As Judiciary suspends 2 justices PM asks OAG for explanation

A press release sent from the Supreme Court said that the Judiciary of Bhutan has suspended Justices Pema Rinzin and Tshering Dorji of Bench I, of the High Court with immediate effect for a deliberate miscarriage of justice in a drug case involving two defendants, one of whom is a son of a Kuensel Reporter.

While the case was sub-judice at the High Court, it was found that the Kuensel reporter, the present Attorney General and one of the two Justices had gone for an overnight trek to Phajoding. After the trek, the Bench I rendered a judgement in the case, with a total reversal of the Thimphu Dzongkhag Court judgment that had given 5 years to both defendants.

It was observed that though the OAG normally appeals against such total reversal of judgments, in this particular case, the Office did not appeal to the Supreme Court.

While the two Justices have been suspended there are now questions on what will happen to the Attorney General (AG) who comes under the Prime Minister.

The Prime Minister Dasho Dr Lotay Tshering said, “Since the case is about overturning of a case by a lower court by higher court I have no say on whether it is right or wrong. Since the OAG’s name is also mentioned I sent some of the details and I asked (the AG) what is your stand on it. I have to hear them and give Dasho AG and his team a chance to reply. It is not about one individual but a team and the AG does not go and prosecute. Prosecution is done by the whole team.  I have asked for an explanation and to give him a fair chance. We have to hear out his justification.”

“Ultimately when one thinks while there can be some association the ultimate judgment was passed by the Drangpons. The Drangpons have been fixed. Down the line what is the involvement? If it is a lot of details, then it will have to be in court and short of that is my process,” the PM added.

He said that constitutionally the AG has all the right to drop any cases and appeal or not appeal any cases.

“I said these are the issues and what is your stand. I need to see the stand and the impact. I have not take any decision and a lot will depend on his reply,” said the PM.

Constitutionally and as per the OAG Act the Prime Minister is the only person who can take any action against the AG who is directly accountable to him.

The OAG has a corpus or committee that decides whether cases should be appealed to higher courts or not. The internal rule in this so far is that generally any case which has different judgments by two courts should be appealed.

The corpus is normally used more for ACC cases.

Reliable sources told this paper that when it came to this case it did not come before the corpus and in fact the AG had given instructions that the High Court verdict should not be appealed.

In 2019 when the case was first prosecuted in the Thimphu District court the AG was Shera Lhendup and later when it was prosecuted in the High Court the AG was the current AG Lungten Dubgyur.

In terms of the accountability of the AG and OAG the PM said, “If you cannot pinpoint the tumor you don’t damage the organ to take out the tumor. If I cannot identify the tumor I will let the agency go on.”

The PM also said he did not get any evidence from the Supreme Court.

The two justices will be suspended for six months after which they will be reinstated.

Reason for Suspension

The release said the two Justices have been suspended for having caused a deliberate miscarriage of justice in a case related to drug smuggling and possession involving two defendants.

One of the defendants is the son of a Kuensel Reporter. The other was caught with possession of SP+ and upon interrogation, he named the reporter’s son as a supplier. Upon investigation and search, a large quantity of Spasmo Proxyvon Plus (SP+) was discovered in the possession of the reporter’s son. The Office of the Attorney General (OAG) prosecuted them for drug smuggling and possession in 2019.

There were also said to be numerous bank transactions and WeChat messages between the defendants. The Thimphu Dzongkhag Court, based on the evidence, convicted both the defendants and sentenced them to an imprisonment term of 5 years each. The defendants appealed to the High Court and their case was assigned to Bench I.

After the overnight trek to Phajoding the Bench I rendered a judgement in the case, with a total reversal of the Thimphu Dzongkhag Court judgment. The judgment reasoned that the defendants tested positive upon a urine test, based on which instead of 5-year imprisonment, the two defendants were ordered to undergo compulsory treatment in a rehabilitation Centre for a duration of 3 to 6 months.

Problem with Bench 1 Judgment

The narcotic Drugs Psychotropic Substances and Substance Abuse Act (NDPSSA) differentiate between the offence of illicit trafficking and substance abuse. While the offenders of substance abuse are liable to undergo compulsory treatment and rehabilitation for a certain period, the offence of illicit trafficking of narcotic drugs and psychotropic substances is a felony crime.

Moreover, one of the defendants was found to have been convicted for the same offence in 2015, making him a recidivist which Bench I failed to consider in the judgment despite having substantial evidence in this regard. Further, it was observed that though the OAG normally appeals against such total reversal of judgments, in this particular case, the Office did not appeal to the Supreme Court.

How the issue came to light?

As part of the recent Transformation and Assessment exercise of the Judiciary, controversial judgements were assessed and reviewed. During the process, the Grievance Cell of the Judiciary received complaints citing collusion among the Kuensel Reporter, the Attorney General and the Presiding Justice in the particular case.

Accordingly, the committee of three officials from the Supreme Court and High Court investigated and looked into the legitimacy of the complaint received by the Grievance Cell. Based on the committee’s report, the Supreme Court issued a direction to the high Court ordering a review of the case, in the interest of justice and upholding the Rule of Law.

A Special Bench at the High Court, after a thorough review, found that Bench I had indeed caused a grave miscarriage of justice. The Special Bench reversed the decision of Bench I affirming the Thimphu Dzongkhag Court’s judgement. The defendants appealed to the Supreme Court. The Supreme Court dismissed their appeals stating that the judgement of the Special Bench is fair and has observed the due process of law.

The release said the suspension of the two Justices is in keeping with the Judiciary’s mandate as enshrined under Article 21 of the Constitution and in line with the transformation efforts. It said it is a testament of their commitment to uphold the principles of justice and fairness.

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