We often articulate proudly that the Bhutanese Judicial System is unique. Perhaps, one distinctiveness of the Judicial System is the provision regarding the Execution of Bah. In this post, I intend to claim that not all unique features are good for the cause of justice, with specific reference to the Execution of Bah.
Bah is not defined explicitly in any legal provisions although the practice is long-established. Bah and Nyja are two distinct terms that the parties specifically mention while executing any legal agreement. Today with wider understanding of international norms and legal procedures, few active judges often disseminate that the inclusion of Bah and Nyja in the agreement are unnecessary. Although the term Bah is extensively used throughout Bhutanese legal system, which remains undefined in any legal textbooks, however, the common perception and understanding is that Bah is executed in any amount of money by the Parties, and that the wining party to the case enjoy the right to claim the entire sum of money thus executed. This is nothing different from entering into the Casino where gamblers can risk their money against a common gambler.
Analyzing the legal framework, Section 91 of the Civil and Criminal Procedure Code of 2001 (CCPC) provides that:
In every proceeding, the court shall execute Bah, if the parties to the case so request.
This particular provision must have inserted in the CCPC upon due recognition and appreciating the traditional practice of Bah both outside and inside the courtroom premises. Even today, this provision is seen invoking in most judicial proceedings. For instance, in the current case of online libel suit between Druk Phunsum Tshogpa (DPT) and Dasho Paljor J. Dorji, the defendant’s lawyer repeatedly requested the court to execute Nu. 75 million as Bah amount. Similarly, in the case of Lhaden Pem Dorji v. Tobgyel Dorji and Wangchuck Dorji, one of the counsels requested the court to execute Bah of Nu. 75 million. However, in both the cases, no Bah is executed.
The key question is that what happens when Bah is executed or requested to be executed?
I personally think that the execution of huge amount of Bah simply impede access to justice for poor and marginalized people. It is unlikely for the litigants with light purse to seek remedy in fair justice system even if the case merit his/her favour. For instance, Bah is commonly executed in the scientific testing of DNA to resolve paternity disagreement. The terms of agreement of the Bah is such that if DNA test result is negative, the mother of a child will have to bear all expenses incurred, and if the result is positive, the father of a child to bear the cost. Given this scenario, if one of the parties do not have money, he/she is unlikely to execute Bah thereby assuming that he/she has lost the case. In the case of present online libel suit, the defendant’s counsel said that plaintiff’s refusal to execute Bah indicates that the defendant is guilty of the allegations. Such assumptions would definitely impede fair justice.
Bah also shorten the judicial process. For example, in the scientific DNA test I have stated just above, the DNA result itself will speak and decide the case; and I believe no further hearing is scheduled. No test is 100% foolproof, and we often hear Doctors negligent has caused the life of the patients. Human error and DNA mutation are two possible errors that immediately comes to my mind when asked whether DNA test is exclusive proof to decide the paternity of a child. Given the possibility of human error, further court hearing is essential, and this is possible if no Bah is executed.
Generally, Bah is very interesting concept. The Bhutanese perception of Bah and Gambling is very different. While the former is allowed, the latter is an offence. Section 393 of the Penal Code of Bhutan provides that:
A defendant shall be guilty of the offence of gambling, if the defendant stakes or wagers something of value upon the outcome of a contest of chance or a future contingent event not under the defendant’s control or influence upon an agreement or understanding that the defendant will receive something of value in the event of a certain outcome.
Thus, the Penal Code criminalizes the person who stakes or wagers something of value upon the outcome of a contest of chance or a future contingent event. The offence of gambling is petty misdemeanor which shall be sentenced to a minimum of one month and a maximum of less than one year.
I fail to investigate any distinctive feature between Bah and Gambling. Both are betting something of value (especially money) upon outcome of a contest of chance or a future contingent event. If gambling is an offence, and that Bah is as good as gambling, why does our judicial system still consider and execute Bah when request upon by the parties? This evidently tell us that our judicial system promote gambling inside the courtroom.
Given these facts, Section 91 of the CCPC needs deletion. On the other hand, relevant organization need to disseminate to the general public on the negative connotation of execution of Bah reasoning why Bah provision is not necessary to reflect in any legal agreements. Judges need to play active role in disseminating the litigants that the execution of Bah is not right in principle, and dismiss the submission so made by the litigants to execute the Bah. Likewise, practicing lawyers need to assist the court by refraining from requesting the court to execute the Bah. This will not only guarantee fair trial but also access to justice with quality.