Research Guide to the Legal System of the Kingdom of Bhutan

By Ershadul Karim and Chhime Tshoke Dorjee

Ershadul Karim is a non-practicing lawyer of Bangladesh Supreme Court and currently the Editor of Chancery Law Chronicles, the first ever-Online Database of Bangladesh Laws.

Chhime Tshoke Dorjee is a practicing lawyer in the Kingdom of Bhutan currently working in the Ministry of Education, Royal Government of Bhutan.

Published September 2011
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Introduction

The Bhutanese name for the Kingdom of Bhutan is Druk Yul, which means “Land of the Thunder Dragon”. The country lies hidden in the folds of the eastern Himalayas and sandwiched between the two giant countries of India in the south and China in the north. Bhutan, often revered as the “Land of the Peaceful Dragon”, is still regarded as one of the last “Shangrilas” in the Himalayan region because of its remoteness, its spectacular mountain terrain, varied flora and fauna and its unique ancient Buddhist monasteries. With a total area of 38,398 sq kilometers, Bhutan lies between 88° 45’ and 92°10’ longitude east and 26°40’ and 28°15’ north. It is a mountainous country except for a small flat strip in the southern foothills. In the north, Bhutan borders with Tibet, the autonomous region under China; in the West with the Indian state Of Sikkim; in the East with the Indian state of Arunachal Pradesh and in the south with the Indian states of Assam and West Bengal.

Bhutan, a purely Buddhist Himalayan Kingdom, is unsurpassed in its scenic majesty and vibrant culture as 72 percent of the country is under forest cover. A country of 750,000 people, the Kingdom shares with Nepal the world’s greatest concentration of mountains and living heritage of Buddhism. The territory of Bhutan comprises twenty Dzongkhags (administrative and judicial district) with each Dzongkhag consisting of Gewogs (a group of villages) and Thromdes (third-level administrative division) (article 1(4), the Constitution of the Kingdom of Bhutan, 2008).

Historical background

Buddhism has played a key role in shaping the life of people, history, government, culture, economy, judiciary, etc. in Bhutan. Though the recorded history of the country traced back from the 6th Century AD, it is the visit of Guru Rimpoche in the 8th century AD that Buddhism flourished in Bhutan. In 747 AD, Guru Rimpoche (also known as Padma Sambhava) visited the land and Buddhism took firm root in the country. In the first half of the 13th century the spiritual master, Phajo Drugom Zhingpo, the precursor of the Drukpa Kagyu tradition of Mahayana Buddhism arrived the country and ultimately gained pre-eminence. However, it is the arrival of Zhabdrung Rimpoche (the precious jewel at whose feet one submits) that one of the most dynamic era in the history of Bhutan started. The religious and secular powers were not clearly delineated until 1616 when Zhabdrung Ngawang Namgyal, the great leader of the Drukpa school of Mahayana Buddhism, established the dual system of governance with the Je Khenpo (chief abbot) as the head of the spiritual and the Desi, as the head of the temporal. The Zhabdrung constructed numerous Dzongs, monasteries, and religious institutions bringing people from all walks of life under one faith and firmly instituted Drukpa Kagyu as the state religion. The first Dzong that he built, Simtokha Dzong in 1627, stands majestically as one of the sentinels of the Bhutanese identity, a few miles away from present day Thimphu. The Zhabdrung’s dual system of government, ruled by 54 Desis and 60 Je Khenpos, steered Bhutan from 1651 until the birth of the Wangchuck dynasty and establishment of hereditary Monarchy in 1907. But eventually Bhutan became a two-party parliamentary democracy after elections in March 2008. In the election, the pro-monarchy Bhutan Harmony Party of former Prime Minister Jigme Thinley had a landslide victory and subsequently formed the government.

Read the History of Bhutan in brief, Prehistory, Introduction of Buddhism in Bhutan, the age of the Zhabdrung, Medieval Bhutanese society, How Europe heard about Bhutan, Establishment of Monarchy in the website of Key to Bhutan.

For a chronological history of the Kingdom of Bhutan, visit, Druk Asia.

