Legal Aid Provisions in Bhutanese Laws

Legal Aid Provisions in Bhutanese Laws: Status, Prospects and Challenges in enforcement of laws

Justice Lungten Dubgyur High Court

Introduction

Constitution and Legal Provisions related to legal aid

Access to Justice and Legal Professionalism

Status, Prospect and Challenges in enforcing legal aid provisions

Provisions of The Constitution relating to legal aid •

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All persons shall have the right to life, liberty and security of person and shall not be deprived of such rights except in accordance with the due process of law. (Article 7, Sec.1) All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status. (Article 7, Sec.15) A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law. (Article 7, Sec.16) A person shall not be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Article 7, Sec.17) A person shall not be subjected to arbitrary arrest or detention. (Article 7, Sec.20) A person shall have the right to consult and be represented by a Bhutanese Jabmi of his or her choice. (Article 7, Sec.21) The State shall endeavour to provide justice through a fair, transparent and expeditious process. (Article 9, Sec.5) The State shall endeavour to provide legal aid to secure justice, which shall not be denied to any person by reason of economic or other disabilities. (Article 9, Sec.6) The Judiciary shall safeguard, uphold, and administer Justice fairly and independently without fear, favour, or undue delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access to Justice. (Article 21, Sec.1)

Provisions of laws relating to legal aid Jabmi Sec. 33 A person may: (a) plead or defend himself/herself in person; or (b) be represented by a Bhutanese Jabmi of his/her choosing and where this right is waived it shall be done competently and intelligently. (CCPC) Legal Aid Sec.34 Only an indigent accused shall have legal aid provided for one's defence where the interest of justice so requires. (CCPC) Defence Sec. 188 A defendant shall be entitled to a speedy trial. This right shall not limit the capacity of the accused to adequately prepare his/her defence. (CCPC) Open Trial Sec. 4 Every person is entitled to a fair and public trial by an independent and impartial Court in any proceeding…..(CCPC) Burden of proof in Criminal Case Sec. 96.2 Finding of guilt against one or more of the parties may only be given when the prosecution to the full satisfaction of the Court has established a proof beyond reasonable doubt.

Access to Justice and Structure of Defence

THE JABMI ACT OF THE KINGDOM OF BHUTAN, 2003.

PREAMBLE Justice being the primary source of peace in the Kingdom of Bhutan and reaffirming the noble goal in pursuit of Justice and recognising the importance of the assistance of a Jabmi to protect and establish rights in all stages of proceedings, we hereby, amend and consolidate the Law relating to Jabmis and law societies established in respect of the profession of legal practitioners of Bhutan and to provide for matters connected therewith:

Section 9: ….the Jabmi Tshogdey shall be to: (g) Organize legal aid to an indigent person (Pro Bono) in the prescribed manner;

Core Values of Bhutanese Court (Updated on NCSC court values)

Court Performance &Quality (Through ICTization) Leadership/Drivers Court Leadership & Management.

System Enablers -Judicial Reforms & case management policies (ICT) -Court Resources(Human, material & financial) -Court proceedings & Process

Seven Areas of Court room Excellence

Result -Litigants needs & satisfaction-efficient (excellent) judicial system -Affordable and accessible court services -Public Trust & Confidence

13 Values of Bhutanese Court

-Equality -Effective Protection -Fairness -Impartiality -Independence -Accountable -Competence -Integrity -Transparency -Accessibility -Timeliness -Truth (justice) -Certainty

Strategic IT Plan for the Judiciary, 2000

Access to justice Functionality

Efficiency of Judiciary

Effective, Efficient Accessible, fair, accountable, transparent, and timely administration of justice:Use of open, standard technologies

Quality of Justice

Realistic expectations

Status, Prospect and Challenges in enforcing legal aid provisions

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Bardo Thodrel (14th Century) Miranda warnings Waiver of Rights No compulsory Representation Individual Vs. Collective Rights (the constitutional guarantee of three generation rights) Jabmis and emerging professionalism Law Firms & Private Practice emergence Financial Resources (court’s budget) Legal Awareness and legal dissemination Introduction of Electronic Litigation (easier accessibility) Improved access and reduced litigation cost.

Status, Prospect and Challenges in enforcing legal aid provisions

• Training programs in the area of domestic criminal procedure and relevant laws in compliance with international human rights standard practices and compliance • Building competent public defender and policies for support and establishing public defender association (estb.of Bar association) • Framing of legal rules and manual related to legal aid particularly related to criminal defence but also incorporating issues related to legal aid for civil cases (matrimonial domestic violence cases, where children are involved) • Legal aid for family mediation services • Informative & Interactive criminal justice website (Bar association) • Establishment of ADR centre in Gewogs (Recruitment and training of professionals on legal aid services at the grass root level) • Informal and legal advise centre

TASHI DELEK