With the Druk Phuensum Tshogpa (DPT) not appealing the Dasho Benji case verdict the Office of the Attorney General (OAG) will now be following due legal process, as outlined for it by the District Court order, which directed the OAG to coordinate the sedition investigation.
The District Court in its verdict had said that there is a prima facie case of sedition against the DPT, and accordingly ordered the OAG to coordinate an investigation into it.
A senior OAG attorney, who did not want to be named said, “The court judgment has ‘ordered’ the OAG to direct and coordinate with the investigative agencies, which means the OAG has to ask the Royal Bhutan Police to investigate the issue who in turn has to get back with a report.”
The attorney, however, clarified that as per the law the OAG is not an investigative agency, and so the investigation would be done entirely by the RBP as the competent authority.
The RBP Police Chief in an earlier interview also made it clear that only RBP would investigate the matter after it gets the court verdict asking them to do so formally from the OAG.
The attorney said that RBP is expected to gather the evidence and information to tell the OAG if there is a case, only after which the OAG’s role comes into play while looking at the legal charges which are applicable or not.
He said that the RBP is the competent authority since sedition is a penal code matter and not handled by the Anti Corruption Commission which looks after corruption and the Royal Audit Authority which looks after financial issues.
However, the court order has not specified a timeline by which the OAG has to forward the matter to the RBP.
The attorney said, “In the national interest and for our democratic relevance each and every case must be treated alike under the same due process of law including this case.”
“If rule of law is to continue its prevalence the application of law must be consistent and as per established due process,” added the attorney.
While there maybe agreement on due process a separate issue has cropped up on whether the party or the individuals who made the statements would be held accountable if sedition is established.
The court in its verdict in the beginning while addressing the sedition issue says, “There is a prima facie case of sedition against the DPT.”
Lower down, the court verdict also says, “It is the opinion of this court that the individuals who made the scurrilous, sacrilegious and treasonous speeches at the meeting are not only guilty….but have also violated the laws of sedition and treason.”
It is this second statement that some are interpreting to mean that only individuals would be charged if they are guilty.
A member of the Judiciary who is familiar with the case said that ultimately it will depend on the outcome of the investigation in terms of what is found and who is charged. The member said that, at the same time, under the law, a political party is a legal entity or legal person after being registered with the Election Commission of Bhutan and so it has legal accountability.
According to commonly accepted international legal practices a legal person has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person.
During the DPT Vs Dasho Benji case the DPT had argued that it is a legal entity or legal person and so like any legal person it has the right to sue to defend its reputation. Dasho Benji’s counsel while accepting that DPT is a legal person said it cannot be used to sue others when it came to defamatory issues as a party has to be open to criticism from the public.
A legal practitioner familiar with the case said, “If sedition is established, it does not mean that every party member and follower present that day will be prosecuted as they could be just ‘ignorant followers’ who had no idea what would happen.”
He said that instead the speakers, the ‘ringleaders’ or main organizers of the event and the party as a legal person for giving the platform through its convention meeting could be held accountable.
The legal practitioner said that the investigating agency would have to look at the content of the speeches, who organized the event, who incited the crowd, why no efforts were made to stop the speakers, etc.
He pointed out there is international law and instances where organizations like political parties have been held accountable as a legal person.
“The argument made by some that a political party in an event organized by the party is not accountable for what its members spoke or did is not based on settled legal principle,” said the legal practitioner.
According to the legal practitioner, while the accountability for the party cannot be wished away, who exactly is accountable from within the party would depend a lot on the investigation.
If the sedition charge is upheld and proven against DPT, then it could mean the dissolution of DPT.
The Supreme Court, based on Article 15 section 11 of the Constitution, under the correct legal circumstances could dissolve DPT as a political party if its objectives or activities are against the Constitution.
Article 15 section 11 sub-section (a) says, “A political party shall be dissolved only by declaration of the Supreme Court: If the objectives or activities of the party are in contravention of the provisions of this Constitution.”
The district court in its verdict observed that sedition was against Article 2 of the Constitution which deals with the Monarchy.
However, these are early days for the case and the ultimate legal outcome would depend on the investigation findings, legal charges applicable and also the legal interpretation by the courts.