Delving Into Bhutan’s Rule of Law*
More thoughts from Jay:
Being back in Seattle has given us a little bit of time and space to think about JSW and our experiences in Bhutan. For much of the time we were there, my perspective on Bhutan’s legal system was based on my experience at JSW, where many faculty do not actually have law degrees, and of those, very few have any experience practicing law. It was not easy to learn what the real-life practice of law was like for attorneys in court.
One of the few ways students get practical exposure is through clinics taught by faculty with legal experience, including our colleague Prof. Dema Lham, who has taught the popular Human Dignity Clinic for several years. Through Dema, I was able to build a relationship with the Bhutan National Law Institute (BNLI), the government agency whose mission is judicial and legal training, and is creating a Legal Aid Center (LAC) to offer access to justice for poor people.
For the past year, the LAC has worked to provide free defense counsel for limited numbers of indigent criminal defendants by recruiting volunteer attorneys from Bhutan’s limited bar association. The LAC wanted to host a series of trainings for these attorneys, and asked Dema, who in turn recruited me and our colleague David Tushaus, to work with the LAC.
We were pleased to lead this effort, though we both believed that this was long overdue: the right to court-appointed counsel for indigent criminal defendants was arguably established when the constitution first came into effect in 2008. The LAC, established only in the past year, has tried to recruit volunteer attorneys from the very small community of less than 200 lawyers, with maybe 100 active practitioners. It is clearly a stretch for the legal community to cover a need of perhaps 3000 indigent criminal defendants a year.
But taking on this task gave us a way to gather insight into the legal community and the judiciary that neither of us had expected. It was, to say the least, eye-opening.
We were initially tasked with separate trainings for BNLI/LAC staff, judges, and volunteer defense attorneys (both currently active and potential volunteers). We studied the existing legal frameworks of the constitution and relevant statutes, but also leveraged the weight of this BNLI-led training to interview various stakeholders in the criminal law system to investigate what was actually happening in legal practice on the ground.
We were fortunate to meet and talk with many principled, hard-working professionals in the system. We spoke to committed and intelligent judges, prosecutors, and private practitioners, as well as sources from inside the Royal Bhutan Police, the main law enforcement agency in the country.
The more people we spoke with, however, the more alarmed we became at the disconnect between the statutory and constitutional framework of the criminal justice system, and the actual practice of criminal law and criminal trials. We learned of a system that on its face should provide full access to due process and justice for all, but largely failed to do so. Though the system did function well in some cases, it worked very poorly – or not at all - in too many situations.
We found that of some 3500 reported criminal cases in 2022, the vast majority of those defendants were indigent and unrepresented (well over 95 % in the opinion of one prosecutor). Of those cases, only about 1000 were handled by the Office of the Attorney General, the agency that provides the prosecutors for every Dzongkhag (state). The balance, perhaps as many as 2000 cases nation-wide, involve “petty misdemeanors”, which carry sentences of 30 days to a year. These cases go through the system with non-lawyer members of the police presenting the case to judges in court, with no prosecutorial gatekeeper to consider the legitimacy of the charge or the investigation, and no defense attorney to challenge it. In other words, nearly 2/3 of the criminal cases in the country have no lawyers involved either for the prosecution or the defense to advocate in a situation where people are potentially going to jail.
Even more alarming, we came to believe that there is a high level of police abuse in the country, particularly when it comes to obtaining confessions -- especially those of juvenile defendants.
These discoveries presented a complicated political challenge for how to conduct the BNLI/LAC training. We did not want to be the foreigners telling Bhutanese professionals what is wrong with their system, especially when our own has many of the same issues. We wanted to guide their own discovery and discussions of the limits of the rule of law in their relatively young democracy, and help them design the way forward.
So with a clear view of the privilege we had been given, while understanding the limits of what we might accomplish, Dori, David and I headed to Punakha for two different two-day trainings: the first for the BNLI and LAC staff, and the second for a collection of attorneys from the bar association. The judges’ training was dropped for administrative reasons, but there were two judges, or dashos, attending: an experienced judge currently appointed to head the BNLI, and another senior dasho who has been a judge since 1987, well before the constitution and the current legal system was formed, including recently serving 10 years as a justice on the Supreme Court.
