Section 24 of the Jabmi Act 2003 has been proposed to be deleted which prohibited ex-judges from private practice. Instead a new section allowing ex-judges (retired) to take up private practice is being proposed and has been passed in the National Assembly, to be passed in the coming days in the National Council. This is at the heart of the amendment in my opinion.
A bit of history that is not too old to recollect. In the 1st Constitutional and probably the only case a few years back when the Opposition took the Executive to court for violation of law, not on substantive but on procedural, a development was that an ex-judge (member of the Opposition) was allowed to appear before the court. The reasoning was based on interpretation of the use of the word ‘retired’ in the Jabmi Act 2003. In the courts interpretation, put simplistically ‘retired’ applied to only those who completed their tenures incase of the High court and the Supreme court or superannuated for others; an interesting and important development.
Now to get back to the current topic. The new section proposed in the Amendment Bill seeks to open up private practice to retired judges. Personally this is great news. Many of our judges are very young, including the Chief Justice, would be engaged in a service that we require and allow them to make use of their skills post retirement. It only appears fair. However, on deeper thinking, the carefully thought and crafted proviso in the Jabmi Act 2003, by the Judiciary at a time when things could have been easily maneuvered for opening up, may be indicative of the serious concern within the Judiciary. Delivery of justice in a large part is affected by public perception. It is susceptible to perceptions of biases and corruption very often. We have been very lucky in Bhutan that the evolution process and development in the Judiciary has been led by the keen interest of our Kings. This is because Their Majesties recognized Justice as the source of peace. A unique and important institution, the Royal Advisory Council was created as part of the legislature, the executive and the judiciary. It greatly helped alley perceptions of biases and corruption in the justice system by allowing review outside of the Judiciary. However, the judiciary is now completely independent as envisioned in the Constitution after 2008. For most Bhutanese, the popular perception is that the Judiciary is unquestionable, atleast to the degree that the Executive and the Legislature is subject to. Understandably given the nature of public good it provides, however, it cannot be ignored that there maybe some basis of perceptions of biases and corruption like anywhere else. The Judiciary, given that the two other arms of State, the two Houses of Parliament and the Executive are electied and very vulnerable to political gimmick. The confidence in the Judiciary becomes even more crucial.
The Jabmi Amendment Bill needs objective thinking. It has far more ramifications to our justice system than we think. We are not just talking about amending, we are reversing an important principle of the law. It maybe easier to consider prohibiting sitting on a chair, far away from the difficult experiences of being a judge but the expectations of the profession cannot be ignored either. There are pros and cons but we must carefully weigh them before a reversal which would be difficult to remedy once decided. Allowing private practice would mean bringing to society experienced lawyers and allowing retired judges to continue living comfortably, all perfectly well. But with private practice, the idea of a justice system that is unbiased and just or atleast closer to it, may lose out to cynicism. Do the benefits outweigh the grave risks? In the next few days the National Council will conclude debate on it. It is a huge decision and it would help to hear more views.