tuesday, 11 october of 2016

Centuries of Buddhist Tradition Make Room for Bhutan’s First Law School

Under the gaze of the Buddhist god of wisdom, embodied in the form of a craggy hillside here, an American academic stood in front of 500 teenagers and posed a simple question: “What does a lawyer do?”

As the vice dean of Bhutan’s first law school, the American, Michael Peil, has been doing a lot of explaining lately. Draped in the country’s national dress, Mr. Peil and a Bhutanese colleague have spent the better part of six weeks traversing this Buddhist kingdom armed with fliers and a PowerPoint presentation.

For many students here in this western village, it was the first they had heard of plans to open the Jigme Singye Wangchuck School of Law, which will admit its inaugural class of about 25 students next spring for instruction at a temporary campus in Thimphu, the capital. A permanent campus is being built in Paro, to the west.

After each recruiting session, students too shy to voice their concerns aloud have whispered dozens of questions in Mr. Peil’s ear.

Will the admissions process discriminate against the poor? What does “justice delayed is justice denied” mean? And most urgently, can students with tattoos apply?

“Yes. Yes, you can,” he said, chuckling.

The night before, Mr. Peil had mulled a different set of issues.

As Bhutan’s first democratic generation comes of age, there is the challenge of defining law in a nation that has been governed for much of its history in semi-theocracy and by monarchs. And there is the difficulty of designing a curriculum that strikes a balance between educating students in handling disputes in a formal court system and through a village elder — a long-held custom stemming from a belief that justice based on conciliation maintains social harmony.

In a culture where the adversarial nature of Western legal practice is seen by some as opposed to Buddhism, which most here follow, Mr. Peil said the stakes were high for training lawyers who could defend Bhutanese values as the demands of modernity came rushing in.

“This is one of the few places and one of the last places on earth where you can watch a democracy, and a peaceful democracy, grow from scratch,” he said. “If we don’t do a good job, then that’s a threat to the Constitution, that’s a threat to democracy, that’s a threat to the rule of law.”

Squished between powerful China and India, Bhutan has long guarded its small population, now about 750,000, from the outside world. Before 1961, the country had no paved roads. Satellite television was introduced in 1999. And outsiders still must pay up to $250 a day to enter and stay in the country.

Bhutan is the last intact Himalayan kingdom — Sikkim was annexed by India in 1975, and Nepal’s monarchy was abolished after a civil war in 2008 — and Princess Sonam Dechan Wangchuck said historical sensitivity to outsiders was largely a reaction to safeguard the country’s sovereignty.

“The situation in the region has not always been stable,” said Princess Wangchuck, the law school’s honorary president. “We needed to preserve our culture and identity in order to survive.”

After King Jigme Singye Wangchuck, for whom the law school is named, declared in 2001 his intention to convert Bhutan into a constitutional monarchy, change has accelerated in part because of the need to build strong, independent institutions. As the thinking went, the advent of democracy could be another way to protect the country’s security. Experts from larger democracies would be brought in temporarily to help lay the foundation.

Bhutan now has a Constitution, adopted in 2008, that draws from the one passed in post-apartheid South Africa; a palatial Supreme Court built with Indian money; and, most recently, the law school, which draws pro bono support from a global law firm, White & Case, and advice from lawyers and firms all over the world.

Most of the country’s few lawyers received their degrees in India, which has not always translated well in Bhutan’s judiciary, where proceedings are usually conducted in Dzongkha, the national language. India also has a common-law-based legal system, but Bhutan pulls from different traditions, so once they return, lawyers have to take a yearlong conversion course.

The lack of variety in the types of law practiced and a shortage of legal resources in rural areas have also been concerns. Princess Wangchuck hopes the new school close those gaps.

But the ways of the old order still hold fast here.

Below the law school’s construction site, where workers secured columns of rebar along a cliff, Degang, 67, has worked as a local mediator on more than 200 cases as a village headman.

With trickier disputes, Mr. Degang, who goes by one name, consults the three-eyed deity Palden Lhamo, a guardian of law popularly depicted riding a mule sidesaddle through a sea of blood. For more straightforward cases, mostly domestic and land squabbles, he simply sits the parties down and gently guides them to a point of agreement.

In disputes over money, for instance, the objective is never for one party to leave more empowered than the other, but to strike a compromise between lender and debtor.

“Sometimes the lender tries everything to get back the total amount of money by snatching the debtor’s belongings and even taking his animals,” Mr. Degang said. “But we share the Buddhist belief in karma with him to negotiate the amount and to change his mind.”

Like many Bhutanese, Mr. Degang believes democracy is messier than monarchy. When the king was in power, he said, politicians did less posturing, and more promises were kept. With a formal court system, and clear winners and losers, Mr. Degang wonders if the ways of his generation will fade away.

Stephan Sonnenberg, a former Harvard lecturer who was hired to help design the law school’s curriculum, said this hesitancy to embrace legal institutions, which some Bhutanese think encourage crime, had shaped much of his work over the last year.

“The vast majority of disputes in Bhutan still are resolved according to traditional dispute resolution practices,” he said. “And so to train lawyers as though the only way of resolving disputes is through the formal court system would seem naïve at best and misguided at worst.”

Borrowing from the country’s emphasis on community vitality, a law clinic that might be called “Human Rights” in the West has been adapted in the school’s curriculum as “Human Dignity.” The problem with a rights label, Mr. Sonnenberg said, is that it often designates one person as a victim and the other as a perpetrator.

“In small communities, that can be really hard to undo,” he said. “Using a dignity framework instead allows you oftentimes to accomplish the same ends, but it’s framed in terms of, ‘As a community we have an obligation to rehabilitate those whose dignity has been violated.’”

In Haa, before one of the recruiting sessions, Karma Loday, 18, and his classmates were trying out the definition of law for themselves. Unlike older generations, Mr. Loday thought it was less about punishment and more about guidance.

Maybe it was akin to the sacred bond between a mother and her child, he suggested. Or a force that reveals what is good and bad in a nation. And it could even be found in all things.

“Everything is governed by law if we look very carefully,” he said. “The sun that shines, because it’s always shined. The plant that grows from the ground. What we feel.”

Asked if these ideas could be chalked up to youthful idealism, Mr. Peil, the school’s vice dean, said he did not think so. The country’s recent push to frame law as something that can complement, rather than compromise, traditional notions of justice may have made inroads with this youngest generation, said Mr. Peil, who was recruited himself, in part, because of his background in running international law programs.

“They were taking a very all-encompassing view of what the word ‘law’ means,” Mr. Peil said. “What these guys just told us is formalism doesn’t mean anything, that even if a law appears out of the mists of time and nobody knows where it came from, it’s still a law.”

In an American legal classroom, where the definition of law has crystallized under a common law system inherited from the British, these answers would not hold up, Mr. Peil added.

In Bhutan, he said, the law includes not just the words of a judge or a legislature, but also unwritten rules of conduct passed down through centuries of Buddhist tradition uncorrupted by colonialism or violent upheaval. If that means Bhutanese have a binding obligation to respect the environment, to honor familial duties and to negotiate disputes through community justice, these are values the country’s first homegrown lawyers will be trained to defend, Mr. Peil said.

“We’re not trying to marry Western liberal democracy to Bhutanese culture,” he said. “We’re trying to come up with a Bhutanese solution.”

Sher Bahadur Ghalley, 20, a prospective applicant, was confident his generation would figure it out.

“Law is like light,” he said. “If there is no light, we don’t see.”

(Published by The New York Times - October 8, 2016)

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