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Nangkha Nangdrik in the Land of the Thunder Dragon: Psychology, Religion and the Potential of Mediation in the Kingdom of Bhutan

Published online by Cambridge University Press:  16 April 2015

James Duffy*
Affiliation:
Queensland University of Technology

Abstract

This article will consider the role that Alternative Dispute Resolution (‘Dham Kha Chen Ki Khendum’ or ‘Nangkha Nangdrik’) currently plays in resolving legal conflict in Bhutan. With a Constitution that has committed to the pursuit of Gross National Happiness, non-adversarial dispute resolution processes that promote continuing relationships and goodwill assume greater importance. One difficulty for Bhutan is that alternative dispute resolution procedures such as mediation (Dhum Drik) are being referred to in enactments of the Bhutanese National Council and National Assembly (bicameral parliament), without a shared understanding as to the characteristics and functionality of these procedures. This article will focus particularly on the current practice of mediation in Bhutan and investigate whether particular models of mediation are more suited to the Bhutanese context, given the particularities of Bhutanese culture, the search for gross national Buddhism.

Type
Research Article
Copyright
Copyright © Faculty of Law, National University of Singapore 2012

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References

1 The Constitition of the Kingdom of Bhutan, Art. 9.

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9 According to the Bhutanese calendar, the Constitution came into force on the fifteenth day, of the fifth month, of the Male Earth Rat year.

10 The Constitution of the Kingdom of Bhutan, Art. 1(2).

11 Ibid., Art. 3(1).

12 Ibid., Art. 1(13).

13 Ibid., Art. 10(1).

14 Ibid., Art. 20(2).

15 Ibid., Art. 20(1).

16 The Constitution of Bhutan provides for these different levels of administration. Article 1(4) states that “The territory of Bhutan shall comprise twenty Dzongkhags with each Dzongkhag consisting of Gewogs and Thromdes. Alteration of areas and boundaries of any Dzongkhag or Gewog shall be done only with the consent of not less than three-fourths of the total number of members of Parliament.”

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24 Civil and Criminal Procedure Code of Bhutan 2001, s 150.

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53 It is important to note that the problem (content)/process dichotomy used to describe mediator orientations is artificial to a certain extent. Alexander acknowledges that the process/problem distinction “is not always readily recognisable and is sometimes blurred in practice. In reality problem interveners manage the procedure at various levels, and process interveners may indirectly advise on the problem.” See Alexander, supra note 48 at 103.

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64 UC Associates and Garuda Legal Services, supra note 39 at 119.

65 Civil and Criminal Procedure Code of Bhutan 2001, s. 150(8).

66 Thrimzhung Chhenmo DA 3-5.

67 The Marriage Act of Bhutan 1980, KHA 8-16 states that “If any scribe executes a written agreement or makes an oral settlement in contravention of the provisions laid down in this Marriage Act for realization of the prescribed amounts, then whatever amounts have been so realized shall have to be returned to the said person from whom such realizations were made, and the said person who had realized such an amount shall have to pay a fine to the Government equal in amount to the sum so realized. In contravention of which, the said person shall be punished with a term of imprisonment of six months; and the scribe executing the written agreement or making the oral settlement and witnesses thereto shall all be punished with a fine equal to half the amount imposed on the said person who had realized the amount and in addition shall have to undergo half the term of imprisonment imposed on the said person. But if the scribe of the written agreement and the person making the oral settlement is one and the same person, then the said scribe shall not be liable to the punishments imposed on separate counts, but shall be liable to one punishment only.”

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77 Ibid. at 10.

78 These objectives have been articulated by the Planning Commision, Royal Government of Bhutan and are described in further detail in “Bhutan 2020: A Vision for Peace, Prosperity and Happiness” Part 2, 12-13.

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120 Mancall, supra note 4 at 40.

121 (1) Life is suffering; (2) The cause of suffering is craving; (3) Suffering can be overcome and that true happiness and contentment are possible; (4) The key to overcoming suffering is following the middle way or the Eightfold Path.

122 Cox, Harvey et al., “World Religions and Conflict Resolution” (Paper produced for the Centre for Strategic and International Studies Program on Religion and Conflict Resolution, 31 August 1992) at 4 Google Scholar. Individual enlightenment is difficult to achieve for an adherent to Buddhism. It is an end destination achieved as a learning by-product of many different lives and reincarnations. Realistically, this means that self-enlightenment is a journey and that along the way an individual will experience incompatibilities of interests, needs and values with another. A Bhutanese Buddhist is likely to feel embarrassed and torn if they are involved in conflict. On the one hand, it makes sense to stand up for what you believe are your rights and entitlements. Conversely, this drive to protect entitlements and maximise fulfilment of individual needs and wants (often at the expense of another) speaks to material attachment and a level of aggression (if not assertiveness).

123 Whilst religion has often been perceived as a divisive instrument, its obverse contribution to successful conflict management and resolution is less emphasised. Johnston suggests that “under the right circumstances religious or spiritual factors can effectively contribute to the prevention, amelioration, or resolution of conflict.” The successful integration of Buddhist principles into any mediation – mediating through a Buddhist lens – requires a linking of Buddhist peacemaking precepts, to mediation theory and practice. Several authors have begun to explore this link. See for example Johnston, Douglas, “Religion and Conflict Resolution” (1996) 20 Fetcher F. World Aff. 53 Google Scholar; Kuttner, Ran, “From Adversity to Relationality: A Buddhist-Oriented Relational View of Integrative Negotiation and Mediation” (2010) 25(4) Ohio St. J. Disp. Resol. 931 Google Scholar.

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125 Mancall, supra note 4 at 40.

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