"Precedent"

The word 'Precedence" comes from the word "Precedent" which is often used by the courts called Judicial Precedent. However, at times, even in a small country like Bhutan where judiciary is still in the infant stage and so is democracy, the use of precedence seemed to be hijacking even some of the important decisions of the government and politicians.

Recently, RCSC used the term "Authorized Absence"
when the Cabinet Surrendered three Government Secretaries to the RCSC and when RCSC felt that cabinet did not complete the due process of law in surrendering the secretaries. RCSC used the authorized absence to secretaries which means they would not be in office till the investigation is completed but they would still receive their entitlements as usual. The rationale behind this was to prevent the possible interference by those secretaries while carrying out the investigation.
      Few weeks later, Office of the Attorney General, charged the Foreign Minister for alleged misuse of authority in the Lhakhang Karpo case while he was then Dzongdag. The Hon'ble Prime Minister borrowed the term "Authorized Absence" and send the Foreign Minister on Authorized Absence till the prosecution completes or the case is disposed citing that it was done to prevent possible conflict of interest as OAG is prosecuting the case.
    Few days after that, Anti-Corruption Commission issued a notice to the office of the Prime Minister and Haa Dzongkhag Administration to suspend the officials involved in the alleged corruption. Subsequently, Haa Dzongkhag suspended the officers where by they would now receive only 50% of the entitlements while FM continues to be on authorized absence with full entitlements.

   This has raised the eye brows of the public, outraged some and spark a huge debate both on mainstream media and social media. The PM's office argued that they are following the precedent set by RCSC, RCSC defended and argued that authorized absence was used because  the investigation of these officials are still going on unlike the Lhakhang Karpo case where investigation has already been completed. Whatever said and done, in the name of precedent, the people involved in the same crime are now seemed to have treated differently.

Thus, it brings the us to understand what really is "Precedent".  The Oxford Dictionary defines Precedent as "an earlier event or action that is regarded as an example or guide to be considered. in subsequent similar circumstance". Black's Law Dictionary defines as "A decided case that furnishes a basis for determining later cases involving similar facts or issues"  Thus, in short, precedent may be defined as judicial decision that is binding on the other equal or lower courts in the same jurisdiction on the point of law in the subsequent cases where the facts are sufficiently similar. 

The principle of precedent is supposed to be derived from doctrine of Stare Decisis which is based on the legal maxim "Stare decisis et non quieta movere" which means to stand by things decided and not to disturb settled point.Therefore, for a decision to be called precedent, the previous decision must have been settled law or principle. Second, the facts or the circumstance must be sufficiently similar to follow as precedent. A law or principle to be called settled law or principle, a case must have been decided by the court and that is why precedent is often described as the law made by the judges when there are no laws on such matters enacted by the legislature, in modern terms used as judicial activism. Therefore, it may be important to determine whether these  basic criteria for these doctrines are fulfilled or not. 

Thus, in cases that are criminal in nature, it may be of a grave concern for the  general public for the executives or politicians to come up with such principles and terms which are not explicitly given in any laws enacted by the parliament. With such emergence, people's faith in government vanishes and role of judiciary undermined. Public feel that there are two parallel laws operating on the same crime but for different people, the lower ranks and higher ranks. 

Further, precedent evolved and used mainly in common law system as they did not have written constitution and settling of law was found more suitable through the doctrine of precedent in United Kingdom. Other legal systems including United States of America and India has also adopted this principle in many cases where there was absence of laws governing such cases. However, with more laws enacted, many precedents got repealed. 

Article 7(15) of the Constitution states that "All persons are equal before the law and are entitled to protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status". Thus, everyone should be treated equally before the law under the similar circumstances, Eg. a murder by Minister or Police officer or layman, they are to be treated equally before law because all of them have murdered a person.

In view of this, the Constitution also provides us the remedies to challenge any law or a decision of any entity including the laws enacted by the Parliament under Article 1(11) of Constitution where one can petition the Supreme Court for their interpretation and Supreme Court or High Court has vested with power to even issue various writs under the Article 21(10) of the Constitution.

It is therefore, now in the hands of the aggrieved parties to decide whether such precedents are valid or not. It can only be tested through the Supreme Court as it involves the question of law and validity of such decisions or laws.