Bhutan does not seem quite ready for the separation of procedures for civil suits and criminal suits. Our existing Police Force and OAG infrastructures just do not have the built in capacities to do full legal justice to those affected by crimes and also fix accountability upon crime perpetrators.
On the other hand, the Courts in Bhutan have the traditional culture and experience of dispensing both civil and criminal justice as so warranted in the judicial process of a suit brought before them. Now the Courts are barred from acting on known crimes even when such crimes are apparent in the course of judicial process of a court case filed as civil suit. Ordinary citizens even though are the direct victims of crime cannot file criminal suit directly to the Court.
In this case of DPT vs Dasho Benji, the Court ordered the OAG to act upon what appears to be a criminal case of sedition. And Kuensel informs that OAG will be acting upon the directive of the Court. However, there was a case wherein a Dzongkhag Court had rejected a suit filed because it was of criminal nature and that the plaintiff was not the recognised authority to file criminal suit. However, the Court did not issue the judicial directive to OAG to process the case. And so far I am not aware whether Police or OAG are acting on their own to process that suit that was declared by a Court to be of criminal nature. Thus victims can be left unattended and perpetrators at large because of a blind spot in the Judiciary procedural system.
In such physical laguna or legal lacuna created by the separation of process for civil suit and criminal suit, the victims face isolation and injustice. The Police and OAG can choose whether to process demed criminal case or not. The interpretation of the Laws of the Land is upto the Royal Bhutan Police and the Office Of Attorney General not the Courts of Justice. It is in their power to decide whether the cases warrant judicial process under the Laws of the Land. This leeway in a way can be subjected to push and pull of influential bodies.
The Judiciary of Bhutan may have to develop a more transparent justice procedural and dispensing system. There has to be more ways than just Police and OAG to seek justice for deemed victims of crime and dispense justice upon deemed crime perpetrators.
Let me cite two examples of deficiency in infratructure capacity and short circuiting process of justice by avoiding judicial process.
1. The case of 19th July 2013 video about alleged DPT crime deed which the Thimphu Dzongkhag Court Bench V has now directed OAG to investigate and judicially process.
The Royal Bhutan Police Crime Branch or Legal Investigation Department and OAG should have acted upon from the day this incident took place if this was an act of criminal nature ( sedition). They failed because these Agencies do not possess the human resource, the necessary means and the legal and official culture to act upon or against such incidents/ events. When they are unable to respond to such a national case as sedition, how could they be prepared to respond to the plight of victims of crime who do not enjoy national or social status?
2. The ongoing tussle between OAG and ACC.
During DPT Government time, the ACC could take up prosecution in a Court of Law even if OAG refused to process cases forwarded by ACC. Now Supreme Court Ruling may prevent ACC from directly approaching the Court of Law.
For better or worse, in a small society where civilian institutions are dependent on political good wills and are also handicapped in many ways, maybe access to Court of law for deemed crime victims/ ACC cases should not be totally restricted to only Royal Bhutan Police and Office of Attorney General.
Let a Special Court decide through a Preliminary Hearing from lawyers of OAG and ACC or private litigants whether the ACC cases or the suits brought in by other Plaintiffs have an appearance of criminal nature. If so for ACC cases, OAG must be judicially directed by the Special Court to judicially process the case. And in case of suits brought about by aggrieved citizens , the Royal Bhutan Police can be judicially directed to process the case for submission to OAG for prosecution. That would broaden the passage to justice in Bhutan. It would also avoid the appearance of political decision by OAG in dropping an ACC case.
The path to justice cannot vary so as to cause confusion and parallel system but neither should it be so constricted in nature to cause violation of the right to justice.