The Bhutanese Leading the way.
The 6th May press release of the Office of the Attorney General (OAG) said that there is a prima facie case of defamation (section 317) and libel (section 320) charges against Penjore, but at the same time it also included sedition under section 331 (9).
In the penal code section 331 (9) says ‘A defendant shall be guilty of the offence of sedition, if the defendant: Issues a scurrilous and malignant statement against His Majesty or the Royal Government with the intent to defame, disrupt, encourage contempt, or incite hatred of the people against Bhutan…”
The offence of sedition is a felony of the third degree with a minimum imprisonment of five years and a maximum of nine years.
Similarly, in its complaint to the Royal Bhutan Police (RBP) apart from defamation and libel (defamation via writing) it asked the RBP to investigate possible sedition in Penjore’s posts.
A RBP official familiar with the case said the OAG had given some print outs of Penjore’s posts as its evidence.
RBP did not find sedition
However, the RBP official said that during their investigation of Penjore, they did not find any element of sedition and only found defamation and libel.
The RBP investigation report detailing out the defamation and libel, but with no presence of sedition, was given to the OAG. The official said that this was a simple and straight case.
Normally the RBP prosecutes petty misdemeanor cases like defamation and libel on its own, but it pushed the ball into the OAG’s court by arguing that Penjore had been warned once by the court before in 2015 even though the charge is still petty misdemeanor.
However, on 9th June a news article in a local newspaper said that OAG is expected to charge Penjore to court next week after it got delayed this week due to the forensic examination of Penjore’s phone records and social media forums. It says Penjore is supposed to be charged for defamation, libel and sedition.
The Bhutanese tried several times to contact the OAG including calling up five OAG lawyers to get more details on the above article, but there was no response as the The Bhutanese has been effectively put under an information blacklist by the OAG with the AG himself blocking the mobile number of the reporter and making it clear he will not talk to the paper.
In the meantime, there is a degree of confusion in the RBP officials who investigated the case as their investigation report did not find any evidence of sedition against Penjore in his posts.
The article in the local paper also mentions that Penjore is accused of maligning not only the institution of the OAG but also the RBP.
Here again the RBP clarified that its investigation report did not talk about Penjore maligning RBP.
The Bhutanese News and Forum
The article quoting sources says that the OAG along with Penjore also plans to charge co-defendants who allegedly manage the social media platform The Bhutanese News and Forum.
It says eight experienced prosecutors of the OAG had reviewed the police investigation report and found that several individuals used The Bhutanese News and Forum to attack and malign institutions and individuals.
The article in the local paper says that that there are more individuals involved in supporting alleged ‘contemptuous, unfounded and unlawful attacks against the national, unity, security, and sovereignty of the country.’
The article says preliminary report reveals that the forum is operated and administered by a person in Thimphu and that the OAG prosecutors are yet to decide whom to charge for probable sedition.
Here again the RBP is clueless as its investigation report focused only on Penjore and his posts.
The RBP official explicitly said that they did not investigate The Bhutanese News and Forum, its administrator or others who post on the forum far from charging anyone with sedition.
The RBP official also clarified that the RBP did not find anything from the forensic examination of Penjore’s phone records.
The complaint to the RBP was also only from the OAG and it was not from the BNBL.
The RBP official said that it only found defamation and libel against Penjore in its investigation but it is up to the OAG to remove and add charges.
If what the article has reported is true, then the OAG is looking to expand the case beyond Penjore to other people including an entire social media platform The Bhutanese News and Forum.
This will have even more ramifications than just the Penjore case which already has a lot of implications on freedom of speech, freedom of media and social media, powers of OAG etc.
The forum should not be mistaken with the original Bhutanese Forum which had over 160,000 members and had changed its name to Our News and Forum and even Druk News and Forum before disappearing, in all probability because it kept violating Facebook’s community standards and allowed hate speech, racist posts and nude images on its forum. This forum was also accused of favoring a political party during the 2018 elections.
The current The Bhutanese News and Forum was created in 2017 and though it hosts all kinds of content with people free to post in the forum style with no editorial filter, it has not been as notorious as the original Bhutanese Forum.
OAG giving top priority to prosecute Penjore
Meanwhile, according to sources the OAG is according top priority to prosecuting the Penjore case.
The RBP investigation report was put through an eight-member screening corpus of senior lawyers. This corpus was instituted by the former AG and was used mainly for ACC cases or very important cases.
However, it almost became defunct after the former AG overruled the decision of the corpus to appeal the JPLP case in the Supreme Court.
It has been learnt that the ACC is assigning a team of five lawyers to prosecute the case backed up with a research team. Again this level of preparation and manpower was only deployed for ACC cases.
Experts say cannot charge without due process and investigation
A judiciary expert, on the condition of anonymity, said that if the OAG plans to charge more people beyond Penjore then due process dictates that a proper investigation has to be done by the police on those cases separately as the OAG cannot charge other people without an investigation.
He said that the OAG cannot be the judge, jury and executioner as charges have to be framed based on the investigation.
The judiciary expert also said that the OAG cannot frame sedition charges against Penjore when the RBP as the investigating agency has not found sedition.
He said that the OAG is only a prosecuting body and it is not an investigation body.
He reminded that the duty of the OAG is to actually defend the rule of law but right now it is behaving like a loose cannon.
A legal expert, who is a lawyer, but did not want to be named said that OAG is now heading into a dangerous area.
He said even if the OAG has an issue with posts in the The Bhutanese News and Forum it can use the provisions in the ICM Act to contact the administrator and ask them to take down a defamatory post and if the administrator denies it then only action can follow.
The legal expert said that for prosecution there actually first has to be complaint by the affected people, then an investigation must happen and only after that a charge sheet is done where the OAG comes in.
Currently BICMA is the Media Arbitrator of the ongoing bye elections in Mongar and Nanglam.
Here a senior BICMA official said that when there is objectionable content on Facebook they first try and contact the person who posted it to remove it but if the account is anonymous then they approach the forum administrator to remove it and even if that does not work then BICMA through the ECB and DITT get in touch with Facebook in Delhi and report the post.
Facebook does its own evaluation and if it finds that the post violates its standards then it removes the post.
Meanwhile, Penjore said that he has not committed any sedition through his posts as he had not written anything against the Tsa-Wa-Sum, the nation or the national interest.
He asked who would be held for accusing him of sedition when he did not commit any sedition.
Penjore said that the government and the Prime Minister can no longer sit on the fence with such developments when he has hire and fire powers over the AG.
