The Bhutanese Leading the way.
The Attorney General Lungten Dubgyur’s resignation letter submitted to the Prime Minister Dasho Dr Lotay Tshering on 8 August 2023 has not been accepted and instead an Enquiry Committee has been set up to investigate if the AG breached his Code of Conduct as per the OAG Act 2015.
If found guilty, the AG could end up being removed instead of resigning which means he will not be eligible for his benefits.
The AG will be given a hearing to share his defense as well.
The Enquiry Committee has been set up under Article 94 of the OAG Act 2015 on the removal of the AG and it says, “The removal shall be only upon finding by a Committee constituted for the purpose of determining permanent incapacity or incapability of carrying out his or her duties or breach of code of conduct, substantially prejudicing the interest of the Office. The Attorney General shall be given a proper hearing.”
The Committee was set up by the Prime Minister on 24 August 2023 and it has been given 10 working days to come up with a recommendation after conducting its investigation and review.
A letter from the PMO was also sent to the AG on 24 August 2023 informing him of the Committee and asking him to stay away from office when the committee is doing its work.
The AG is learnt to have appointed an acting AG in his stead and taken leave.
Earlier, the Attorney General had put up his resignation letter a few days after the PM asked for an explanation over a Supreme Court press release suspending two High Court Justices Pema Rinzin and Tshering Dorji of Bench I over deliberate miscarriage of justice in a drug trafficking case verdict.
The release also mentioned how the AG took an overnight trek to Phajoding with High Court Justice Pema Rinzin and the Kuensel Dzongkha Editor when the case was sub judice and one of the case defendants was the Editor’s son.
The AG in his resignation letter to the Prime Minister took moral responsibility for his trip to Phajoding.
The AG initially left his office, however, given that he has to give a one-month notice he was back in his office again but without taking any major decisions. The enquiry committee will now decide the final action.
So far the investigation by the Judiciary and the action has only been against the two Justices, but in the course of the investigation some evidence has come forward against the AG himself.
After a complaint alleging collusion had been filed against the High Court judgment overturning the district court conviction in the drug trafficking case a committee of the High Court Chief Justice, Supreme Court Registrar General and High Court Registrar General looked into the legitimacy of the complaint and based on the committee’s report, the Supreme Court issued a direction to the High Court ordering a review of the case, in the interest of justice and upholding the Rule of Law.
A Special Bench at the High Court, after a thorough review, found that Bench I had indeed caused a grave miscarriage of justice.
It has been learned that when the Special Bench of the High Court was reviewing the drug case judgment of the High Court, the AG messaged a lawyer who is the Personal Secretary of the President of the Bhutan National Legal Institute (BNLI) with a message asking for the lawyer to interfere in the review judgment of the Special Bench and to get it dropped.
BNLI and the lawyer declined to cooperate with the message sent at odd hours and the lawyer submitted the messages to the Supreme Court Chief Justice.
After the High Court Special Bench passed its judgment overturning the High Court judgment the AG again through messaging contacted a Justice of the special bench asking why did the Justice do this and asked who directed the Justice etc.
A source said that messages by the AG were an attempt to influence the review and in blatant violation of the code of conduct of the AG.
The AG is not supposed to interfere in Judicial proceedings like this.
The matter is even more serious taking into account the fact that the AG is a member of the four–member National Judicial Commission (NJC) that selects the Chief Justice of the Supreme Court, Justices of the Supreme Court, Chief Justice and Justices of the High Court.
The NJC can also recommend for the suspension of Supreme Court and High Court Justices and set up new Courts and Tribunals.
The other three members of the NJC are the Chief Justice of the Supreme Court, the senior most Justice of the Supreme Court and the Chairperson of the Legislative Committee of the National Assembly.
The fact that the AG is a member of the body that decides the future career of High Court Justices and even Supreme Court Justices shows an attempt was made to use his position to influence an outcome of the review.
The messages sent by the AG also worsened the case against the two high court justices as it showed proof beyond reasonable doubt that there was a link between the two justices and the AG.
The messages also showed the involvement of the AG.
The Code of Conduct for the AG in the OAG bills lists down Responsibility, Honesty, Fairness and Diligence, Integrity, Selflessness, Transparency and Personal Conduct like Refraining from indulging in habits and behavior that infringe upon the performance of official duties or tarnish the image of the Office and be liable for unlawful and improper behavior or the non-performance of his or her duties.
Section 88 says, ‘The Attorney General shall ensure that no conflict of interest arises, or appears to arise between his or her official duties and his or her private interests, financial or otherwise. A conflict of interest may exist when the Attorney General is influenced or appears to be influenced by private interests.’
Section 89 says the Attorney General shall not appear, advise or represent any party against the Government.
Section 90 says the Attorney General shall not abuse the powers bestowed upon him or her.
A letter from the Chief Justice to the PM informing him of the case and the findings asked the PM to take ‘appropriate action,’ against the AG.
The OAG has a corpus or committee that decides whether cases should be appealed to higher courts or not. The internal rule in this so far is that generally any case which has different judgments by two courts should be appealed. Reliable sources told this paper that when it came to this case, it did not come before the OAG corpus, and in fact, the AG had given instructions that the High Court verdict should not be appealed.
In 2019 when the case was first prosecuted in the Thimphu District Court, the AG was Shera Lhendup and later when it was prosecuted in the High Court, the AG was the current AG Lungten Dubgyur.
2 Justices
Meanwhile, it has also been learnt that the two High Court Justices Pema Rinzin and Tshering Dorji of Bench I who were suspended for six months are not getting any salary as the investigation has proved their fault beyond any reasonable doubt.
Normally, people in administrative suspension get around 50 percent of the pay.
In the case of the two Justices, unlike the AG, an investigation has already been done and they were found guilty.
The Supreme Court has already said what will happen after the 6 months’ suspension is not decided, which means reinstatement is not certain.
A source said, “At an appropriate time, more specific actions will follow, as per due process which will be transparent as always. At this juncture the judiciary cannot take the next step, because it might preempt the proceedings already expected from the relevant executive arm of the state.”
According to another source, it will be unlikely for the justices to be reinstated since their involvement in a case proving a deliberate miscarriage of justice in a drug smuggling and possession case is proven.
It is thus likely they will not be accepted back and the only way ahead for them is resignation or to face an impeachment process in the Parliament.
Meanwhile it has been learnt that the Kuensel Dzongkha Editor recently submitted his resignation to the company and it was accepted.
