Constitutional provision and 2015 DNT Press release come back to haunt Home Minister

The Thimphu District Court on 27th August 2019 convicted the Home Minister Lyonpo Dasho Sherub Gyeltshen for claiming vehicle insurance worth Nu 226,546 fraudulently.

After the verdict the Home Minister did not step down as the prevailing opinion at the time was that he can appel to the High Court within 10 days and he would have ‘presumption of innocence’ till the Supreme Court.

This presumption in some ways was deemed to be drawn from Article 7 titled Fundamental Rights under the Constitution where section 16 says, “A person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.”

However, a prominent legal expert, on the condition of anonymity said that while Lyonpo can appeal, the fact is that he has been convicted and found guilty by the district court in a penal case (criminal case) and so he has lost the ‘presumption of innocence’.

The legal expert said that since the Supreme Court does not allow public interest litigations it falls upon the Office of the Attorney General (OAG) as the prosecuting agency to seek clarification on this from the Supreme Court.

The legal expert said that the Supreme Court would surely say there is no presumption of innocence and accordingly issue directions to the government mandating the suspension of the Home Minister from his post, but still retaining his post in the National Assembly until the appeal process is over.

The expert gave the example of the Election Act. The expert said that if a candidate is criminally convicted by a district court the candidate cannot take part in the elections saying that he or she can be presumed to be innocent till the appeal process is over.

“The ECB would go by the conviction of the District Court and that candidate would be barred as the person has lost the presumption of innocence and is convicted even if the appeal process is on,” said the expert.

The legal expert said that if the government really wants to justify the Home Minister continuing in office and test the legal soundness of ‘presumption of innocence’ of the minister then either the OAG on its own or the government through the OAG should seek clarification on ‘presumption of innocence’ from the Supreme Court.

The expert opined that the Supreme Court would definitely say there is no presumption of innocence.

For the moment it looks like neither the government or OAG is willing to take that route.

The legal expert said that under suspension the minister would get 50 percent pay and still be able to remain as a MP and if proven innocent then the minister can get back on the post and also collect the suspended part of the pay.

Apart from this Constitutional and legal headache for the government, another issue that could haunt it is a July 2015 DNT press release welcoming the replacement of the former Foreign Minister Lyonpo Rinzin Dorji.

The former Foreign Minister had first stepped down from his post to fight the Lhakhang Karpo case.

The Haa Dzongkhag court in mid 2015 had exonerated the minister but soon after the then PDP government decided to replace him as the then Home Minister Lyonpo Damcho Dorji was transferred as the Foreign Minister and Lyonpo Dawa Gyeltshen became the Home Minister.

The DNT issued a press release in July 2015 in response to the exonerated ex-Foreign Minister being replaced.

DNT’s then release said the PDP government’s decision to remove the Foreign Minister who was embroiled in a lawsuit in the Lhakhang Karpo case was a correct move.

The release said that DNT is confident that such decisions will have a positive impact on the collective effort to root out corruption in the country.

DNT said that it believes that a decision to this effect should have been taken much earlier. “Therefore, question that one could ask ourselves is: Why did the PDP government wait for this action to be taken only after the court verdict that cleared the Foreign Minister of corruption?” asked the release.

“PDP presents this action on high moral ground. If morally sound, we could ask why PDP nominated him in the first place as candidate and then as a Minister?” said the release. It alleged that this contradictory decision is a demonstration of the weakness of PDP’s executive and poor judgment of its leaders.

DNT’s 2015 release said that it believes that corruption is a serious threat and impediment to the nation’s progress and it asked the PDP government to do much more to combat corruption.

The ex-Foreign Minister was eventually exonerated by the Supreme Court.

The question of this difference in stance by the DNT was raised to the Prime Minister by a journalist during the Friday meet.

Lyonchhen (Dr) Lotay Tshering responded saying that he has no formal stand on the case and that there would be no interference in the court’s procedures.

In response to a question by The Bhutanese the Prime Minister said, ‘I personally will not rush into taking any unilateral decision as of now but when we have to I will.”

The paper then asked Lyonchhen if the Home Minister is planning to step down voluntarily from his minister’s post till the case is over.

Here Lyonchhen said, “Not sure and I could not talk to him. If you believe, I am sure he being a very wise man, will come to discuss.”

In response to a question on presumption of innocence issues Lyonchhen said he is aware of all these and it is the beginning and not the end of the process.

Article 17 section 3 of the Constitution says, ‘The Druk Gyalpo shall appoint Ministers from among the members of the National Assembly, on the recommendation of the Prime Minister, or shall remove a Minister on the advice of the Prime Minister.’

When the DNT General Secretary Phurba was asked about the difference in stance between 2015 and now he said that this is an issue which should be decided by the government and the Prime Minister and not the party as the party and government are separate.

He said that he cannot do anything until he gets an official notification from the Prime Minister or the Election Commission of Bhutan.

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