An informal moment with the former Supreme Court dasho
The trainings that we had felt nervous about turned out to be a marvel of collaboration and learning, all the way around. The BNLI and LAC staff were amazing in their openness about how to approach their work. The two dashos provided wonderful insight into not just what the system has been but a clear-eyed intention about where it needs to go. Dori provided expert organizational guidance, and a frequent voice of reason apart from the two of us attorneys. We were also supported by Dema Lham and her Human Dignity Clinic students, who attended and acted as “clients” for group work with the attorneys. Everyone was receptive to our interactive and participatory structure, where we all learned from each other.
I can’t say enough about what a pleasure it was to have open and profound conversations with these two groups of bright and committed Bhutanese professionals. Focusing on the need for vigilance for human rights and due process in any legal system, we looked not just at Bhutan but also the many pockets of deep injustice throughout the United States. Hoping to make this point, we included the TED talk by Bryan Stephenson, as well as other examples of the failures in the US system, to make clear that we were not trying to hold the US up as a model, but rather that we are committed to justice and fairness in any system.
We came away from an intense but wonderful four days feeling like we had succeeded beyond our hopes, and that we gained the trust of all the participants. We were particularly happy to have built a strong relationship with the BNLI/LAC, and the two dashos in attendance. We planted the seed that to have the rule of law, all people must have legal representation, and no country can afford to assume the good will and professional conduct of the police, prosecutors, and judges alone.
The Bhutanese attorneys in attendance seemed to be relieved to have a forum to talk about the faults and failures in the existing system, with many of the BNLI folks present to hear about the experiences some lawyers have had with the judiciary. Many, but by no means all, of the people at these trainings already knew about most of these problems, but I think it was a gift for all of them to be able to share with each other, and to learn that they are not isolated in facing these challenges.
Some of the inspiration for this training came from the course I was teaching at the same time on Advanced Criminal Law. Many of my students were doing research about the same issues we confronted along with the BNLI and the defense attorneys.
Two students in particular studied the statutory and constitutional rights of juveniles in Bhutan, and committed to taking that knowledge into selected high schools. Their “know your rights” presentation to a group of student leaders at a private high school in Shaba, outside of Paro, was inspiring, but yielded an unexpected result.
My students were deep into their presentation and stopped to ask for questions or comments. After a few students spoke up, a quiet boy stood up to speak. He told us that he had never before shared his experience with anyone at the school, including his classmates, but that as he listened to our presentation, he was overwhelmed with the need to tell a story from his own experience.
Some years earlier, he had been involved in a gang fight and had stabbed another boy who had stabbed him. A group of these kids were arrested by the Royal Bhutan Police. None of them were informed of their statutory right to silence, nor their right to have a parent present, nor their right to be released from detention pending investigation, nor their right to be separated from adult detainees. The other boys were eventually released to their parents because they came from well-off families.
This boy was kept for 12 days. Everyday he was beaten, verbally abused, and even water-boarded, to get him to confess and implicate his friends. He called it torture. He knew the name for waterboarding.
His voice broke and tears flowed as he said these things, telling this story that none of his friends at school had ever heard before. It was easier to tell this story to us, strangers he had never met. And not one of those students doubted that he spoke the truth. They comforted him, and I assured him he was a hero.
Hearing stories like this student's made me feel even more committed to doing what I can to help build Bhutan's legal system. The next hurdle, of course, is how to move forward. I hope to continue to consult in some manner with the LAC and BNLI, and the private attorneys who they are working with. Now back in Seattle, I am asked repeatedly whether we are going to return to Bhutan, and this is the work I hope to go back to do.
*The title is a bit of a joke, for all of the student papers we read that used the word "delve" about a zillion times - it is apparently one of the preferred words and phrases in the national curriculum that all students get trained in and are required to use as they go through school. When they get to university they can't shake the habit of "endeavoring" to "delve" into the "profound" and "multi-faceted" that "resonate" and "transcend"....
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