The Thimphu District Court’s conviction of the current Home Minister Lyonpo Dasho Sherub Gyeltshen today for two months for claiming vehicle insurance worth Nu 226,546 fraudulently means the minister will have to vacate his office, unless he appeals to the High Court.
This is because an elected official convicted of a criminal offense cannot hold elected office or take part in elections.
The Minister was charged for petty misdemeanor but it is still a criminal conviction since the ACC investigated the case and the OAG charged it in court.
This may mean a by-election in Lyonpo’s constituency if the minister does not appeal or if the High Court and Supreme Court uphold the District Court judgment.
The going does not look good for the Minister as a legal expert familiar with the case said that it is an ‘open and shut case’ with clear evidences.
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.
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.
The Home Minister has decided to appeal the case to the High Court which, as pointed above, means he can retain his post unless the judgement is upheld by the High Court and on appeal the Supreme Court.