National Symbols of Bhutan

The First Schedule to the Constitution provides that the National Emblem of Bhutan is a circle that projects a double diamond thunderbolt placed above the lotus. There is a jewel on all sides with two dragons on vertical sides. The thunderbolts represent the harmony between secular and religious power while the lotus symbolizes purity. The jewel signifies the sovereign power while the dragons (male and female) stands for the name of the country Druk yul or the Land of the Dragon.

The National flag is rectangle in shape that is divided into two parts diagonally. The upper yellow half signifies the secular power and authority of the king while the lower saffron-orange symbolizes the practice of religion and power of Buddhism, manifested in the tradition of Drukpa Kagyu. The dragon signifies the name and the purity of the country while the jewels in its claws stand for the wealth and perfection of the country.

The national flower is Blue Poppy (Meconopsis horridula), national tree is cypress (Cupressus torolusa), national bird is the raven, national animal is the Takin (burdorcas taxicolor). Bhutan is a multi-lingual society. Today, about 18 languages and dialects are spoken all over the country. The state language is Dzongkha, which in the olden times was spoken by people who worked in the Dzongs that was the seat of temporal and spiritual power. Later, Dzongkha was introduced as the national language of Bhutan.

The national anthem was first composed in 1953, became official in 1966 and finally placed in the Second Schedule to the Constitution, 2008. It is known as Druk Tshenden Kepay Gyalkhab Na (the Kingdom of Bhutan adorned with cypress trees).

Political System of Bhutan

The modern political history of Bhutan started from 1907 when the Bhutanese people unanimously enthroned Ugyen Wangchuck as the first hereditary King of Bhutan and later on by the successive monarchs of under the Wangchuck dynasty. In 1953, the Third King Jigme Dorji Wangchuck established the National Assembly (Tshogdu) in order to ensure a more democratic governance of the country. Every Gewog, a group of villages and an intermediate geographic administrative unit between dzongkhag and village, had an elected member representing the National assembly to enact laws and to discuss issues of national importance. In the year 1963, Royal Advisory Council (Lodoe Tshogde) was established as a link between the king, council of ministers and the people. The process of decentralization was extended by the Fourth King Jigme Singye Wangchuck in 1981 through the establishment of the Dzongkhag Yargay Tshogdu (District Development Assembly) and in 1991 through Gewog Yargay Tshogchung (County Development Assembly).

Finally, in 1998, the King handed over the power to rule the county to the cabinet ministers and he started to serve as the Head of the State while the government was managed by the Prime Minister. The process of drafting the Constitution of Bhutan was started because of a Royal command towards the enactment of a formal constitution from 2001 through a 39-member Constitution Drafting Committee comprising elected members of the people, monastic body, the judiciary and the executive arms of the government, headed by the Chief Justice of Bhutan, chief justice Lyonpo Sonam Tobgye. Finally, the Constitution of Bhutan was signed in a historic and sacred ceremony on 18th July, 2008.

In 2008, Bhutan witnessed a major shift in its political system with the first elections launched countrywide with a 79 percent voter turnout. The Druk Phuensum Tshogpa won a landslide victory to form Bhutan’s first democratic government. Today with 45 elected members, Lyonchen Jigme Y Thinley steers the government with just two opposition members from the People’s Democratic Party.

Under the 2008 Constitution, Bhutan is a Sovereign Kingdom and a Democratic Constitutional Monarchy (article 2). The Constitution is the supreme law of the land and seventeenth December of each year is observed as the National Day of Bhutan. The Supreme Court is the guardian of the Constitution and the final authority on its interpretation. (Article 1, the Constitution of the Kingdom of Bhutan, 2008). The Constitution, based on Buddhism (article 3) is greatly influenced by the Constitution of South Africa because of its strong protection of human rights. Article 7 of the Bhutanese Constitution provides for fundamental rights and includes most of the internationally recognized human rights e.g. civil and political rights and also provides that these rights as enshrined in article 7 are judicially enforceable.

The organs of the Bhutanese government comprise of the Legislature, Judiciary and the Executive and the article 1(13) of the Constitution ensures separation of these three organs. The ruling political party, the opposition and the National Council now forms the legislative body.

