Justice: What does that mean to you?

– For those of you who think that the District Court, High Court, and the Supreme Court Judgment should be one and the same

Be it a civil servant, a politician, a shopkeeper, or a farmer, you will always ask me this: “why does Trial Court (District Court), or Appellate Court (High Court/Supreme Court) give different judgement in a given single case? You are saying me that the High Court and the Supreme Court judge should pronounce the same judgment as passed by the District Court judge. This really is impulsive, or rather, I would say an “intrusive thought.”

I have never tried to defend the system or whatsoever, but tried to convince you sensibly. What you are saying is completely from the laymen perspective, and perhaps, I might have asked the same question if I were not a lawyer. In this article too, I do not really intend to defend “what it is” but try to explain “why it is.”

Two concepts—

At the outset, let me introduce these two fundamental concepts — overrule and uphold — as it stands in the legal dictionary. Overrule means “to set aside the rule of a lower court” and uphold is “when a lower court’s decision was confirmed or supported.” These two concepts will tell you a big thing — you will either “set aside” or “confirmed” the lower court’s decision; and this exists in the judicial decision making process. Should judgment be the same, these two words deserves “deletion” from the dictionary.

Hierarchy of Courts—

As you know, Bhutan has four hierarchy of courts – Dungkhag Court, Dzongkhag Court, High Court, and the Supreme Court. If the judgement of the appellate courts is to be same as the lower courts, why do State lavish its resources for Dzongkhag Court, High Court and Supreme Court? Everywhere in the world, this hierarchy of court system is well established. I think, this issue need no further explanation.

Judges are humans—

For your better understanding, I will tell you that judges are all humans, they have likes and dislikes, and they do not possess supernatural power to predict things. So, the fundamental facts, and the sad thing, is that we human make mistakes. This is to be appreciated by all of us. When I say this, I am not arguing that judges make mistakes through his or her guided conscious; it is only perceived to be a mistake in the eye of some individuals which cannot be rub out completely.

Similarly, we humans are completely different from each other. I have a big nose, small eyes, flat ears, and you got small nose, big eyes, and round ears. Sadly, our taste, mind and ideology differs in each and every aspects of our life. Some are liberal and some are conservative, there exists left and right arms, and United State have Democrat and Republic. Therefore, it is logically wrong to expect the judges to decide the same way as you and I think. In another day, you might ask me this terrifying question: “why don’t judges wear the same cloths?” That would be funny, really. This take years to understand, however.

Then why law?

If judges decide of their own ideological principles and values, then why law? — this is yet another impulsive question. Law guide judges, and law does not decide of its own. If you think law decide of its own, then why is judiciary entrusted to interpret the law? Does law really need to interpret if law speaks for itself? What is the purpose of appointing judges? Law is very abstract and does not say a word of itself. We need to interpret the intention of the Parliament, see the historical perspectives, study the social context, examine the economic argument, and so and so forth. Law does not spell out these components. A single word in the law books would mean different things to different Judge. However, judges do an ethical analysis depending on the facts and circumstances of a case. Law does not tell what judges should do, it only guide to decide a case.

Consider a murder case for instance. The Penal Code of Bhutan graded the offense of murder to be a felony of first degree. Imprisonment for first degree felony ranges from 15 years to life imprisonment. As you could see, the 2004 Penal Code provides luxury of power for a judge to provide criminal imprisonment such degree felony. Supposing that there is a murder trial in a Court of first instance, and I know you would want a Judge to sentence the accused to life. But a friend of accused would want a Judge to acquit or convict for a minimum sentence as possible. There is a dilemma here: a legality v. mercy. Judge as a human being will definitely like to show certain degree of mercy, and on the other hand, he as a Judge will have to impose penalty as provided in the book of law. What can a Judge do here? Convict for life? Or acquit or impose a minimum sentence to make the family of an accused happy? Any conviction or acquittal depend on situation to situation. Just because it is a case of a death of a person does not impose an obligation for a judge to convict for life. A murder with a plan, preparation, and criminal intent to kill a person would be totally different from death due to motor vehicle accident or self defence. You got to know the facts clearly before applying the law. So, you see, law does not decide of its own, neither does it impose obligation for a judge, but guide them in a justice delivery process.

