OAG contemplating Constitutional case against ACC over Trongsa Land case

The Anti Corruption Commission (ACC) filed the Trongsa Land case with the Trongsa District Court on February 15th 2017. The Trongsa District Court subsequently accepted the case to be prosecuted by ACC.

The acceptance of the case by the Trongsa District Court comes as a major setback for the Office of the Attorney General (OAG), which in a letter to the ACC, dated 30th December 2016, had said that there is no case and it is dropping all charges.

The main heart of the ACC’s Trongsa Land case is about the fraudulent transfer of government and private lands in Trongsa into the name of the former Trongsa Dzongda Lhab Dorji’s wife’s name facilitated by the Dzongda and other local government figures.

 

ACC says OAG manipulated case

 

The ACC in its submission to the Trongsa Court said that after it reviewed the OAG’s contentions on why the case did not merit prosecution, the Commission, on the basis of its findings and corroborating evidences is convinced the case merits prosecution and such prosecution serves public interest.

ACC cited section 128 (3) of the Anti Corruption Act of Bhutan 2011 which provides that it may carry out its own prosecution when the case is delayed without a valid reason, manipulated or hampered by interference.

ACC charged the OAG with manipulating the Trongsa Land case.

“OAG in its review, whether inadvertently or by design, has conveniently amputated many facts out of its context and stirred debate in isolation without taking into account all related facts and evidences surrounding the issue around the debate,” said the ACC submission.

It goes on to say that the case is a complex one riddled with many interconnected facts and information emanating from many parallel events running along one common timeline.

“One cannot fully appreciate the evidentiary value of materials collected to be able to construct a fair and objective conclusion about the criminal culpability of those involved unless every piece of fact is placed in its rightful context. OAG’s report presented inconsistent and even self-contradictory basis to support its own argument,” said the submission.

In a stinging rebuke to the OAG the ACC submission goes on to say, “Further, OAG’s report presents arguments that would normally be raised by a defendant in the court during prosecution.”

It says, “In the view of the above the Commission strongly believes that the case has been manipulated.”

 

OAG contemplating a Constitutional case

 

Meanwhile, according to a reliable source the OAG is studying the possibility of filing a Constitutional case in the High Court against the ACC’s right to prosecute cases like the Trongsa land case.

The Attorney General Shera Lhendup while not confirming or denying such a move said, “The present situation gives the justice sector an apt opportunity to put section 128 (3) of the ACC Act to a necessary test on its Constitutionality because we cannot have our rule of law being derailed from its Constitutional path.”

The AG said that it is a healthy sign as democratic institutional arrangements are made to provide necessary checks and balances.

“As much as the OAG determines to drop an ACC report based on its merits, ACC is empowered to pursue its own process if there is a prima face case of fact manipulation as ACC presently perceives to believe,” said the AG.

However, he said, “But for ACC to invoke section 128 (3) of the ACC Act for locus standi to file suit against suspects, it is mandatory to first convince the court of the fact of alleged manipulations done by the OAG. The cart cannot be placed before its horses.”

The AG said that the OAG’s decisions were based on several rounds of evidential and public interest tests by the members of the screening corpus. As required by the OAG Act and its provisions, the AG said that any prosecution is disallowed when the credibility of the evidence is of serious concern because, in a criminal case, the strict standard requirement is to prove your charges beyond reasonable doubts.

Perhaps anticipating a Constitutional challenge, the ACC in its submission to the Trongsa court has quoted a Supreme Court judgment which says, “It is not unconstitutional to subject the OAG’s prosecutorial discretion to a check and balance as contemplated by section 128(3) of the ACC Act 2011, which is in further subject to judicial scrutiny. It is in fact desirable under a democratic system of governance.”

 

ACC main points against OAG’s case dismissal

 

The Trongsa Land case involves several facets but there are some key and main issues around which all the charges revolve.

 

4.73 acres

 

The ACC case involves the illegal acquisition of 4.73 acres of land at Thumgang or ‘view point’ in Trongsa by Karam Tshetim Dolma and her husband Lhab Dorji in his capacity as Trongsa Dzongda. They then proceeded to build a Nu 168.37 mn Raven resort on it.