Legislature in Bhutan

Article 10 of the Bhutanese Constitution, 2008 provides for a bi-cameral Parliament which consists of Druk Gyalpo (the King of Bhutan), the National Council, which is the upper house and the National Assembly, which is the lower house shall have all legislative powers under this Constitution. It is the responsibility of the Parliament to ensure that the Government safeguards the interests of the nation and fulfils the aspirations of the people through public review of policies and issues, Bills and other legislations, and scrutiny of State functions. The members of Parliament shall be elected according to the Electoral Laws of the Kingdom. Article 11 deals with National Council whereas article 12 deals with the National Assembly. The tenure of both these houses is five years.

The National Council, which is required to convene at least twice in a year, consists of twenty-five non-political members, one member elected by the voters in each of the twenty Dzongkhags (administrative and judicial districts); and five eminent persons nominated by the Druk Gyalpo (the King). Besides the legislative functions, the National Council shall act as the House of review on matters affecting the security and sovereignty of the country and the interests of the nation and the people that need to be brought to the notice of the Druk Gyalpo, the Prime Minister and the National Assembly.

The National Assembly of Bhutan shall have a maximum of fifty-five members, elected from each Dzongkhag in proportion to its population, provided that no Dzongkhag shall have less than two members or more than seven members, for which purpose Parliament shall, by law, provide for each Dzongkhag to be divided into constituencies through appropriate delimitation, and for the voters in each constituency directly electing one member to the National Assembly. (Article 12(1)).

Executive in Bhutan

The government of Kingdom of Bhutan is of parliamentary form. The head of the State is the Druk Gyalpo (the King), whereas the head of the Government is the Prime Minister. Until the 1950s, Bhutan was an absolute monarchy whose sovereign was styled the Druk Gyalpo (“dragon king”).

Article 20 of the Constitution provides that the executive power in Bhutan be vested in the Lhengye Zhungtshog (Council of Ministers or Cabinet) which shall consist of the Ministers headed by the Prime Minister. The number of Ministers shall be determined by the number of Ministries required to provide efficient and good governance. The creation of an additional ministry or reduction of any ministry shall be approved by Parliament. The Lhengye Zhungtshog (Council of Ministers) shall aid and advise the Druk Gyalpo (the King) in the exercise of His functions including international affairs, provided that the Druk Gyalpo may require the Lhengye Zhungtshog to reconsider such advice, either generally or otherwise. The Prime Minister shall keep the Druk Gyalpo informed from time to time about the affairs of the State, including international affairs, and shall submit such information and files as called for by the Druk Gyalpo.

The Lhengye Zhungtshog assesses the state of affairs arising from developments in the State and society and from events at home and abroad; defines the goals of State action and determines the resources required to achieve them; plan and co-ordinate government policies and ensure their implementation; and represent the Kingdom at home and abroad. It also promotes an efficient civil administration based on the democratic values and principles enshrined in this Constitution and is collectively responsible to the Druk Gyalpo and to Parliament.

Bhutanese Legal System

Zhabdrung Ngawang Namgyal promulgated the first set of Bhutanese laws, the codification of which was completed in 1652 during the reign of the first temporal ruler, Deb Umzed Tenzin Drugyel. The Code, which serves as the foundation of the contemporary Bhutanese legal system, was based closely on Buddhist principles and addressed the violation of both temporal and spiritual laws. These laws contain specific reference to the ten pious acts, known as Lhachoe Gyewa Chu and the sixteen virtuous acts of social piety, referred to as the Michoe Tsangma Chudrug.

The spiritual laws are said to resemble a silken knot (dargye duephue) as the silken knot is light and loose at first but gradually tightens with the accumulation of negative deeds, whereas the secular laws are compared to a golden yoke (sergyi nyashing) that grows heavier and heavier with the degree of the crimes committed.

In 1959, the National Assembly, under the guidance of the Third King Jigme Dorji Wangchuck enacted the first comprehensive codified law code, the Thrimzhung Chhenmo or the Supreme Law, which covers almost all civil and criminal matters and includes sections on land law, marriage, inheritance, weights and measures, theft and murder. Although many of the chapters have been amended by subsequent legislation, the Thrimzhung Chhenmo is considered to be the basis for all the subsequent laws enacted in Bhutan.

