ACC had prosecuted Trongsa case on its own after accusing OAG of manipulating the case

The Trongsa land case verdict (story on pg 5)  convicting the current JDWNRH President and former Trongsa Dzongda Lhab Dorji for five years, his wife Karma Tshetim Dolma for six years, former Drakteng Gup Tenzin for six years, former Judge of the Trongsa court Ugyen Tenzin for 18 months, former Nubi Gup Phuntsho for 18 months, surveyor Narayan Dangal for 18 months and surveyor Kelzang Nima for one year raises fresh questions on the OAG’s decision to not prosecute the case in 2016.

ACC forwarded the case in mid 2015 to the OAG with charges against the above in the land scam along with the evidences and confessions but the OAG dropped the case in December 2016 after which the ACC filed the case on its own accusing OAG of manipulating the case.

The Attorney General Shera Lhendup said, “We can hardly comment as the current case is a new case filed under section 128, 3(c). I am told through hearsay that after we dropped the case the ACC reinvestigated the case and brought new evidences and even increased the number of accused from the original six to 10.”

The AG said that he had a meeting with ACC Commissioners and Investigation Officers and informed them of the weakness in the case which was primarily the lack of sufficient evidence against the principal accused which is Lhab Dorji and his wife but they never informed him that the case investigation is not complete.

The AG said the ACC filed the case in the Trongsa court citing manipulation of information as its basis and the Trongsa court did not send a show cause notice to the OAG but accepted the ACC case.

The ACC said that there was some additional investigation done later but this did not impact the main facts of the case and did not have any impact on the outcome of the case.

OAG drops case in December 2016 and ACC rebuts back

The OAG on the 30th of December 2016 wrote to the ACC saying that it would have to drop the Trongsa land case as there were no legal grounds to prosecute the case and any of the accused in the case.

At the time the Attorney General Shera Lhendup had said, “The faulty records created by administrative lapses of the state machineries cannot become criminal liabilities for individuals who acted in good faith on such resultant public records.”

OAG challenged several of the evidences and charges submitted by ACC in the case and gave a clean chit to all of the above.

The main heart of the case from the ACC was that with the full knowledge and cooperation of the then Trongsa Dzongdag Lhab Dorji his wife Karma Tshetim Dolma colluded with Dragten Gup Tenzin and late Tshogpa Rinchen in order to fraudulently register four plots of lands measuring 2.77 acres at Taktse which were already acquired by the MoE and registered under Thram No. 514 in 2003 with the then Department of Survey and Land Records.

The ACC said forged sale deeds were processed through Trongsa Court with the intent to claim land substitute at Nubi Gewog where Karma Tshetim Dolma had later constructed a resort after land substitution was approved by the Department of Survey and Land Records (DSLR) in 2007.

ACC thus recommended OAG to charge alleged suspects for the offence of forgery, false reporting, aiding and abetting, illegal registration of excess land and official misconducts.

However, according to the OAG the main Chazag Thram had recorded Thram Nu 514 as a separate MoE plot for which land substitution was granted in Gelephu through Royal Kidu in April 2003 but that information was not reflected on the newly issued Blue Thrams of the two sisters that enabled the alleged transaction without fault of the purchaser, Dzongkhag court and other dealing officials who made their decisions based on the standing official Thram records issued by NLCS to the Dzongkhag and Gewog Land Records.

The OAG also said Trongsa Dzongdag and Dragten Gup were not informed of the land substitution kidu so the OAG said they had no information on Thram Nu 514 already being registered by the Ministry of Education.

The ACC did not accepting this saying that the Dzongda as a member of the Land Acquisition Committee was well aware of the plot number 514 and violated laws in facilitating the purchase of the plots and seeking substitution for it later.

Another major issue from ACC was that during the Trongsa NCRP survey in 2010, Karma Tshetim Dolma, in collusion with field Surveyor, Kelzang Nima, had fraudulently registered one additional plot measuring 1.933 acres as GY plot on the already registered satshab land.

The OAG said it did not find any evidence of collusion between Kelzang Nima and Karma Tshetim Dolma as the applicable guidelines, notification and the Royal Kasho directed the field surveyors to measure and regularizes excess lands that fall under the definition of plot “Y” in favor of the lawful Thram owner.

The ACC has rebutted pointing to section 157 of the 2007 Land Act that says a land allotted as substitute shall not enclose any patch of Government land or Government Reserved Forests land inside its boundary which means that satshab land is not eligible for excess land registration.

The OAG rebutted back again saying that since the satshab was allocated before the enactment the 2007 Land Act the additional land it got in 2010 does not come under the 2007 Act.

The OAG had dismissed all other ACC’s charges, findings and evidences against former Trongsa Dzongdag Lhab Dorji, his wife Karma Tshetim Dolma, former Dragten Gup Tenzin, former Nubi Gup Phuntsho, National Land Commission surveyor Kelzang Nima and former Drangpon Ugyen Tenzin.

The ACC at the time said that it does not agree with the dropping of the charges and stands by its case.

The OAG at the time said it has a screening corpus or committee comprising of all the division heads and deputies to minimize erroneous determination on the facts of the law.

ACC files case and accuses OAG of manipulating 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 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 at the time.

It went 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 said, “Further, OAG’s report presents arguments that would normally be raised by a defendant in the court during prosecution.”

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

OAG contemplated a Constitutional case against ACC but was stopped by former PM

A reliable source the OAG at the time said the OAG was 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.

After the ACC filed the case on its own Attorney General Shera Lhendup 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.”

Perhaps anticipating a Constitutional challenge, the ACC in its submission to the Trongsa court had quoted a Supreme Court judgment which said, “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.”

However, before the OAG could make the move the then Prime Minister Dasho Lyonchhen Tshering Tobgay wrote to the Office of the Attorney General (OAG) asking them to refrain from criticizing the Anti Corruption Commission (ACC), and to not challenge the ACC in the court of law on the Trongsa land case.

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