ACC vs. Jigme Tshultim & Minjur Dorji

Jigme Tshultim and Minjur Dorji

The following is a reproduction (in parts) of the judgement passed by the High Court, Royal Court of Justice on 30th November, 2012, on the high profile case of ACC Vs. two serving ministers.

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Petition seeking a declaration to quash the Anti-Corruption Commission’s Suspension Order against the Speaker of the National Assembly and the Minister for Home & Cultural Affairs issued in connection with criminal charge on Gyelpozhing Land Case.

Petitioner: Office of the Attorney General (OAG) – Represented by Counsels Tashi Delek, Karma Rinzin, Namgay Dorji and Sangay

Versus

Respondent: The Anti-Corruption Commission (ACC) – Represented by Counsels Thinley Wangdi, Dorji Thinlay and Sherab Tharchen

 

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… Thus, this Court as reasoned in this Order, rules that the Suspension Order issued against the Minister and the Speaker was not within the ambit of Anti-Corruption Act, 2011 and the aforementioned provisions of the laws and the Constitution.

7. COURT ORDER:

7.1. The Court granted full opportunity to the parties to make their submissions by way of written depositions and the oral arguments. All their submissions were given most careful consideration.

7.2. The Court after considering the merits of the application in particular reference to the Petitioner seeking declaratory order for cancelling the suspension order or any such other orders or directions as this Hon‘ble Court deems fit and proper in the interest of justice; and that the Respondent‘s counter submission with a prayer for an order to sustain the suspension orders issued by the Commission was heard exhaustively in an open public hearing. Each party was represented by their learned counsels.

7.3. This Court applauds the Anti-Corruption Commission’s drive and its determined “effort to prevent, detect, punish and root out corruption,” at all levels with the keen acknowledgement and the necessity of upholding “the fundamental principles of due process of law in a criminal proceeding and in a civil or administrative proceeding,”. Similarly, this Court also draws its mandated strength to fulfill the constitutional duties by way of judicial review to test the soundness of administrative decision as in the current controversy – to give meaning and life to our laws – all intended to serve the nation, ensure justice, peace and to secure – in our Majesty the King’s wisdom to “sustain vibrant and exemplary democracy”.

7.4. As we march forward in fulfilling our Institutional roles and responsibilities, it is natural that – the motion to test the soundness of any administrative decision or action will have to be tested based on the profound principles of truth, legality, and justice.

7.5. THEREFORE, the Court constituted as above, after extensive deliberation on facts and issues and the application of laws and commonly accepted legal principles and the Constitution, do hereby, without prejudice, unanimously rules that:

7.5.1. the application of sections 312 and 313 of the National Assembly Act, 2008 are the procedural requirement to disqualify a member and the duty of the Speaker to relieve such member after having voted with two-thirds majority for not complying with other provisions of the said Act and not when a Member of Parliament is charged for corrupt acts or criminal offences;

7.5.2. the Petitioner, as per sections 31.2 and 125 of the CCPC established the locus standi to invoke Article 21 section 10 of the Constitution to initiate a Petition before this Court as mandated by Article 29 section 3 of the Constitution as a legal representative of the Government to test the legality of suspension order involving critical questions concerning the interpretation of laws and the Constitution. Section 12 (a) of the Office of the Attorney General‘s Act, 2006 mandates to act upon matters “as may be referred to by the Government.” However, the Petitioner being mandated to represent the Government which invariably is established to protect the interest of the State and having submitted before this Court; the Petitioner shall not have locus standi to defend the Minister and the Speaker for the alleged offence in the Court; and

7.5.3. the suspension of the Minister and the Speaker by the Respondent for the alleged offence committed prior to the current posts is established as not within the preview and the scope of section 167(2) of the Anti-Corruption Act, 2011 and the National Assembly Speaker‘s Act, 2004. Thus, the Court upholds to sustain the interim order No. Chetho(Ka-18)2012/2629, issued on 9th November, 2012 to apply irrevocably till the finality of the Judgement.

 

ISSUED UNDER THE HAND AND SEAL OF THIS HON’BLE COURT ON THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND TWELVE CORRESPONDING TO THE SEVENTEENTH DAY OF THE TENTH MONTH OF THE WATER MALE DRAGON YEAR.

 

(Sangay Khandu)

(Lungten Dubgyur) Justice

(Norbu Tshering) Justice

 

Full document can be downloaded from the Royal Court of Justice website (http://www.judiciary.gov.bt)

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Comments

  1. in plain english plez. Does this mean that ACC cannot suspend these 2?