The legal system of Bhutan is based on English common law. The Bhutanese Judiciary is entrusted to safeguard, uphold, and administer Justice fairly and independently without fear, favor, or undue delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access to Justice.

Laws of Bhutan

Constitution of the Kingdom of Bhutan, 2008

Laws of Bhutan in Bhutan Government Portal

Laws of Bhutan in Bhutannica

Laws of Bhutan in National Council of Bhutan

Rules and Regulations in Bhutan Government Portal

National Standards of Bhutan

Bills in National Council of Bhutan

National Library of Bhutan

Cabinet Secretariat of Royal Government of Bhutan

National Council of Bhutan

Tourism Council of Bhutan

Royal Court of Justice, Bhutan

The judicial authority of Bhutan is vested in the Royal Courts of Justice comprising of the Supreme Court, the High Court, the Dzongkhag Court, the Dungkhag Court and such other Courts and Tribunals as may be established from time to time by the Druk Gyalpo on the recommendation of the National Judicial Commission. (Article 21)

The Druk Gyalpo appoints the Chief Justice of Bhutan for a period of five years from among the Drangpons (Judge or Justice of a Royal Court of Justice) of the Supreme Court or from among eminent jurists. The Chief Justice, appointed for five years and four Drangpons, appointed for a period of ten years form the Supreme Court, the highest appellate authority to entertain appeals against the judgments, orders, or decisions of the High Court. Besides, the Druk Gyalpo may seek the opinion of the Supreme Court in cases of public importance.

The Structure of the Courts

The Bhutanese legal system has a four-tier court system, Supreme Court, the High Court, the Dzongkhag Courts, the Dungkhag Courts. The Supreme Court is the highest in the hierarchy, followed by the High, Dzongkhag and Dungkhag Courts. There are no courts or tribunals of special jurisdiction in Bhutan.

The Supreme Court

The Supreme Court is the highest court of law in Bhutan and is presided over by the Chief Justice of Bhutan. It has appellate, advisory and extra-territorial jurisdiction. Where a particular case is not covered or is only partially covered by any law in force and is not otherwise excluded from adjudication, the Supreme Court has original jurisdiction over it. The Supreme Court is a court of record and is the guardian of the Constitution and the final authority on its interpretation. (Article 1, the Constitution of Bhutan, 2008).

Under the present Constitution, the Chief Justice and three associate Justices of the first Supreme Court of Bhutan were administered the oath of office and secrecy on 21st February 2010. At present, the Supreme Court of Bhutan is temporarily housed in the Kuengachholing State Guest House.

The High Court

The High Court, established in 1958, is made up of three Benches. A minimum of two judges comprises a Bench. Like the Supreme Court, the High Court exercises original, appellate and extra-territorial jurisdiction. It also possesses inherent powers and exercises extra-territorial jurisdiction on the basis of international law principles. It presently stands at the apex of the Bhutanese judicial system and is presided over by the Chief Justice of Bhutan.

The Dzongkhag Court

Subordinate to the High Court in Bhutan, there is a Dzongkhag or District Court in each Dzongkhag (presently, there are total twenty). The first Dzongkhag Court was established in 1960/61. Usually, the Dzongkhag Court is made up of one Bench, though there are some Dzongkhag Courts that have division Benches. The Dzongkhag Court exercises original jurisdiction in all cases within its territorial jurisdiction and hears appeals from an order of Judgment of a Dungkhag court. Such Courts presided over by a Dzongkhag drangpon who is assisted by one or more drangpon rabjams.

The Dungkhag Court

The Dungkhag or Sub-District Court, presided over by a Dungkhag Drangpon, established in 1978, is the lowest formal court in Bhutan. At present, there are three such courts in the country having original jurisdiction in all cases within their territorial jurisdiction.

Research

There is a Research and Training Bureau of the Judiciary which was established in 1994 under the Royal Command to conduct researches on the sources of Bhutanese laws, court etiquette and manners, formal address and titles, legal terminology, in-service legal education, including sessions on procedural code, information technology, and Bhutanese literature so that the judicial staffs can develop their skills and knowledge in legal profession.