This 4.73 acres was satshab or land substitution to the Dzongda’s wife for 2.77 acres land acquired by the ILCS project in Trongsa.

ACC says this 2.77 acres in turn was fraudulently acquired by the Dzongda’s wife from government land already registered in the name of the Ministry of Education by forging documents to show that they had bought it from the original owners in 2005 who had in reality already given the plot to the MoE in 2003.

The ACC says this was done with the help of her husband the Dzongda and Drakteng Gup Tenzin. The original owners Sonam Choden and Yangchen who are both sisters denied ever selling land to Karma Tshetim or having signed on any such document.

The ACC says then satshab was taken by the Dzongda’s wife for the 2.77 acres not in keeping with procedures. This satshab was re-measured to illegally increase it by 1.993 acres to 4.73 acres in the 2010 National Cadastral Resurvey Project, when satshab land is not eligible for excess land.

The OAG had dismissed this main evidence saying that the Trongsa Dzongda never knew the 2.77 acres land was registered with the MoE as the blue thram or lagthram with the two original owners still showed it to be in their name allowing the transaction.

However, the ACC has shot back with evidence of a letter sent to and received by the Dzongda which clearly states that the 2.77 acres is MoE land, which according to ACC shows the Dzongda knew it to be government land all along but still facilitated the land transfer to his wife.

The OAG had also said that the late father of the two sisters Kinzang Dorji had signed both the court application and sale deeds but the ACC says that this is mere speculation by the OAG since the signature does not match the actual signature of the late Kinzang Dorji. ACC has also pointed to the statement of Gup Tenzin saying it was instead signed by the late Tshogpa Rinchen instead which the ACC says is also not true as they have concluded Gup Tenzin to have committed the forgery.

 

2.18 acres

 

The case also involves the illegal acquisition of another 2.18 acres of land in Drakteng Gewog under Trongsa Dzongkhag by the former Dzongda’s wife. The Dzongda’s wife first misled the original owner Gyalmo into believing that she was selling her land to the government when actually Karma was buying it at a government rate so that she could get land compensation with her husband’s help.

The Dzongda in connection to the same land told the National Land Commission that plot No 105 measuring 51 decimals is actually 1.10 acres doubling the size of the land and getting it registered in his wife’s name. Here the OAG had dismissed this aspect saying that plot Nu 105 measuring 1.10 acres actually did exist according to a 1999 NLC map. However, the ACC here too has come back saying that records actually show plot number 105 measuring 1.10 acres to actually be government land.

 

Forgery

 

The ACC charged the Dzongda with one count of forgery saying he and his Assistant Land Record Officer (ALRO), late Sangay Younten, had prepared a note-sheet with intention to create an evidence to record that cash compensation list was revised after consultation with the concerned landowners to show that of the 23 people only 13 wanted cash and the rest Satshab. His wife’s name was among the satshab lot. Gup Tenzin had denied to the ACC that such a meeting ever took place showing that the list had not been changed through any public consultation.

The OAG said that as no other absentee person was involved in signing the note-sheet, there was neither need to commit nor any evidence of actual commission of forgery by the Dzongda on the note-sheet.  The ACC quoting the penal code has said that forgery is not just about stealing someone’s signature but also defrauding someone of their rights and making false circumstances or false entry in any book or record intending that such circumstances may appear as evidence in any lawful proceeding.

ACC has also charged the former Dzongda with aiding and abetting which apart from facilitating the transfer of plots to his wife also involves delaying compensation to allow his wife to complete her transactions.

ACC using fingerprint forensics had shown that Gup Tenzin had forged the agreement which claimed to sell the 2.77 acres land to the Dzongda’s wife by using his own thumbprint in place of the plot owner Sonam Choden and also in place of the witness. Here the OAG had dismissed this saying there were no complaints from Sonam Choden or the witness on the legitimacy of the transaction. The ACC has called the OAG’s reasoning on this aspect to be ‘absurd’ saying how can the witness complain when he was not even aware of the forgery.

Similarly there are other aspects like Gup Phuntsho’s and former High Court registrar Ugyen Tenzin’s forgery charges which OAG has dismissed but ACC has said is based on evidence.

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