Inconsistency in procedure may create mistrust and weaken confidence in justice system

This article was published in Kuensel for Saturday Legal Column Series 

Procedural law is fundamental to the enforcement of legal rights. Without procedural laws legal rights will remain a paper tiger.  Access to justice is key in ensuring the right to equality before the law. Right to file a suit is fundamental to access to justice.

A recent news in Kuensel read: “there is a lack of uniformity in courts, as some courts in the country accepted cases without having to bring other party ‘in person’ while registering the case and conducting the miscellaneous hearing”. If the reports are true, the denial of filing a suit for failure to bring the other party by the aggrieved party will inevitably impede access to justice.

The Article 7(15) of the Constitution  gives the right to “equality before the law”  and Article 21(1) mandates the  judiciary to “safeguard, uphold, and administer justice fairly and independently without undue delay in accordance with the rule of law to inspire trust and confidence and to enhance access to Justice”. Sections 116, 117, 118 and 31.2 of Civil and Criminal Procedure Code (CCPC) provide the right to file a suit in good faith if there is a “concrete case or controversy” (legal standing—locus standi). S.32 empowers the court to determine whether there is a legal standing, and if there is, the court is required to register the case.

In the current practice, the courts must have taken such measures with best intentions in the interest of the justice of other party. However, CCPC does not mandate such duty on the petitioner. One of the immediate demerits of such decision is indefinite delay in ensuring justice to the plaintiff.

Contrary to views in the news, rights of the other party are well incorporated in CCPC itself. For example, S. 128 empowers the court to issue summon orders by way of services of process and S.129 requires that reasonable notice and opportunity are ensured to the other party before a court takes any decision. The other party gets 21 days to respond after receiving the summon order. Further, S.38 empowers courts to tender the summon order even to the family members of the other party or any other person living with the other party or in the same dwelling. S. 38.2 authorise the courts to make written proclamation in any media, including electronic. The courts also have the authority to order the police to produce the defaulting party before the court and invoke contempt of court if necessary.

The existence of such mechanisms will, on the one hand, discourage people with genuine cases from approaching the courts and, on the other hand, other parties may use it as a tool to refrain from getting sued by changing addresses. Further, such inconsistent and non-uniformity of procedures in different courts could result in “weakening the justice delivery system but also pose a threat to the rule of law” and people’s confidence in the judiciary in the long term”.

Therefore, courts must take cognizance of His Majesty’s address during the historic 112th National Day celebrations. Legal reform must be the first step to the path of development. Maintaining consistency and uniformity in procedure would help improve public trust and confidence in the judiciary, ensure fair and expeditious hearing, and prevent undue delay in the justice system.

Sonam Tshering Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.