The Registrar General

The Registrar General, appointed by the Chief Justice of Bhutan for a period of three years, heads the administrative and finance division of the Courts. He is supported by other administrative staff, and is responsible for the overall administrative work in the Supreme Court and the subordinate Courts. His responsibility includes the appointment, transfer, supervision and Human Resource Development of Court staffs.

Read the Structure of the Royal Court of Justice, here.

Read the Jurisdiction of the Royal Court of Justice, here.

Read about the Justices of the Royal Court of Justice, here.

Read the Crime and Society Report on Bhutan, here.

Trial System of Court

The Bhutanese legal system is primarily based on the adversarial system of procedure with some elements of the inquisitorial system. The courts take no sides and the judges are umpires of the litigants. The judges allow uninterrupted hearing to the litigants or their jabmis (counsel). They are given opportunity to make presentation to the Court and answer questions posed by the judges. The plaintiff and the defendant or their jabmis can submit evidence to substantiate their legal contentions and the Courts decide cases based on the facts and issues submitted by the parties.

Thus, the burden to proof beyond reasonable doubt lies on the prosecutor in a criminal case and on the plaintiff to prove his case by a Fair Preponderance of the Credible Evidence in a civil action.

Read details about the Trial System of Courts in Bhutan, here.

Read the Hearing Procedure, here.

Court Fees

Presently, the parties in the Civil case have to pay only 100 Bhutanese Ngultrum (Bhutanese currency) [1 USD = 44.5 Bhutanese Ngultrum] as Court Fee in High Court, while the Court Fees in Dzongkhag and Dungkhag is only 50 Bhutanese Ngultrum.

Under the Bhutanese legal system, the Court has to establish a hearing calendar (section 79 of the Civil and Criminal Procedural Code). Usually in a day, a maximum of five hearing is to be scheduled. This is done so that the Drangpon and the Bench Clerks are not overburdened with too many cases and that there is proper time management.

Individual calendars explicitly link the management of a case to a particular judge, making judges accountable to the public.

Judicial Process

The Judicial Process in Bhutan follows the following stages-

Registry of a complaint =>Miscellaneous Hearing => Preliminary Hearing =>Production before Judge => Show Cause => Opening Statement => Defence Reply => Rebuttal => Evidence => Independent testimony =>Exhibit => Cross Examinations =>Judicial Investigation=>Closing Statement =>Judgment

Court Orders

The Court issues a number of orders in the form of direction, writs, injunction, and compliance as per the provisions of the Civil and Criminal Procedure Code of Bhutan. The Court also issues summon order to the litigants to appear before the Court on the specific date. Failing to honor the summon order may entail the dismissal of a case, passing of a default judgment or be liable for contempt.

Find all relevant laws relating to Judiciary, here.

Find the relevant Judicial Forms here.

Find the 2011 Judgments of the Supreme Court and 2008-2011 Judgments of the High Court here.

Read the Judicial Reforms (institutional, procedural and penal) in Bhutan, here.

National Judicial Commission and Royal Judicial Service Council

The National Judicial Commission of Bhutan, established under a Royal Decree in 2003, is responsible for the appointments and removal of the Drangpons of the Courts in Bhutan. The members of the National Judicial Commission are the Chief Justice of Bhutan as the Chairperson, the senior most Drangpon of the Supreme Court, the Chairperson of the Legislative Committee and the Attorney General.

The Druk Gyalpo appoints the members of the Commission by warrant under His Hand and seal. The Commission meets twice a year at such time and place as designated by the Chairperson. The Commission, usually meets in the Chamber of the Chief Justice in the High Court, operates through a network of Committees. These Committees submit the findings and report to the Commission.

Under Article 21 of the Constitution of Bhutan, 2008 and the Judicial Service Act, 2007, the Commission submits recommendation to His Majesty the Druk Gyalpo with regard to the appointment of the Chief Justice of Bhutan and the Drangpons of the Supreme Court; and the Chief Justice and the Drangpons of the High Court, to the establishment of Courts and Tribunals, etc. A Drangpon may be censured or suspended by a command of the Druk Gyalpo on the recommendation of the Commission for proven misbehavior, who, in the opinion of the Commission, does not deserve impeachment.

