A/HRC/42/39/Add.1
52.
During its visit, the Working Group called upon the Government to amend the Penal
Code to decriminalize consensual same-sex relations between adults. It was informed that
the National Assembly had passed a Penal Code amendment bill to remove sections 213 and
214 criminalizing homosexual acts. The bill would be sent to the National Council for review
and adoption.
6.
Lack of legal representation
53.
Since the Working Group’s previous visit, in 1996, steady progress has been made in
developing the legal profession in the country and the capacity of legal professionals to
represent criminal defendants. For instance, there was no law school and no lawyers at the
time of the 1996 visit, while at present there are over 200 private lawyers and approximately
120 lawyers in government service. Jigme Singye Wangchuck School of Law is training
future members of the legal profession, and lawyers who have gained law qualifications
abroad can receive further training at the Royal Institute of Management, which allows them
to start practising in Bhutan. Improving the provision of legal representation is also envisaged
in the Justice Sector Strategic Plan 2018–2023 and in the twelfth Five Year Plan, as a key
strategy for achieving National Key Result Area 16 (strengthening justice services and
institutions) through more effective delivery of legal services. The right to legal
representation is also enshrined in articles 7 (21) and 9 (6) of the Constitution and in other
key legislation, such as the Civil and Criminal Procedure Code, 2001, as amended in 2011,
the Jabmi Act, 2003, the Child Care and Protection Act, 2011, the Evidence Act, 2005, and
the Domestic Violence Prevention Act, 2013.
54.
However, further steps are urgently needed to ensure that the right to legal
representation is given effect in practice. According to the testimony received, a majority of
defendants in criminal matters did not have access to legal representation at crucial stages of
their proceedings: following arrest, during pretrial detention and during their trial and appeal.
Detainees were generally not aware of their right to a lawyer as they had not been
systematically informed of that right by the police and, in many cases, could not afford to
retain a private lawyer. In some cases, detainees chose to represent themselves, either based
on an incorrect understanding of the law that they would not be subject to a serious sentence
if convicted, or because they had committed the offence and did not think that legal
representation was important. Both attitudes indicate a general lack of understanding of the
importance of having legal counsel to place all important aspects of each case before the
court.
55.
Additionally, in some cases, juveniles have been tried for serious criminal offences
without legal counsel. The lack of legal representation in such circumstances amounts to a
grave violation of the right to a fair trial. According to international standards, a person who
has been detained is entitled to legal representation at any time during his or her detention,
including from the moment of apprehension, and effective representation must be provided
by the State if the detainee cannot afford to retain his or her own lawyer.
56.
While a legal aid fund has been established under the auspices of the Royal Court of
Justice, the fund is not operational and is largely unknown to legal practitioners and the
public. There appears to be a low level of awareness that a fund exists to provide free legal
representation in criminal matters and how to access it. There is also no clarity on the
mechanism for rendering legal aid, service providers, regulators and the scope of legal aid.
Guidelines are currently being developed by stakeholders to clarify how the legal aid fund
will be accessed and used, including a means and merit test for persons seeking such services.
However, there is not yet any agreement on how to determine whether a person is indigent
and therefore qualifies for free legal representation and how to ensure that the provision of
free legal assistance is sustainable. There are also no laws that deal specifically with the
provision of legal aid.
57.
Options to improve the provision of legal representation include pro bono services by
private lawyers and the provision of free legal advice from the growing number of law
students being trained at Jigme Singye Wangchuck School of Law. A further option would
be the ongoing use of the Jabmi system for the provision of basic legal services to assist in
ensuring that more criminal defendants have access to legal advice. Greater use of alternative
mechanisms of resolving disputes (such as mediation or resolution of minor criminal matters
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