent years, it remains a land of wonderful contrasts. It is a Buddhist country, yet the king has four wives (all sisters) and many houses are adorned with huge erect penises to ward away demons and evil spirits. Selling tobacco is banned in some provinces, yet cannabis grows wild by roadsides and is fed to pigs. There are signs in some places banning T-shirts as indecent, yet almost all Bhutanese men wear ghos - a cross between a knee length dress and a dressing gown, with scarves and often Paisley socks underneath.
It is predominantly a peaceful rural country. Eighty per cent of people live more than an hour's walk from a paved road. There are however several armed political groups from north east India, including the United Liberation Front of Assam, living in camps in eastern and southern Bhutan . Occasionally there are robberies. Kuensel, the only national newspaper which is published weekly, recently reported that three robbers had used a pistol and a knife in broad daylight to rob a man and a woman in Phuentsholing. They made their getaway on a bike which they abandoned, before running through the jungle to the Indian border. There is a red and yellow notice outside the only bank in Trongsa, the former capital, which reads "NOTICE. ENTRY OF PERSONS CARRYING FIRE ARMS AND/OR ANY OTHER ARTICLES CAPABLE OF BEING USED AS A WEAPON OF OFFENCE INTO BANK PREMISES IS STRICTLY PROHIBITED." The bank is protected by an elderly man sitting outside with an even older gun.
Generally though there is little crime. On average police arrest 300 adult criminals each year in the capital Thimphu . Since 1990, 534 juveniles have been arrested and convicted of crimes in Thimphu . This included 387 juvenile arrests for theft and burglary and 21 cases of drug abuse. Since 1999 there has been a slight increase in juvenile drug arrests, with teenagers being caught sniffing correction fluid and dendrite and "popping pills". First time drug abusers are normally warned and their parents informed. The youngest children arrested have been two eight year olds, one for pick pocketing and the other for sniffing dendrite.
Bhutan 's legal system dates back to the seventeenth century. The first legal codification, which was completed in 1652, was based on the fundamental teachings of Buddhism. It addressed the violation of both ecclesiastical and temporal laws. It enshrined ten pious acts, which prohibited taking life, theft, engaging in sexual misconduct, lying, speaking harshly, slandering, engaging in worthless chatter, being covetous, being malicious and holding wrong views. The ecclesiastical laws are said to resemble a silken knot which is easy and light at first, while temporal laws are like a golden yoke, which grows heavier and heavier with the degree of crimes. Despite reforms over the years, these basic principles of Buddhism and natural justice are still upheld in Bhutanese law.
They are now enshrined in a modern codes, including a Civil and Criminal Procedure Code which was passed by the National Assembly in 2001. It provides that everyone is equal before the law. It prevents arbitrary arrest and provides for courts to issue arrest and search warrants. Anyone detained in connection with a criminal offence is to be produced before a court within 24 hours of arrest, and there is to be a preliminary hearing within ten days. There is no legal aid, but defendants have the right to be represented by a jabmi (a Bhutanese lawyer), a friend or a member of the family. In 1996, the High Court conducted the first professional training of jabmis. The courts place a strong emphasis on eliminating delay. In 2001, 6,079 criminal and civil cases were decided within 108 days. Only 1,951 took longer than 108 days. Mediation plays a strong role in civil cases.
There are three levels of court, which combine criminal and civil functions - the High Court (Royal Courts of Justice), the District Courts (dzongkhag) and the Sub-district Courts (dunghag). All but the most serious cases are initially heard in sub-district or district courts by a judge sitting alone without jury. There is a right of appeal to the High Court and finally to the King. He has the prerogative to commute a sentence of death or imprisonment, to grant amnesty, and to pardon or grant leniency to any person convicted of an offence.
Judges are appointed by the King on the recommendation of the National Judicial Commission which comprises the Chief Justice, two High Court Judges, the secretary of the National Assembly and a member of the Legal Office (i.e. head of the prosecution service). All judges have international LLBs, most commonly from India or the USA . They then take a two-year course in Bhutanese law. All judges, even district court judges, wear long swords.
Most courts are to be found inside dzongs. These are large, strategically placed castles of white-washed stone and colourfully painted wood, with paved courtyards. Most were built in the seventeenth century. The dzongs epitomise the very close relationship of temporal and ecclesiastical power in Bhutanse society. They house many provincial administrative functions (red and yellow notices proclaim "Office for the Preservation of Antiques" "Census and Immigration", "Accounts" etc) and large numbers of Buddhist monks.
The District Court in Trongsa dzong is typical. Shaven headed monks in crimson robes, going about their daily lives, walk past the entrance. Ordinary people, who have come to register cases or change their names are waiting outside. Only those in correct dress are allowed into the dzong. For men, this is a gho with a scarf tied over the shoulder in the prescribed manner. For women, it is a kira, a long skirt, often in a checked or tartan material, with a short jacket and a sash. The courtroom is entered via a small dark ante-room with a policeman at a desk. The courtroom is only slightly larger. There is a low ornate Indian style throne on which the judge sits cross-legged. There is a gavel on a small ledge in front. Behind and on either side of the judge there are two Bhutanese flags, half yellow, representing the king's temporal authority, half orange representing the spiritual power of Buddhism, with a white druk or thunder dragon in the middle. There is a also a photograph of the fourth and current King, His Majesty Jigme Singye Wangchuck, wearing a yellow gho. There are no seats for advocates or litigants. They stand in front of the judge. At the far end of the courtroom, there is a modern desk with a computer screen, a mouse, a laser jet printer and a few law books.
Bhutan retains the death penalty, but in practice is abolitionist. Most criminals are either fined or imprisoned. For minor offences, fines are common. For example, six farmers in Paro were recently fined Nu500 (the equivalent of a little less than £7) each by the Paro dzongkhag for harvesting rice before the fixed date. Custodial sentences for juveniles are half of those for adults. They are sent to the Youth Development and Rehabilitation Centre in Tsimasham in Chhukha province where they stay for two years. The aim is that they should study at the Tsimasham higher secondary school in the morning and learn productive skills such as hair-cutting, carpentry and plumbing in the afternoon. Currently the YRDC has nineteen inmates.
The most important question for any legal system is "Are the judges fair and honest?" It is perhaps a question which it is impossible for an outsider to answer, but one Bhutanese judge replied, "It depends upon the judge." The National Judicial Commission has wide powers to punish erring judges and in recent years some judges have been demoted and others have had "their services terminated for offences". It is clear though that the government is working hard to build public confidence and respect for the judiciary. All the signs are that it is succeeding.