The Judicial Service Act of 2007 also provides for a Royal Judicial Service Council, which with the assent of the Chief Justice of Bhutan shall have the full authority to determine and administer the organizational structure, budgetary and personnel requirements of the Judiciary.

Read the Judicial Service Act of Bhutan, 2007, here.

Office of the Attorney General

Article 29 of the Constitution of Bhutan, 2008 deals with the autonomous office of Attorney General, who as the chief legal officer of the Kingdom shall be the legal advisor to and legal representative of the Government. The Office of the Attorney General Act of Bhutan, 2006 was enacted to promote and impart justice through fair, impartial and just proceedings in civil and criminal cases, by enacting enlightened laws and to uphold the rule of law, natural justice and the Constitution through responsive and accessible legal process.

Read the Office of the Attorney General Act of Bhutan, 2006, here.

The King of Bhutan appoints appoint an eminent jurist as the Attorney General on the recommendation of the Prime Minister. Chapter 3 of the Office of the Attorney General Act, 2006 (sections 11-18) deals with the functions and section 24 deals with the duties and responsibilities of the Office of Attorney General. Chapter 5 provides for Code of Conduct of Office of Attorney General.

Section 50 of the 2006 Act provides that on grounds of physical, mental, or other incapacity of a permanent nature, or any violation of this Act; or Conviction under any other law the Prime Minister of Bhutan may remove the Attorney General.

Legal Profession

The law relating to legal profession in Bhutan is the Jabmi Act, 2003, which, according to the chief justice, Lyonpo Sonam Tobgye, “will reaffirm and uphold the cardinal principle of fair trial with the help of Jabmi (legal counsel) to protect and establish people’s rights at all stages of proceedings”. The Act, a guideline for professional ethics, duties, and responsibilities of jabmis, is expected to bring in professionalism to the legal system and “enhance the effectiveness and fairness in the administration of justice”. Section 2 and Section 14 of the Jabmi Act, 2003 provide for the establishment of a bar council (Jabmi Tshogdey) and a bar association (Jabmi Thuentshog). The bar council, according to the Jabmi Act, will have the attorney general as the ex-officio chairperson, two retired drangpons (Judges) of the Supreme Court/High Court, president of bar association as the vice chairperson, chairpersons of each disciplinary committee and three elected members among the lawyers. The bar council will assist the Court, promote and support law reforms, and conduct lawyer selection examinations. The bar association will have an elected president, enrolled members, and an executive body elected by the members. The functions of the association includes assisting the court in expediting the cases and ensuring just, fair, and prompt dispensation of justice, and upholding the integrity of the lawyers.

The Act also states that no person would be qualified to practice as a jabmi unless he or she is enrolled with the Jabmi Tshogdey and no retired drangpon would be allowed to practice as a jabmi. The Act also states that an eligible jabmi, among other criteria, must be a Bhutanese, should have legal qualification recognized by the Jabmi Tshogdey, should have undergone the national legal course, and should have passed the Bar selection examinations.

The concept of jabmi featured in various sections of the Bhutanese law. Someone embroiled in a legal dispute has always sought the aid of the jabmi. The Bhutanese legal system provided litigants the option either to represent themselves or to seek legal counsel. It also had an additional clause permitting a member of the family to represent the case on the litigant’s behalf. Therefore, the legal counsel was not an alien practice. It was ingrained in the system.

Every district court or village had jabmis. According to sources, the presence of the jabmi has been recorded as far back as 1616, when the Zhabdrung came to Bhutan. They were mostly village elders and retired government functionaries respected in their communities for their wisdom, experience and articulate speech. Their clients paid them in manual labor, agricultural produce or, in some cases, a small piece of a property that was in dispute.

Although they had always been consulted by generations of Bhutanese litigants, they were never a professional class of people with the requisite credentials common to lawyers and legal counsel elsewhere in the world. From 1996 the jabmi was licensed and the profession formalized by the government.

Read the Jabmi Act of Kingdom of Bhutan, 2003, here.

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