Attorney General submits his resignation

The Attorney General Lungten Dubgyur of the Office of the Attorney General (OAG) submitted his voluntary resignation letter to the Office of the Prime Minister today.

Multiple sources who did not want to be identified confirmed his resignation letter.

The AG after submitting his letter even packed his office and left. He may, however, have to wait until it is formally accepted.

The voluntary resignation of the AG comes after the Prime Minister Dasho (Dr) Lotay Tshering had asked him to provide an explanation over the action taken by the Supreme Court to suspend two justices of the High Court over a drug case judgment given by them, which the OAG had not appealed.

As per the OAG Act 2015 the AG may resign by submitting his resignation one month in advance to the Druk Gyalpo through the Prime Minister.

Background

A Friday 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.

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.

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.