Supreme Court

March 15, 2009: The palpable sense of urgency among some quarters of the Bhutanese people for the establishment of the Supreme Court seems to be missing in the government.
It’s been almost 10 months since the Constitution was adopted last year. But its protector and guardian, the Supreme Court, is still absent.
Will its absence not affect Bhutan’s young democracy?
Chief Justice Lyonpo Sonam Tobgye said there is the need for the Supreme Court but not immediately. He said the necessity of the Supreme Court will arise only when constitutional cases are filed and when there are appeals from the High Court.
No constitutional cases have been filed as of now.
“The absence of the Supreme Court has not affected my government in any way,” said Lyonchen Jigme Y. Thinley. “What is important is that we have a Supreme Court that can serve its intended purpose. The question of when is less important.”
Parliamentarians, however, insist on having the Supreme Court as soon as possible. They say the Court will act as a constitutional lighthouse and mitigate the growing animosity between the two houses.
Prime Minister Jigme Y. Thinley said the need for interpretation of laws by the Supreme Court has not risen as of now because there has been no constitutional crisis.
Speaker Jigme Tshultim reiterated what the prime minister said. “I agree we did have had some differences in opinion in the first session. But in the second session everything was clear. We came a long way,” he said.
The Chief Justice said Parliament is a deliberative body and the deliberations were going exactly as it was envisaged in the Constitution.
“To have a total harmony or (total) disagreement is not democracy,” he said.
Lyonchen Jigme Y. Thinley said differences of opinion between the two houses of parliament have risen and will continue to rise. For this reason parliament has its own inbuilt mechanisms and procedures to resolve such differences.
He added that the need for a positive but adversarial relationship between the two houses has to be accepted.
Lyonpo Sonam Tobgye said if disagreements persist then obviously the Supreme Court can come in. And matters requiring judicial reviews will also be handled by the Supreme Court.
However, in the absence of the Supreme Court judicial reviews cannot be conducted and precedents recorded.
The Chief Justice said the presence of the Supreme Court can neither aggregate nor mitigate the grievances of the two houses.
Observers have differing views.
They say the issue is not so much the establishment of the Supreme Court itself but the choice of the chief justice of Bhutan.
“It is important to ensure that the person remains unaligned to the existing three power bases - the monarchy, the ruling government and the opposition party,” said an observer.
He said the protracted delay can be because of the difficulty in agreeing on such a person.
Lyonpo Sonam Tobgye assured that the Supreme Court will be established in a few months’ time.