The Bhutanese trail system is based on Bardo Thoedrol in which the mask of the King of purgatory (Shinje Laykhen) is placed over the judge’s seat while the mask of Dre Nagchung is placed on the right of Shingje Laykhen and Lha Karpo to the left. Many citizens find this intimidating.
The adversarial principle of Bhutanese legal system is enshrined in Bardo Thoedrol (The judgment of the Dead – Gurun Puran) discovered by great terton Karma Lingpa in the 14th century.
During the recently concluded ‘interface between media and judiciary workshop’ participants shared their concerns regarding the use of terrifying masks, the location of the judges’ seat, and other traditional setting in the court room is intimidating.
Answering this High Court Justice, Lungten Drubgyur told members of media that the system based on culture is very important. He said that the system has been practiced for a long time and is aimed at ensuring cultural preservation based on Buddhist principles.
“The mask has its own meaning in the courtrooms setting,” he said, adding that the judges are like a glory of the masks placed in the courtroom.
The codified laws are based on the fundamental teachings of Buddhism that include 10 pious acts (Lhachoe Gyewa Chu) and the sixteen virtuous acts (Michoe Tsangma Chudrug). Justice Lungten Drubgyur also said that the legal terminologies are extracted from the Buddhist canon and commentaries on the teaching of the Buddha.
The trial system has all the elements of fair trial incorporating the principles of natural justice, right to be represented by a legal counsel, uninterrupted hearing, informed charges, right to defence, production of evidence and witnesses and the delivery of a reasoned decision.
In the proceedings that unfold in the bardo drama, the accused is represented by his defense counsel Lha Karpo and the prosecutor by Dre Nagchung invoking the right to legal counsel. The judge as Shinje Laykhen is an umpire who decides on the issues that are submitted and an active agent who may order investigation.
The trail performance begins with production of the accused (a dead person by name of Nyalbum) before the King of Purgatory, whereby the principle of habeas corpus is upheld. The fair and public trial is demonstrated by the fact that the accused is heard in presence of all the Shingye Lakhen.
In this proceeding, the accused is alleged of the commission of various offences (sins) such as offence against person, property, cultural heritage, wild life, environment, fraud and defamation, among others. The Lord of Purgatory grants the opportunity to plead innocence or guilt.
Consequently, the accused pleads guilty invoking the doctrine of necessity and extenuating circumstances. He pleads that although he was aware of the commission of sins being bad, he was never aware of the consequences of such action after death.
The defense counsel, Lha Karpo, submits that the accused is ignorant stating that the accused has committed the sins in dullness of mind and without the knowledge of consequences. He pleads that the punishment may be mitigated under the mitigating circumstances of necessity and compassion.
In contrast, Dre Nagchung submits that the accused is guilty of mass destruction of wild life and environment. He submits that the accused has used slanderous words, injured and killed many innocent animals, assaulted the poor and innocent people, has condemned the saints and their religion, burnt down the shrines and temples, polluted the ocean and injured marine life.
He also submits that the accused has tormented his parents and demolished many stupas and monasteries.
The King of Purgatory, after having heard the submission of the parties and based on the facts and issues submitted before him by the parties, renders the judgment.
The presentation of facts and evidence by Shinje Laykhen guarantees the right of the accused not to be condemned unheard or without proof beyond reasonable doubts.
Bhutanese courts’ processing is similar to such setting in bardo thodren according to the Drangpons.