Over 40 members of the press, supporters of the defendants and the general public crammed into the small Bench 1 courtroom of the Thimphu district court where the preliminary hearing of Sonam Phuntsho’s (Ap SP) charges of libel against Namgay Zam and Dr. Shacha Wangmo was held on Thursday, August 18.
Sonam Phuntsho submitted his grievances to the court in 25 points which he said were false and defamatory in Namgay Zam’s August 10th Facebook post and had caused damage to his standing in society. Since the story posted was about the then ongoing case in which he had said he was owed 25.9 mn , Ap SP said he was suing the two defendants for damages of 10% of that amount which comes to 2.59 mn.
The Penal Code sets compensation to be paid to the aggrieved party for a minimum of one month to a maximum of three years calculated in accordance with the minimum wage.
“The post was before the Supreme Court had even concluded its hearings,” said Ap SP, “I do not think there is anybody who hasn’t seen the post; the whole world has seen it.”
Among the submissions were that he hadn’t dealt with the brother in-law for the alleged 0.7mn and that he was unaware of the forging of the mother, Tandin Bidha’s thumbprint on the building sale agreement which was given to him by the elder sister Sonam Wangmo who had agreed to obtain the sign from Tandin Bidha who was then away for the yearly Choku (puja). He said he was in possession of the power of attorney that Sonam Wangmo had given him in which she was given control over the whole building and also denied that there were any attempts to reach a settlement outside of court.
He also said that he felt he was being accused by implication as to the well being of Sonam Wangmo, the absconding sister, so he was obliged to inform the court that though he hadn’t seen her himself his contacts told him she had lived for a year in Siliguri and was now married and living with a Tibetan in Nepal.
“Everybody says the courts were biased towards me because of my relation to the Chief Justice, but I have never uttered his name for my benefit,” said Ap SP, “I only win because I act according to the law. Look at the Major KT Penjor case. We followed the due process of the law and went up to the Supreme Court where the verdict stated I was to be reimbursed. Due to their failure to do so I obtained an arrest warrant and that’s when they fled to Nepal.”
Dr. Shacha then spoke and asked that the court note Ap SP’s statement of having no dealings with the brother in-law because they had been involved in a car transaction. She also said that the plaintiff had completely denied knowledge about her mother’s absence during court proceedings at Bench IV whereas he was now changing that stand. She also said that she herself had approached Ap SP in the presence of a legal officer named Choedra where he had refused her outright and even boasted of his invincibility in court.
The court then called upon senior freelance journalist Namgay Zam who quoted clauses 2, 3 and 5 of Article 7 of the Constitution as giving her rights to freedom of opinion, speech, expression and conscience and the right of Bhutanese citizens to information.
“I don’t think I have lied. I don’t think I have taken sides and I don’t think I have done anything wrong,” Namgay Zam said. “I just did my duty as an independent journalist to check the story and inform the public about a man like him.” She said that she would submit her arguments to the court in writing.
Both defendants said that they had acted without malice and stood by their stories.
After the two parties were heard Rinzin Wangchuk, President of the Journalists Association of Bhutan (JAB) which had earlier received a letter from Namgay Zam seeking support in the case, sought permission to address the court. He asked the court to dismiss the suit citing as reasons the sub-judice nature of the then ongoing case of the parties and the unclearness of social media regulations which could set a precedent of every user flooding courts with defamation suits. He also said that this could curb the freedom of expression of the people.
On being asked by the judge, the two defendants said they agreed with dismissal or deferment but Ap SP refused saying he was the one with grievances and unless JAB paid him the 2.5 mn in damages he would push on with the case.
“Right to a court hearing is the fundamental right of all citizens and if the court dismisses this case then we would be setting a precedent whereby the trial of the main parties A and B could be dismissed by the plea of a party C,” said the Judge.
A group of around five women also had submissions to the court. Karma Choki spoke on their behalf and told the court that the post was not responsible journalism as it did not reflect the character of the sister Sonam Wangmo. She said that the sister had also borrowed money from them and had not paid them back.
Sonam Phuntsho had filed the defamation suit on August 12, two days after the former BBS news anchor Namgay Zam’s post on her Facebook page of Dr. Shacha Wangmo’s story about her case with the plaintiff that was then being heard at the Supreme Court. The post caused uproar among thousands of Bhutanese in the online community and currently has almost 5500 likes and 4400 shares.
Defamation laws require the plaintiff to prove that the statements about him were false and caused him physical, mental or social damages.
The defense to defamation is proof that the statements were true, disseminated in public interest, just statement of opinions and carried out without malice.