The Bhutanese Leading the way.
Dasho Benji’s counsel lawyer Younten Dorji informed the court on Thursday that his client would not be apologizing to the Druk Phuensum Tshogpa (DPT) party. The DPT earlier had offered to withdraw the case if Dasho Benji tendered a public apology to DPT.
Criticizing DPT’s 26 page rebuttal the lawyer said, “The most omniscient plaintiff of all has wholly misplaced its 26-page response that desperately screams in want of real legal arguments and cogent reasoning to sustain its own allegation that it audaciously filed before this Honorable Court. Highly charged of its classic taste for cynicism, irony and self-righteousness, the plaintiff has forgotten that the court of law is not a public forum for political rhetoric and sophistry but a sacred temple to determine truth to render justice on contested issues by litigants.”
He said, “In the same cogency, a court of law is also not a proper place to demand for an apology.”
The lawyer said that the ‘apology’ DPT desperately sought from the defendant not only undermines civil rights but it also grossly tantamount to intimidating ‘the very soul of the fundamental rights guaranteed by the Constitution’.
The lawyers also said that from the view point of DPT any person criticizing DPT is its enemy, automatically presumed belonging to the other political party and is hell bent on wrenching on him/her with unruly measures to terrorize the rest in the other camps.
“If the defendant, a well known senior citizen and a dedicated public servant of the King and the people, succumbs to such high-handedness of a political party, there will be no end to DPT’s habitual ventures of terrorizing our individual citizens hereafter,” said the lawyer.
“The humble defendant, notwithstanding the present allegation of the plaintiff (DPT), maintains that he is innocent of the alleged offence and shall not apologize out of fear at any cost. This is a rallying call for our brother citizens to remain un-fearful of DPT or any other political party that attempts to govern us by heavy-handed,” added the lawyer.
The defendant, as argued under Part II of his earlier submission maintained that no government agency, political parties or a group can maintain its locus standi in bringing an action for defamation in the like manner of a natural person.
The defendant said that DPT’s claim of a, “legal person” wrongfully argues for equality before law under Section 15 of Article 7 of the Constitution.
He said, “Besides being far flung from the legal rights and duties of a natural person, the legal standing of a political party cannot equate to a natural person or to a body incorporated for business ventures under the Companies Act. By its very nature and purpose, a political party is an electoral agent under the Election Act and is subject to public criticism from the day one and has the duty to remain open to criticism from its public members.”
“A political party may have recourse to law for the protection of other rights like breach of contract etc., but the voters have the inherent right to criticize a political party and it is impractical and impossible for the law to prevent such criticism either,” he added.
The lawyer said that the application of Article 7 of our Constitution that provides for “equality before law” must be accorded with the greatest wisdom so as not to defeat its own democratic objectives and intents.
Giving the example of when the state passes law to provide extra privileges to women, children or disabled persons, he said such privileges cannot be challenged as unconstitutional by able persons on the grounds of discrimination because it is not a negation of equality in reality but, in fact, a call to uplift them to equal footing with greater public welfare policy.
“In the alike reasoning, a political party is an impersonal body bound to be criticized and it being barred from bringing defamation action in the interest of free speech do not tantamount to negation of equality before law: it rather enlightens to maintain an uninhibited flow of free speech amongst its citizens for their own collective good. Hence, the appropriate platform for a political party to redress criticisms is to address public members on the democratic public platform and not clamor in a court house,” argued the lawyer.
He pointed out that the democratic circumstances in the present case, therefore, is in want of a court ruling to settle the issue for the larger good of the public as to whether a government or a political party can maintain defamation suit against an individual person for exercising his/her fundamental rights and criticizing such government or a political party.
The lawyer said that the due process of executing “bha” before a court of law, is enshrined under Section 91 of the Civil and Criminal Procedure Code, 2001 (CCPC).
“Further, if the conscience of DPT is clear, it has no reason to harbor the slightest reluctance to execute the duly pending bha,” said the lawyer.
The lawyer said, “Unless the plaintiff chooses to admit before the honorable court in express terms the truths of the following facts, the defendant once again would like to request Your Honorable Court for the execution of “bah” with the plaintiff, as per Section 91 of CCPC, on the same terms as submitted before to prove the following commissions by the plaintiff.”
That DPT has usurped the sacred Royal Prerogatives of the Monarch during its ruling tenure. That DPT is a seditious political party that has totally undermined the nation’s peace, harmony and unity. That DPT has undermined the Kingdom’s sovereign and independent status by its irresponsible taking of unsustainable debts that frustrates the continuity of development for future generations and the country’s economy continue to suffer because of that irresponsible governance.
That DPT is a corrupt political party and had abused its powers and authorities by discriminately favoring its few supporters with economic opportunities to the adverse interest of fair and just governance, during its tenure as ruling party;
That DPT has undermined the rule of law and had contravened many provisions of law to suit its vested interest to the adverse interest of the Kingdom’s unity and justice.
That the cabinet members of DPT had, during its ruling tenure, availed perks and privileges and even sent people on medical treatment abroad at the cost of the public resource unlawfully;
At the end of its ruling tenure, the DPT cabinet members had taken home even the office equipments, like laptop, that were issued for their official use and which are to be retained in their respective offices as accountable public properties; and,
“Your Honor, the above facts are all interrelated and integral part of the whole to be proven by the defendant, as compelled by the stern demand of the plaintiff, that the plaintiff had, thoroughly and deceitfully in an unusual manner, robbed the nation blind during its tenure,” said the lawyer.
The defendant also asked for the court to issue the following court orders.
That the plaintiff be ordered to admit the facts of having committed the acts cited above and, if not, be compelled to execute bah on the same terms as submitted in the defendant’s previous submission which is for Nu 75 mn. However, if the plaintiff neither executes bah nor admits the commission of the cited acts, then the plaintiff be found guilty of those commissions and be held accordingly liable as per applicable penal provisions and other due process of law in force;
An appropriate ruling be issued to settle the issue of whether a ruling government or a political party can sustain a defamatory suit against an individual for exercising fundamental rights guaranteed by the Constitution of the Kingdom.
DPT be ordered to prove as to how did the defendant’s online comment came to being “inflammatory, partisan and divisive” and “undermining the unity, harmony, peace and prosperity of our nation” and for “creating divisions and disharmony among our people” failing which an appropriate compensation be ordered in favor of the defendant for the false and wrongful allegations;
DPT be ordered to prove the fact of its material suffering from a direct or approximate injury resultant to the casual online comment of the defendant failing which the present suit be declared as cantankerous litigation.
The plaintiff be ordered to submit to the honorable court the list of its party executive members, both before and after 19th of July 2013.
DPT be ordered to produce before the court the Public Document prepared by McKinsey.
The Ministry of Finance be ordered to submit the specifics of expenditures incurred by the government on the perks and privileges enjoyed by the DPT cabinet members during its ruling tenure, the expenditure incurred by sending its people on medical treatment abroad, the loss incurred on lottery scams, the extra cost incurred for the Denchi land compensation, and the likely compensation the government may have to pay for closing down the Education City Project due to unlawful lease contracted by the plaintiff government. Any loss or cost incurred due to misuse use or illegality of actions taken by the plaintiff government be ordered to be fully restituted respectively.
The Ministry of Finance be ordered to reveal to the Honorable Court how many duty free quotas were used, imported and then sold to whom for what prices by Ministers of the plaintiff party during its ruling tenure;
The defendant be permitted to avail opportunities to make further submissions or request for court orders to summon relevant evidences and witnesses as the situation may require in the proceedings of the present suit; and,