You also got to know this fact: Lord Denning, the most celebrated English judge of the 20th Century did not follow the rules ever in his judging career. Instead, he took forward the common law system. Why was that so? I will explain this in line with some jurisprudential theories. There are many schools of jurisprudence; each school having their own definition and interpretation of law. For instance, Oliver Wendell Holmes, Jr., an advocate for school of Legal Realism said “the life of the law has not been logic; but it has been experience.” This suggests that cases are to be decided based on the experience, and not logic. In contrast, legal positivism holds that if the law is enacted by the government, then it should be followed even if the law isn’t considered to be fair or just. Some judges may be a disciple of Realism, and some may follow the Positivism. It depends upon each individual. We cannot coerce them to be the disciple of same guru.

This is interesting, really. Suppose, in Mahayana Buddhism, we have several sects, Nyingma and Kagyue being widely practicing Buddhism in Bhutan. They are considered to be different, but each following the same Buddha Dharma of enlightenment. We cannot coerce Nyingma Lama to follow the Kagyue and vice versa, and that would be devastating on our part to do so. Similarly, judges are all different but follow the pursuit of justice.

2+2 = 4, and Judges should give the answer that way—

Again, you give me this comical analogy: 2+2=4 and that judges should interpret the law this way. Let me tell you that Math and Law are two complete different subjects. If I ask you “what is the answer for 2+2?, you will say it’s 4”. Where is the conflict here? You know the answer, and I know it either. If things are not conflicting to each other, and we find the answer within it, there is no point people argue each other and going to the court of law. Of course, courts often receive such obvious cases.

Court is not a place where you and I seek an answer for 2+2, but a place where more complicated issues are being resolved. What you and I hear are only controversial cases which requires volumes of judicial thoughts and readings. Sometimes, law books are complete silent on a particular issue, but you as a judge are compelled to make decision. You will understand more from illustration I just provided below:

Illustration – why different judgment—

For you to appreciate why judges give diverse opinion, I will give you a scenario from the Book “The Idea of Justice” by Amartya Sen. The scenario is about three children – Karma, Dorji, and Wangmo (names changed) — fighting over a single flute.

  • Karma claims that she is the only one of the three who knows how to play it (the others do not deny this), and that it would be quite unjust to deny the flute to the only one who can actually play it.
  • Dorji claims that he is the only one among the three who is so poor that he has no toys of his own at home.
  • Wangmo claims that she has been working diligently for many months to make the flute with her own labour (the others confirm this).

Imagine that you are sitting in a decorated Courtroom, and you will make a decision just in two minutes. What would be your decision? Who is your favorite? Who has convinced you more? Which law will you apply? I know you will decide for one, and deny for two. How sure  will you say that your decision is just and fair?

Supposing that your decision favours Wangmo because she has diligently made the flute, and I know many will decide this way. As I said, people’s ideology is different. Your decision will not be appreciated by those people who believe in economic egalitarian and utilitarian principles. Those of you who know basic economic will always argue about equal distribution of wealth and property, balancing between haves and haves not, and so and so forth. Therefore, if you apply economic principle here, I think you will give it to Dorji, because Dorji is the poor amongst three. Perhaps, Wangmo can make another flute for herself.

Utilitarianism is all about deriving maximum happiness and utility for maximum number of people. If you believe in utilitarianism, you will decide in favour of Karma, because the flute has more utility to her. What is the utility for others if they cannot play?

You see, how people are different, and this difference in ideology makes people different. It is our perception that make us different. And in such scenario, law is definitely silent.

Do right things—

If you want to appreciate justice system, do things right. For instance, in a court of law, there are always two people fighting each other. A person who won the case will say “I won the case because case favours me,” and a person who lost the case will say “I lost because the judge was not fair.” As a judge, they ultimately have to decide intelligently, but then, both the parties will never appreciate a judge. Whether you won the case or lost the case, judges are the subject of criticism.

And the last words—

When I write this, I neither intend to outrage you nor do I have any vested interest in whatsoever. But I write with good intent that people generate legitimate trust and confidence in the judicial system. Trust and confidence is important for any institutions. Mr. Barak Obama, the President of the United States said, “as people lose trust in institutions, governing becomes more difficult and tensions between nations become more quick to surface.” And the most important thing that we ought to understand is that at the end of the day, judges need to make decision. It might be on your favour, or it may not be as what you would like it to be. However, the judicial decisions are final and binding, and you will have to abide by it. There is nothing you and I can do, but to abide and respect the decision of the judiciary.


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