The 2008 judgment of the Thimphu High Court in the defamation case involving the former Director of Revenue and Customs, Sangay Zam, Finance Minster, Lyonpo Wangdi Norbu, and Lyonpo Yeshey Zimba, on the one hand, and the former authorised agent of PlayWin online lottery, Sangay Dorji, raises some interesting questions about the manner in which reputational interests of individuals are protected under Bhutanese law.
The case, which arose out of comments made by Sangay Dorji at a workshop on “Review of Anti-Corruption Strategies” conducted by the Anti Corruption Commission of Bhutan in August 2007, was first filed in the Thimphu District Court by the Office of the Attorney General (OAG) which reportedly acted at the behest of the three complainants.
The District Court delivered a judgment in July 2008 in which it dismissed the case and laid down certain principles to be followed in defamation suits. The case was then taken in appeal to the High Court by the OAG. A Full Bench of the High Court heard arguments from both sides and delivered the abovementioned judgment on 30 December 2008 which effectively affirmed the verdict of the District Court, holding it to be “fair and reasonable enough”.
Bhutanese law does, like its counterparts in other South Asian countries, allow for both civil and criminal liability to attach to defamatory statements. Indeed, the Sangay Dorji case involved the use of criminal law, i.e. Section 317 of the Bhutan Penal Code which says that: “A defendant shall be guilty of the offence of defamation if the defendant intentionally causes damage to the reputation of another person or a legal person by communicating false or distorted information about the person’s action, motive, character or reputation.”
What is striking about the Sangay Dorji case is that the courts – at both District and High Court levels – have thought fit to go beyond the standard requirements applicable in most Anglo-Saxon countries and introduced two further elements to be established by the prosecution before they can procure a conviction, namely: 1. that, if the person aggrieved by the alleged defamation (the complainant) is a public figure, the prosecutor must prove that the person or persons responsible for the defamation (the accused) acted with actual malice; and 2. that prosecutor must further prove that the accused knew that the statement in question was false when he made it.
While the first stipulation has some precedents to support it the second is somewhat unique, at least in the common law world. It imposes a higher than normal burden on the part of the prosecution and therefore makes successful prosecutions much more difficult.
However, it would be lauded by those free speech campaigners who have, over the years, argued that the traditional approach of requiring the defendant to prove the truth of the alleged defamatory statement was unfair and out of line with the normal rules of burden of proof in criminal cases.
Although the judgments in the Sangay Dorji case do not elaborate on the concept of ‘public figure’, they do make it clear that this concept is “broader than celebrities and politicians”. Accordingly, they have concluded that Mrs Sangay Zam, the then Director of Revenue and Customs (who was one of the complainants in this case), was – despite being neither a celebrity nor a politician – a public figure. How the concept of ‘public figure’ is developed in the future by the Bhutanese courts will be important, because that will determine the outcome of many defamation cases.
Another noteworthy aspect of the judgments is that the District Court has attempted to signal its preference for reduced protection for the reputation of public officials as a group compared to other citizens. “The jurisprudence adopted by the Bhutanese court,” it says, “is clear that public officials enjoy lesser protection of their reputation since they are routinely exposed to public opinion because of their public profile.” This may be seen as a welcome development from the point of view of freedom of speech in a democracy, because it echoes the liberalising trend evident in a number other countries in this regard.
As far back as 1993 the House of Lords in London expressed the view that if public bodies were allowed to sue for defamation, they might misuse that power to stifle legitimate criticism of their activities.
This, said the court, would have a “chilling effect” on free speech. In the words of one of the judges, it would be “a serious interference . . . if the wealth of the State, derived from the State’s subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.”
In England, it is now not possible for local authorities, government-run corporations and political parties to sue for defamation. This principle has also been accepted by the Supreme Court of India.
The Thimphu District Court has been equally vigorous in its affirmation of this principle. It has said that “in a modern democratic society, constructive criticism by any individual citizen against the government should be accepted as a necessary evil for effective governance. It is only the freedom of expression and thought that would translate the true meaning of democracy [sic].”
The role of the Attorney General
One of the particularly controversial aspects of the Sangay Dorji case appears to be the involvement of the Office of the Attorney General in launching the prosecution – and the subsequent appeal – which led to the two court judgments. The OAG is reported to have acted on the basis of a directive issued by the Cabinet Secretary, but this came in for some criticism by the courts. The judges noted that, although the Attorney-General has a “special responsibility to be a guardian of rule of law, which include guardian [sic] of the public interest,” his responsibility for individual criminal prosecutions “must be undertaken on strictly objective and legal criteria, free of any political considerations and independent of the traditional cabinet decision. Any deviation would lead to dysfunction of the democratic process and will be becoming more pronounce [sic] in the near future. No prosecution of this nature may be initiated in the court at the cost of the public purse.”
The High Court reportedly endorsed this view and suggested that “[s]uch cases should not be represented by the OAG and left to the aggrieved individual.”
The basis for this finding was that the alleged defamatory statement did not materially affect the reputation of the Revenue and Customs Department of which the aggrieved person, Mrs Sangay Zam, was at the relevant time the Secretary.
Quite clearly, this is a matter which deserves serious consideration. Where public expenditure is involved, it is important that the highest standards of probity are adhered to. For this reason, it would be desirable if proper norms and guidelines are framed about the extent, and the manner of exercise of, the Attorney-General’s discretion in such matters. These norms and guidelines should have regard not only to the peculiar needs of Bhutanese society but also to best practices in other democracies.
By Venkat Iyer
The writer is a senior lecturer in the school of law, University of Ulster. The article was first published in the Journal of Bhutan Studies in 2008.