The nomination of the first Chief Justice of the Supreme Court came through when His Majesty, on December 17, accepted the six-member royal commission’s nominee, 60-year-old former Chief Justice, Lyonpo Sonam Tobgye, who superannuated on November 15. Lyonpo Sonam Tobgye served the country for 38 years, 18 and a half years in the judiciary. He talks to Sonam Pelden about his new responsibilities and the future of the judiciary.
Q. How do you feel about being appointed the first Chief Justice of the Supreme Court of Bhutan? Did you have any capable candidates in mind?
A. I am greatly honoured by the confidence Their Majesties have bestowed upon me. I am also honoured by the royal commission’s confidence in me and the people’s good wishes. However, as the days pass, I feel the burden more and more. Nevertheless, I will try my best with prayers, devotion to the constitution, and as clear conscience as the witness. The task is going to be difficult, but I will neither fail nor falter.
No, I had no candidates in mind. When I left the judiciary, I closed my mind and never thought about it. And as a Buddhist, I didn’t want to have any attachment to the past, nor did I have any wish or desire for others.
Q. What are your immediate responsibilities?
A. It is the recommendation of the four justices of the Supreme Court. That’s going to be a superintend task. Of course, I will have to caution that I will not be deciding alone. I will be one of the members only. The myth of Chief Justice dictating and being very powerful is wrong. The concept of plurality of democracy is there, and it should be there. It must begin with the judiciary for we have to set examples. Any dictator dictating will be antithesis to democracy, and I am not a harbinger of that. I have been a person who builds a team. However, as the Chief Justice and the Chairman, I have some responsibilities.
Q. When would the National Judicial Commission be formed? How would it look like? What would be its function?
A. The moment His Majesty issues a warrant under his hand and seal and confers Dakyen to the Chief Justice, we will work fast without undue delay.
The constitution is very clear. There will be a four-member national judicial commission – senior most justice from the Supreme Court, the Attorney General, and the Chairman of the legislative committee. Chief Justices will be ex-officio. Now the missing link is the senior most justice of the Supreme Court, but I am sure we will be able to solve that problem.
Q. The constitution states that a Chief Justice of Bhutan shall be appointed by the Druk Gyalpo in consultation with the National Judicial Commission. We didn’t have any such commission. Could the six-member royal commission have served the purpose?
A. I think it was a very genius way of solving the constitutional problem, and His Majesty ingeniously devised this royal commission. It was an excellent idea for the members were of highly respectable and reputed credentials and the august body was of the constitutional status.
Therefore, we should not have a shred of doubt. There had to be a way of appointing a Chief Justice, and this was a great way of doing it.
Q. Since the Supreme Court is the custodian and final interpreter of the constitution, do you think that the appointment of the Chief Justice was timely, or was it late?
A. For me, it was timely. In retrospect, I see great wisdom of His Majesty by not appointing a Chief Justice and establishing a Supreme Court so far for it created a political space for discussions and flowering of democracy between the two houses and other organizations.
Political space is very necessary for maturing of democracy. Not appointing a Chief Justice last year or the year before was very good. But to delay it further would have perhaps aggravated the situation. Therefore, the time was absolutely correct.
Q. When would the Chief Justice of the High Court be appointed?
A. This will be done after the appointment of justices of the Supreme Court. First, I have to get a warrant of appointment, then establish the Supreme Court and immediately after that, establish the Chief Justice and justices of the High Court. Then, judicial council will be established followed by appointment of judges in the districts.
Q. Does it mean promotions for the judges of district courts?
They will be elevated to the High Courts, thereby creating vacancies, and those vacancies will have to be filled. Basically, there will be promotions from the Ramjams, ones who are already lawyers.
Q. The Supreme Court is still under construction. How would the Chief Justice and the Drangpoens function without a proper office in place?
A. I don’t think we have to look for and wait for the best time and the best situation. I think we will function from the High Court for the time being.
Nevertheless, the new buildings of the Supreme Court will not be too far away. By June or July, we should be able to function from there. At least the Chief Justice’s chamber will be ready by then.
Q. There is a shortage of Drangpoens and support staff in the courts today. How would you address this problem?
A. No. We may have some problem at the Supreme Court, but not at the High Court and the district courts. We have excellent lawyers, senior judges with good academic qualifications and experiences.
We have about 40 lawyers in the judiciary. We will not totally replace the old generation because we have to create some options for the people. Bhutan was never revolutionary. We have always interfaced and this wisdom must be carried forward by us. We have enough professionals.
Q. Would the functioning of the judiciary be any different with the establishment of the Supreme Court?
A. No. the establishment of the Supreme Court doesn’t mean departure from or abandonment of the past. We are here to continue and to improve on errors that we have made. We have a bench book, and with the guidelines from the bench book, we want the appeal to the Supreme Court to be very expeditious.
One of the negative aspects of the judiciary in the past was that the people had taken advantage of the appeal system either by delaying or harassing the opponent.
This problem should be and will be addressed by the Supreme Court of Bhutan. So, justice will not be a refuge of the scoundrels and process of manipulation. Supreme Court must work very hard on this. This is the appeal procedure.
Q. What are some of the downfalls, concerns or challenges you see with the courts and their functioning today? How would you reform them?
A. There are no downfalls because had there been any, I should have lost my job long since (laughs). Yes, we had some constraints.
We had judges being appointed from outside the judiciary. While they brought a positive impact by bringing new ideas and experiences, they also had some negative impacts. They took time to acquaint themselves with the law and the procedure. They had some inherited habits from the administration because administration and administration of justice are slightly different. We often had justices who didn’t get along. Because of this, we were not able to make reforms as fast as possible.
Generally, new judges coming from outside the judiciary take about three years to learn the job. To a great extent, most of my time was spent on building the team. Therefore, the constitution has rightly said that they must be jurists or from the system because the Supreme Court must work on collegium. Internal disagreement is good for inter-democracy but sometimes, it spills over the other way. Many chief justices have this problem, and I had a fair share of it.
The problems weren’t negative because there was a process of appeal to His Majesty but now the Supreme Court can’t afford to have people being appointed with backing and with their wishes. We have to think of justice system in the country. I am now constitutionally responsible to see that these don’t happen. It is my responsibility to see that the same mistake is not made. I have no excuse.
Q. As the Chief Justice of the High Court, you brought major reforms in the judicial system of the country. What would your biggest challenge be as the Chief Justice of the Supreme Court?
A. To say that I brought reforms is totally wrong. It was Their Majesties, my brother and sister justices and the system that have done the job. I was just a part of this.
In future, I can’t really say just now. Only thing I can say is that we have been given the historic responsibility and we must neither falter nor fail. Our conscious must be free. I want to leave after my tenure with free conscience as I had on the day I left on November 15.
I hope to succeed. I will try my best. None should fear me.
Note: Full texts reproduced from the Bhutan Oberver, Dec 28, 2009