The Thimphu District Court recently gave its verdict on the Anti Corruption Commission (ACC) case against the former Minister of Labour and Human Resources (MoLHR) Ngeema Sangay Tshempo, the former Director General Sherab Tenzin and five others.
Of the total seven accused in the cases four were acquitted while of the total 16 charges against the seven accused 13 charges were acquitted by the court mainly for lack of adequate evidence.
DG and Group
With regards to the former DG of the Department of Employment and Human Resources (DoEHR) