"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.

"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"

A little more hardworking media is desired.

The recent news of surrender of Secretaries by the cabinet has generated lot of debate in the Bhutanese society, both online and in the mainstream media, questioning the powers of the Cabinet to independence of the constitutional bodies in the country. While, many including most media seemed  to have assumed that the Secretaries were ripped of their post, the Cabinet decision did not explicitly in anyway indicated that the Secretaries were ripped of their post as they have used only the word “Surrender” and not any other terms
mentioned in the laws and by laws related to bureaucrats such as "Dismissed, suspend, terminated" etc.  Further, Cabinet clearly stated that they were surrendered to the RCSC for action. Thus, it seems to indicate that, the onus for action was actually given to RCSC for taking action against  the alleged persons.And the Commission has not shied away from it, it has already looked into the case and came up with a decision. 

The RCSC has accordingly looked at the alleged failures on the part of these officials to take actions. RCSC being now one of the Constitutional Bodies is ought to follow the procedures laid down by the Constitution itself as well as laws enacted thereunder. The Commission has no authority is take any decisions without fulfilling the provisions of the laws of the country. Therefore, after looking at the case and laws in place, the Commission indicated that, there are few steps which the cabinet might have missed in their first instance which are essential for the Commission to take further action.

It does in no way seem that, RCSC is trying to act contrary to orders of the Cabinet nor seem to show its independence, instead it seems to show that every institution is respecting the Rule of Law, the cabinet as well the commission. The Commission has not throw the ball in Cabinet's court as speculated by the Kuensel Editorial, rather Commission has asked the Cabinet to provide some information to help the commission to take the next decision. Cabinet has not taken any decision that would let these senior officers to leave the service nor has the RCSC taken decisions that undermines the decision of the cabinet. There can be no perfect step in every decision. That seems to have happened between the cabinet and the RCSC which is quite well indicated by the cabinet as they assured willingness to work as per the decision of the Commission. This, rules out any indication of any tussle or negative perceptions on the power and functions of both the cabinet and the commission.  

Unfortunately, our media and many Bhutanese seemed to indicate and assume that these senior officers were terminated from the service by the cabinet and now  RCSC is protecting them by re-instating them into the service which is wrong. The issue seems to get politicized. There seems to be lack of adequate effort from media in understanding the Rule of Law in the country.Media must remember that by constitution, any allegation must have prima facie and decisions must in accordance with the due process of law. 

Bhutan is guided by the Constitution and every citizen has  a right of equal protection under the law. Thus, Rule of Law is the most fundamental element for any democracy to succeed. It is therefore, paramount that, every institution must function within the framework of the law. There may be instances where laws are interpreted differently by different individuals or groups of people. For that reason, the Supreme Court is instituted as the final interpreter of the laws in the country. Therefore, any person, legal or natural person has the right to approach the Supreme Court or also have the option of reconciling the differences in the best interest of the nation.

Civil servants are governed by two laws, the Civil Service Act which is enacted by the Parliament under the Article 26 of the Constitution and Bhutan Civil Service Act Rules passed by the Commission under various provisions of the Act. The termination of civil servant is an administrative decision and hence, there are administrative steps to be followed first and if any civil servant is not satisfied by the administrative decision, he or she also has the right to seek the justice through the court of law. There are steps to initiate any disciplinary action against any civil servant. By Constitution, every person is innocent until proven guilty. 

The administrative decisions are supposed to be taken on basis of principle of natural justice.  The principle of Audi alteram partem (Opportunity to be heard) being most important. Bhutan Civil Service Rule is based on this principle.  This principle is not mere about of hearing the other party, it is also about due process of law. Due process of law is defined as “the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case” (Black Law Dictionary). It is therefore, nothing wrong with the Commission to ask the Cabinet to fulfill any procedure as Cabinet may not be aware of all the provisions of Civil Service Rules and also RCSC is the final interpreter of their Rules, so they can always ask parties to provide additional inputs.

However, the recent speculations and reports of media are not encouraging. Such reports could instil the sense among the general populations specially those ignorant of law that there is a chaos in the country between the politicians and the executive which is not the case. General population may think that, these institutions are working to oppose and undermine each other’s independency. Such reports, if continued over period of time, could set a bad precedence and wrong perception among the general population which could ultimately instil distrust  in the minds of the people about the institutions we have and above all, the special gift from the throne. We expect the media to be little more broad and liberal in such cases and handle with little more sensitively in the interest of the nation than grabbing onto creating headlines. The interest of the nation must override any individual benefits and interests. 

A little more hardworking media is desired.

The recent news of surrender of Secretaries by the cabinet has generated lot of debate in the Bhutanese society, both online and in the mainstream media, questioning the powers of the Cabinet to independence of the constitutional bodies in the country. While, many including most media seemed  to have assumed that the Secretaries were ripped of their post, the Cabinet decision did not explicitly in anyway indicated that the Secretaries were ripped of their post as they have used only the word “Surrender” and not any other terms

Rough Road to Education

I have written this article not to boast myself nor to offend anyone in the article.  That is why, I have withheld all the names. I wanted to speak my mind looking back how I grew in my life. 

Since my childhood days, I had a fascination to learn and be educated.  I wanted to be someone better than I was. But my road to education took much more than I would have imagined. I was caught in numerous obstacles one after another. But I never gave up what may come on my way.

Sudden and untimely death of my mother due to a complication of her delivery left my dreams shattered and faraway as my father left me with my grandpa in search of another woman. My youngest sibling from mother could also survive for only
few weeks after my demise of my mother.  The death of my mother and absence of my father was not much felt until my grandpa took his last breathe leaving alone as he loved me so much that he took care of me with so much love and care.

With the demise of grandpa, my life has never been same as before. I was left with no love and care. I had to live with my one of my aunts, my mother’s eldest sister. She had her own children and having difficult time. Though she never discriminated me, I always felt something different in my mind. I joined her family and became a cow herd. Going to school became almost impossible though that was the right time for me to get enrolled. It could have been two possible reasons. The school was too far away from my place, may  have been about 14 to 20km and there was no bordering facility. Second, she even could not send her own daughter to school due to difficulty at home.

Despite of this, my fate to education was not completely vanished as her husband was a former monk. So I was taught the Dzongkha Literature of reading while I looked after their cattle. Within not much time, I was able to read all the alphabets, even some words and sentences. Thus, a seed of my education was sown since then. I landed up being a cowherd with my aunt for about four to five years as could I remember till one day my father came.

I was so attached to my parents since my childhood days, both mother and father. When my father said that I he will take me with him, I was so delighted and happy. I went with him and entered the family of my step family. By then, my step had two, a daughter and son from her previous husband and one from my father. I was welcomed in their family.  Both her children were going to school. Daughter was elder than me and son, just a year younger to me. I was treated well and I feel that I was fortunate to have them as my step family.

When I saw that all the boys and girls of my age in that village were attending school, I would envy them and wished I could go to school too. Here, too I landed up not only looking after cattle of ours but also neighbors. It took another few years of my life to education, meaning I was getting late for any formal modern education.  I used to learn English Alphabets and numbers from my step-brother as we used to be very close like own brother since then. I could read them and knew how to write too. Some of neighbors saw what I used to write and would discuss themselves that, I could be an intelligent if I go to school. I don’t know what actual reason was for father not sending me to school. I remember, overhearing a few times, my step-mother telling my father, if I am admitted in school. He would tell that, as an orphan, school would not be a better but a monkhood could be one possible. But I was neither enrolled in monk nor in school. I was just herding cattle for years.

 One day, god has not forgotten my passion for education when a rich village influential person called me to his house and asked me if I am interested in going to school.  I would call him my god father. Without any further thinking, immediately I responded that I would be very much obliged, if I get an opportunity. Along with me, there was another boy who was age of step-brother. That man found a sponsorship for our education, another rich person from my village. We were taken to his place and told that we would be admitted into school. So my god father took two of us to the nearest school which was about five kilometres away for admission as the schools has already started their academic session. By then, in actual, I was running thirteen years and my friend twelve years. Fortunately, in our census, I was 10 years old and he was 9 years old. However, our fortune was not near. The school authorities informed us that, since that school is very renowned, there was no vacant seat for new students in pre-primary standard. We returned home hopeless and disheartened.

A few weeks later, in a village meeting, a proposal came that, government will start a new school in my village and even took our names those who were still quite young but missed school. I eagerly waited for the day to announce us to join the class. There were now new buildings, but we were told that for the time being, one of the village temples would be used as a classroom. I didn’t know why, but that school never materialized.

After few months, since that school did not come up, our god father suggested that we should try our admission in another school in the next gewog called Dotey Primary School. Our village headman took two of us to that school. The school was about eight to ten kilometer away. The day of fortune fell on us, when the headmaster welcomed us in this school. We were the first to study in that school from our village. I was so glad and happy that, finally I was able to study which was due for so long.

With our admission formalities completed, we are given school uniform and necessaries for our school. We didn’t have to buy any stationery as school was provided. Though, we got our admission, it was already end of August. This means, the academic session was almost coming to end in few more months. During those days, it used to a trimester and our classmates already completed two terms and two exams. They finished learning alphabets, so many words and even sentences and all nursery rhymes.  My previous effort to learn alphabets and numbers came in handy was I was able to read them before I got into school. But I was still short of other parts already completed. My friend knew more than me, because he actually attended school and dropped out.  The reason could be demise of his father and his mother leaving him with his aunts, like me. But unfortunately, his aunt and their family were quite cruel to him which further made his life more miserable.

We were fortunate that when the school decided to conduct a different exams for two of us. We tried our best and finally results came. We both got through to the next level, first standard. Our long distance travel of few months was finally paid.

We were called by our sponsor. They saw our results. I performed better than my friend. They said, if I wish to stay with them and study. I accepted much thought since they were rich, I would not have to work and also I would learn more since they were educated and had no children of their own. I proudly left my father and village. I was enrolled in Motithang Primary school, now called Jigme Namgyel Lower Secondary School. We had classes from pre-primary till fourth standard. I liked the school very much. But, when I actually reached there, I was not without household chores. I had to get up early in the morning, clean the house and go to school. After my school, I had to come back quickly and help their maids to cook meals and clean the house. I would study and complete my homeworks. Sometimes, they would allow me to watch movies with them. I liked the life but I was not free from mental stress as I was living with complete strangers, who were elite in the society and myself coming from one of the rustic villages. The difference was huge.

I remember, my father came to my place once since I left him. He told me to study, not to tell lies, not to steal and listen to them whatever they say. I wished, he could take me back home with him. But I never told him.

I remember I was in class-IE. I really used to work hard. The teachers used to like me a lot. I was able to do better than my class mates though we didn’t have the exams yet. I was taken even to higher schools to read books and papers as they found I would read better than they expected. Ofcourse, since my entering into school, I would pick up everything even from the roadside like thrown away news papers and try to read though I didn’t know what it meant. My life in that school abruptly came to end.

My host family accused me of stealing money from their house. I still remember that I could not think of even attempting to steal. I was so scared that I ran away from their house and slept in nearby house which was within the same campus but I was empty. I wished to go to my village. But I neither had idea to how to travel back nor I had any money. I went back to my host family. I told them I did not steal anything. They refused to believe me. They took me to the police station. Entering into the police station was the most fearful and terrible even in my life. The reason for such fear came from my childhood experience.  One time, when I was small with my father and other, I burnt down a heap of dried pine leaves which nearly burnt our house. I was told by a villager in that village that police would come and imprison me, torture me. Since then, whenever I saw any policeman, I used to get scared.

This time, my host family woman told me that, if I don’t confess to the crime, police would use chains and iron rod to smash my fingers till I confess. Out of fear and due to their threat, I remember, I confessed I stole their money. They asked me where I kept the money. Since, in actual sense, I did not steal, how will I answer where is the money. But I knew one grocery shop near my school. I told them that I used in that shop and finished the money. They took me there. I don’t remember what happened there. Then, they finally took me home and asked me to pack all my things which I brought from Paro. The took me in a car and mentally tortured me telling me I was a thief. I felt so bad because I never steal their money but I was helpless. Finally, I was handed over to my father. Since then, help from my sponsor ended completely.

After a few months, I was again taken back to my previous school. My old school welcomed me without any question. I continued my first standard. Within few weeks, I won the hearts of my teachers. Many teachers felt I stood better over rest in my class. I remember that, sometimes, my class teacher used to ask me to correct the workbook of my classmates whenever he was busy. It was 17^th December 1992; I went to receive my academic result. I stood first and also got few notebooks as prize. Since then, I have worked hard amidst all obstacles throughout my entire schooling and was able to complete my university graduation in 2007 and post-graduation in 2009 and now law degree halfway through.