  2. cheap justice at work, the judicary has no soul, no conscious, it has lost the reputation as the custodian of the constitution, become a pimp, interpreting the law to suits the govts needs.

    Have lost all respect for the Judicary! we can say we are fcuked as a young democracy.

  3. judiciary is becoming a problem now then solution…..

  4. By that token, ACC’s investigation of Gyelposhing is also out of the scope and purview of AC Act as secton 25 (g) that provides for investigation also mentions the same as in the case of section 167 (2). Check out this if you don’t believe.

    “Detect and investigate any suspected offence, suspected attempt or suspected conspiracy to commit a corruption offence under Chapter 4 of this Act; and…”

    So much for the Justice in Bhutan.

  5. I think few judges are themselves corrupted. In the past we have seen cases where a drangpon was involved in a corrupt case, investigated by RAA, then ACC and OAG forwarded to court and then acquitted by high court ….very funny. It is very questionable. It leaves lots of doubt in publics mind as to wether our judges are giving the fair judgement. I think they are playing with fire. it is dangerous for our peace and stability of democracy.
    The law should be same for every one and not applied selectively like the one today. Very sad. I want to become a judge some day to bring this frauds to light….

  6. By the argument provided, all those who have been invvestiagted by the ACC, prosecuted by the OAG adn convicted by the courts so far for allegations before the ACC was instituted should be acquitted. We can not have two laws!!!

  7. common man says:

    So so so so right…why a special law for two degenerated, senile and corrupt men?? if so OAG should fight for all the people who were suspended during investigation by ACC.. why is there are a double law….hmmmmmm

  8. Hearing the teaching from great Lamas without concentration doesnot make any difference in the mind of ordinary people, it is far better to understand that very teaching makes lot of difference. same like that just listerning to the other people about the case of HM MD and NS JT and blaming to them and law is not the right thinking of bhutanese, we have to follow the procedure of hight court which have the highest and fairest decission takind body of the country who will be not in favour of any one. So lets hear see and understand the case which is against ACC and towo of them. respect is there for ACC but then a red and good looking apple might be quite rooten inside it which we cant judge from the outer surface of that, so very intersted to hear the out come of the very case Vish Both the Very gud LUCK ha ha

  9. As per the constitution article 29, sec 3, ” The AG as the chief legal officer shall be the legal advisor to the legal representative of the GOVERNMENT”

    now as per the office of the Attorney General Act of Bhutan, 2006, chapter 3, sec 12, subsection A “Represent the GOVERNMENT in civil litigation and criminal prosecution before the Courts of Law and tribunals and perform such other functions as may be referred to by the Government”.

    so therefore from the above mention articles, i am wondering why is the Office of the Attorney General even involved in this case. When Minjur and Jigme Tsheltrum took over the lands or given the lands, they never gave the land to the government, the lands were registered to the individuals. If the government was the recipient (by which i mean transferring of state land to government land) then yes OAG could represent, but for gods sake the lands were registered to private individuals, and with my little knowledge, i have never heard the Attorney General’s office representing an individual. Yes Minjur and Jigme Tsheltrum may be part of the government but they are not the government.

  10. The Bhutanese courts for the second time showed the world how unreliable the Bhutanese justice system can get into when dealing with the cases related to influential people? First, when the government was sincerely fighting for a noble cause on tax reforms, the judiciary without an iota of regret and shame hardheartedly shot them down on impropriety ground, and now, when the ACC is trying to put the puzzle pieces together and set the right precedent into fighting corruption as new Bhutan’s way forward strategy, against the chagrin of the masses, the Bhutanese Judiciary in their ill-famed outfit, is here once again obstructing this noble path. This just shows how corrupt the Bhutanese judges are? They are least bothered about the larger interest of the general public. I do not know where we are headed as a Nation.

  11. If the judicial system cannot dispense justice fairly to the nation and it’s people, people will in long run take laws into their own hands out of sheer frustration. This will show the seeds of anarchy and decadence of the society as a whole. God forbid that people don’t get pushed to this end. Otherwise, people might need to take justice in their own hand to see that the thugs are punished.

  12. From the looks of things, I think even a powerful body like the ACC is now becoming powerless and a victim in the hands of the ganged up forces of the judiciary and the elite power houses. If things doesn’t go the right way, I think, Dasho Neten Zangmo should tender her resignation as the Chairperson of the ACC. She must now take up politics and join one of the new parties and contest elections on the platform of fighting corruption. Already, behind her, there is a huge public support and this solidarity from the Bhutanese people will make her mission – that of fighting corruption- greater and noble a cause.

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