The Bhutanese Leading the way.
Home Minister and RICBL officials have appealed to high court
In what came as a major shock to the DNT government, the Thimphu Dzongkhag court on 27th August convicted Home Minister Dasho Sherub Gyeltshen to two months in prison for falsely claiming vehicle insurance worth Nu 226,546.
The crisis is not only in the form of its most senior minister and DNT Vice President being convicted for insurance fraud but also the implication that it can lose him if the trial court judgment is upheld by the higher courts.
Though the case is on appeal the conviction by the trial court has also come as a major embarrassment for a minister with a very clean and senior statesman image and also for a new government right in the start of its term.
The full blown impact of the crisis has been parried for now as Lyonpo’s lawyer appealed to the High Court.
Lyonpo’s lawyer said the appeal to the high court is on several grounds. He stated Lyonpo had valid comprehensive insurance when he claimed the insurance from RICB and there were critical evidences submitted to the court proving the innocence of Lyonpo which were left unattended by the Trial Court.
The lawyer claimed that the conviction was fully based on the vague statement submitted during the investigation period and the prosecutor failed to prove the statement with the corroborating evidences vitiating the admission by Lyonpo.
‘’We have had expert witness summoned to the court upon request by the prosecutor, but the statement of expert witness sustaining the genuineness and legitimacy of such claims were not taken into account. This case warranted the expert opinion and the justice would only prevail on the opinion of the expert. However, such evidences, so cardinal, were not reflected to reason the judgment,’’ states the lawyer.
In addition, they have also reasoned that the court ordering Lyonpo to refund the claim is not in line with the risk and guaranteed of the insurance policy and this claim is duly availed from the company against the premium paid by the customer covering the risk involved therein and this shall not, at all, be deemed to be the money of the company or public.
Meanwhile, a district court official familiar with the case said that the minister had a feeling of his engine car getting hit while he was travelling from Wangdue to Thimphu and the next day he took the car to a workshop for repairing without any intention of claiming for insurance.
It was learnt that the ED of RICBL and the Minister were friends and they had a conversation over a phone whereby the Minister shared about the incident after which the ED told the Minister to let him know if he needs any help.
The court official said, ‘’The first thing you need to do as soon as your car gets damaged is to actually put up an intimation letter to claim insurance from RICBL stating the reason and need of investigation. However, none of these were done (investigation and reasoning).”
The intimation letter to RICBL states that the accident took place but that the Minister had no idea about getting report from the police and thereby the car was directly brought to one of the workshops.
However, in reality the car was repaired at STCBL and not in any of the workshops. So this information was wrong, the court official added.
The official said that the concerned field officer and subordinate told the ED that they cannot issue the insurance claimed by the Minister since they could not assess the extent of damage because the engine was dismantled already and there was no report from the police either.
The official said that despite explanation from the field officer and subordinate, the ED still made them to issue an order. Thereby a committee was formed and the claimed insurance was given.
But now that they have been charged, they are defending themselves by ex-gratia (payment done from a sense of moral obligation rather than because of any legal requirement).
The final judgment from district court, bench I, Thimphu has convicted Lyonpo Sherub Gyeltshen to two months’ imprisonment. The Minister has to pay back all the amount which he fraudulently claimed from RICB.
The case was classified as petty misdemeanor because according to Penal Code of Bhutan 2004, section 311, a defendant shall be guilty of the offence of fraudulently obtaining of insurance, if the defendant presents a false statement as part of an application for commercial or personal insurance as part of claim for payment on a commercial or personal insurance policy. The offence of fraudulent obtaining of insurance shall be value based sentencing which essentially means the value of the amount defrauded.
Likewise, former Executive Director of RICBL, Sonam Dorji was convicted for one year which is graded misdemeanor for misusing his power on two grounds. RICBL’s General Manager Sangay Wangdi is sentenced to 6 months in prison for solicitation.
Inspection officer, Ugyen Namdrol is sentenced to 1 year for forgery and deceptive practice and RICBL official, Sangay Dorji is sentenced to 1 year for aiding and abetting and proprietor of Dagap workshop, Yonten Phuntsho is sentenced for 6 months and was charged for aiding and abetting.
However, all the six convicts can pay Thrim-thue in lieu of imprisonment since sentencing below 3 years (misdemeanor) is compoundable, as per the official from court.
However, four RICBL officials are also appealing to the High Court on basis that it was a genuine claim that had been settled and that key evidences and expert witness testimonies had been ignored.
DNT govt stands to lose a Minister, MP and Party Vice President rolled into one if trail court conviction is upheld
The Home Minister is also the Vice-President of DNT and its most senior minister.
Earlier, the DNT government, despite a recommendation from the ACC, had declined to ask Lyonpo to step down till the case is over.
The conviction of the Home Minister now raises the possibility of losing a Home minister if the High Court and on further appeal the Supreme Court upholds the trial court verdict.
The going looks tough for Lyonpo as a legal expert familiar with the case said that it is an ‘open and shut case’ with clear evidences.
Lyonpo stands to lose even his MP position as the National Assembly (NA) Act 2008 under section 14(c) says, “A member of the National Assembly shall be disqualified if the member: is convicted for any criminal offence and sentenced to imprisonment.”
However, stronger than the NA Act is the Constitution which under Article 23 titled Elections lays out how a sitting member of an elective office can be disqualified.
Article 23 section 4(c) says “A person shall be disqualified as a candidate or a member holding an elective office under this Constitution, if the person is convicted for any criminal offence and sentenced to imprisonment.”
In fact, the Supreme Court, in a 2015 judgment, disqualified the then sitting Kawang Gup and Thimphu Thrizin from his elected office after getting convicted in a case, based also on this Constitutional clause.
The Gyelpozhing case verdict of the Supreme Court also ensured that the Home Minister and Speaker of the DPT government could not contest in the 2013 elections as they were convicted in the case. A DPT candidate’s papers were also not accepted by the returning officer in 2013 as he had been convicted in a case before.
The insurance case of the current Home Minister had happened before the Minister joined politics.
However, DNT, before the 2018 polls, had opted to stick with him despite the case.
During the time of PDP the former Foreign Minister Rinzin Dorji was accused in the Lhakhang Karpo case which happened when he was the Haa Dzongda. He stepped down from his minister’s post to fight the case.
The Supreme Court eventually acquitted him on all charges in 2016. However, the PDP government still chose to not reinstate the minister.
The PDP government also asked the former Labour Minister to step down when the ACC was investigating the overseas employment case.
The former Labour Minister’s case was charged by the OAG to court recently with five charges to do with seeking and receiving benefits from an Indian Labour agent.
Lyonchhen Dr. Lotay Tshering shared that there is nothing much to comment for now. “We respect the district court’s decision but every citizen also has the right to appeal to higher courts. As law takes its own course, we will act accordingly,” Lyonchhen added.
