Though proven as a land scam the ACC has so far filed criminal charges only against the Speaker, the Home Minister and a then member secretary of the Gyelpozhing plot allotment committee.
According to legal experts including two former judges that the paper talked to ACC could have also applied criminal charges against the involved ministers like Lyonchhen Jigmi Y Thinley , Lyonpo Zimba and Lyonpo Leki.
The ACC on its part has said that the judiciary can change or include other charges if it so found them. “We are not legal experts, so we leave it to the interpretation of the law by experts to include additional charges or modify charges,” said an ACC official.
In an earlier interview, the ACC Chairperson, Dasho Neten Zangmo, on the issue of criminal charges against the three ministers said, ‘it would be up to the courts to make the final legal interpretation and application.’
The issue of criminal charge is a sensitive issue since criminal charges against the three ministers would considerably dimish the electoral prospects of the Prime Minister and Lyonpo Zimba as the Election Act forbids anyone with an ongoing criminal case or one convicted of criminal case from taking part in the elections.
Judge Gyembo Dorji of the Mongar Dzongkhag court who is presiding over the Gyelpozhing case said that the court can change and modify charges if the court finds it is not correctly applied. He said he would do the same if there are similar circumstances in the Gyelpozhing case.
He said, “The court cannot delete or add charges as this would be ‘suo moto’ action with the court acting as the prosecutor, but if ACC’s charges are not relevant then the court can assign the appropriate provisions.”
The Judge said that generally courts can change civil charges into criminal ones and vice versa. He said the final nature of the applicable charges would be known in the court verdict.
According to a former judge familiar with the ‘Thrimzhung Chhenmo’ which is applicable during the period it is unfair to only criminally charge the Speaker and the Home Minister who held official posts at the time.
He said, “The main basis for criminally charging the Tshogpon and the Home Minister is because they held official positions when allotting land meaning that they were aware about the laws and even then had violated their official position and powers. In my opinion this same principal also applies in the case of the then cabinet ministers like Lyonpo Jigmi Y Thinley, Lyonpo Yeshey Zimba and Lyonpo Leki Dorji who also held official positions, should know the laws and accepted illegal allotments from the Speaker who was a subordinate.”
The then three ministers had accepted government land across the river which was not even part of the Gyelpozhing town. In addition to existing laws the Fourth King through numerous Kashos to the government had expressly forbidden such acts.
According to the former two judges and legal experts the ACC had taken a very lenient position in framing criminal charges which was technically wrong and not in line with Royal Kasho’s and the Thrimzhung Chhenmo.
They pointed out that the biggest legal blind spot in the ACC’s criminal charges is that it has not charged anyone with the violation of the Fourth Kings Kasho’s prohibiting anyone else but the King to give land.
The Thrimzhung Chhenmo says, “Any Kasho issued by His Majesty the Druk Gyalpo as an injunction or directive to the general public, the Dzongkhags, villages or to private individuals shall remain in force as laws under the Thrimzhung Chhenmo until such time as they are withdrawn by His Majesty Druk Gyalpo.”
The former judge said, “This means that any violation of the King’s Kasho was in effect a criminal act and also violation of the Thrimzhung Chhenmo which can be criminally charged.” Though the ACC investigation proved that land across the river taken by the three ministers was government land not meant to part of the town no criminal charges were filed against the Speaker and the three ministers for violating the Royal Kasho specifically issued for ministers and government servants.
His Majesty the fourth King in a Kasho in 1980-81 made it clear that all rural allotment of government land can only be done by the throne. A Kasho in 1987 further reiterated that all allotment of land in urban areas were to be done only by His Majesty the King.
Furthermore, a Kasho of His Majesty to the Home Ministry dated August 2, 1991, says, “I have repeatedly instructed you that except His Majesty the King no one is authorized to allot government land… However despite my above instruction, while doing the resurvey, it was revealed that allotment of lands were made without paying any heed to my instructions by some Dzongkhags. Such allotment was supposed to be regularized according to my Kasho issued on the 17th day of the 9th month of the Wood Mouse Year and any allotment made thereafter by any member of the Royal Family and officials are to be nullified and the land allotted to be confiscated.”
According to a legal expert one of the other applicable charges against the three ministers and the Speaker not explored by ACC is Chapter six Part one which deals with, ‘Cheating and undue influence of Trade and Commerce, Unfair practice of ‘Dey’ and ‘Sang’ and of government prohibited properties.
Chapter six of CHHA 1-1, states that “the buying and selling business of the government prohibited properties shall not be permitted in any restricted place. In violation of the provision, the government would confiscate the properties transacted and forfeit the values involved. Moreover, the parties to the transaction including the witnesses will be punished with imprisonment for a term, which may extend from three months to three years.”
A legal expert said that allotment of government plots across the river in violation of Royal Kasho’s was equivalent to buying and selling of government prohibited properties and this section should charge both the seller which is the Speaker and the buyers who are the three ministers.
According to legal experts another criminal charge applicable under the Thrimzhung Chhenpo is section PA 11 Chapter 13 Part 1 coming under Theft.
An expert said this would be applicable on the Speaker and the ministers.
PA 11 says, “A person who bought or received any property which he knowingly knows that had been stolen and conceals the fact when inquiries into the theft are made by the Thrimkhang, will be made to restore that property to the real owner and also will be liable to punishment ranging from half the sentence liable for the thief.”
Another expert said that Chapter 16 Part 1 called ‘Apprehending of Lawbreakers’ is also applicable. Under this the legal expert said that MA 1-1 was applicable.
This section states, “A person who witnesses any other person committing an act violating the law, should report the matter to the nearest Thrimkhang or competent local authority.”