Of appeal and of differing judgment – A misconception

This Article was published in Kuensel for Saturday Legal Column Series 

There is a misconception among the general public in Bhutan on the differing decisions when a case is appealed to higher courts.  While some describe as two laws, others see it as court favouring the other. It is understandable that the losing party in either court will generally make such accusations, because they think they should have won the case. Therefore, it may be more appropriate to understand the appeal system and why the judgments differ from one court to another.

Appeal is defined as “apply to a higher court for a reversal of the decision of a lower court”. An appeal system is instituted to rectify the errors made by the lower court and Bhutan follows the same principle. It is often understood that right to file a suit is an inherent right while right to appeal is a statutory right. There must be a law to determine the extent of appeal. In case of Bhutan, Section 109.1 of Civil and Criminal Procedure Code (CCPC) provides the right to appeal against a judgment in any case. Further, Section 23, 109.3 and 110 provides grounds for appeal and Section 111 provides the various remedies under the appeal system in Bhutan.  Unlike many other legal systems, the restriction on appeal system in Bhutan is very minimal while the right to appeal is almost certain in every case particularly from Drungkhag or Dzongkhag Courts to the High Court.

Therefore, the appeal system provides checks and balances in the justice system.

First, the lower courts are manned by a single judge who often possess lower academic qualification, have lesser experience, yet with far more number of cases.

Second, all judges are human beings and not free from making mistakes. A scholar said, “All men are fallible, and judges are human beings who may commit a mistake and a judge who has not committed an error is yet to be born”.

Third, the higher courts have judges who are far more experienced, lesser number of cases and presided by more than one judge.

For example, in Bhutan, Drungkhag or Dzongkhag courts have single judge to preside over a case while in the High Court of Bhutan, at least two justices for every case and in the Supreme Court, all five justices sit in the court to hear each case. Therefore, ability to review and spot errors in lower court decisions and far less likely to make error in their own judgments.

In Bhutan, Section 111 of CCPC provides that the appellate courts may either reverse the lower court decision in full or partial or rectify the errors and remand for new trial in the lower court again.

Therefore, differing in decisions of the lower and higher courts is a healthy sign within the justice system as it signifies that there is good checks and balances within the system. If all decisions are uniform, it indicates that the judiciary may be protecting themselves and the sole objective and purpose of appeal itself is defeated.

However, appeal system is not without demerits. For example, the unrestricted right to appeal in Bhutan could encourage some litigants to buy time or generate more income by some lawyers or harass the other party in the name of right to appeal. Laws are also susceptible to numerous interpretations within the legal framework and sometimes, higher courts may also make mistakes in interpretation.