Minjur Dorji in Mongar Court for Gyalpoizhing Land Scam Case

Home Minister Minjur Dorji submitted to the Mongar District Court yesterday, through a legal council (Jabmi), that he had acted in accordance with the Bhutan Municipal Act of 1999, when allotting plots in Gyalpoizhing in 2005 – 06 as the Mongar Dzongda and Chairman of the Plot Allotment Committee.

The Anti-Corruption Commission (ACC) has charged the Home Minister for official misconduct with criminal intention, under Section 294 of the Bhutan Penal Code.

In a courtroom filled by about 15 people, comprising legal representatives from the ACC, the Home Minister and media personnel, the Mongar Judge read the 15-minute submission presented by Lyonpo Minjur Dorji’s Jabmi, Jamyang Sherab Wangdi.

The opening statement said, the Bhutan Municipal Act of 1999 vests on all municipal committees the specific authority, under Section 51, to purchase, lease, or otherwise acquire land and property, and sell, lease, or otherwise dispose it off in the interest of the residents.

As Chairman of the Plot Allotment Committee, Lyonpo Minjur Dorji had allotted plots to the Drametse Dratsang, Kharchu Dratshang and a Kurichu employee. Two plots were also allotted to Royal Family members, but do not figure in the charges.

The submission stated that the plots were allotted by the Committee in good faith, and not by the defendant in his individual capacity, since the defendant, being the Chairman, was one of many members, and merely signed and executed the decision of the Committee.

The recipients were eligible applicants and not related to the defendant, hence, there was no basis to prove criminal intention to derive personal gains.

To be held liable for the offence of official misconduct under Section 294 of the Penal Code of Bhutan, the legal council said that it requires the defendant to have knowledge that the Act constitutes an unauthorised exercise of official functions.

“The ACC must prove that the empowering legislation of the Bhutan Municipal Act 1999 was repealed at that point of time,” the submission said. “They must prove beyond reasonable doubt that the Mongar Municipal Committee (MCC) was aware that such an act was unauthorised at the time of performance of the Act, and prove the criminal intention of the defendant to derive personal gains.”

The opening statement also said that the fundamental principal of criminal law, namely “Actus non facit Reum nisi men sit rea” requires that, for a person to be found guilty of a criminal offence, he or she must have committed an illegal act (actus reus), and had the required “guilty mind” (men rea) for the criminal offense.

“The ACC must prove both elements of the offense beyond a reasonable doubt,” the Minister’s opening statement said.

The Bhutan Municipal Act of 1999 empowered the Committee to allot land, and the Act was enforceable in the court of law at the time the alleged action was performed by the MMC, the submission stated. Hence, it was neither an illegal act committed, nor a basis to prove criminal intention to derive personal gains. Therefore, the ACC fails to present a prima facie case of official misconduct under the penal code.

The alleged allotment of the land in 2005 was also not prohibited by a Kaja, as alleged by the ACC. The Kaja issued in 1987 clearly states that the allotment of land is not permissible, except after the promulgation of laws that permit allotment of land in the urban area. The condition specified in the 1987 Kaja was fulfilled by the Bhutan Municipal Act of 1999. Therefore, the Kaja was automatically repealed, as the condition stipulated in the Kaja was fulfilled.

The Mongar Municipal Committee had also followed the criteria specified in the circular issued by the competent authority in 1991. However, ACC failed to provide factual specificity in the charges, hence the defendant is unable to prepare a complete defence, the opening statement said.

The circular of 1999 also does not state that the only criteria for a person to be entitled to receive plots are persons, who own and operate legal shops in the given township; in fact, it only requires that preference be given to such persons, and does not bar other Bhutanese applicants, such as the Dratsangs and private individuals.

The Mongar Municipal Committee is a legal entity empowered by the Bhutan Municipal Act 1999 to allot plots. The very fact that criminal charges are instituted against the defendant is to disparage his public image.

The minister’s opening statement also submitted that the Anti-Corruption Commission had no legal standing for prosecution. Since the Constitution is the supreme law of the country and, in the absence of an express provision in the Constitution, with regard to devolving the authority to prosecute any entity, apart from office of the attorney general, is ultra virus. Therefore, the action of the ACC taking up the case against the defendant is illegal.

The Anti-Corruption Commission will submit its rebuttal to the Home Minister’s statement on January 9.

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From KUENSEL

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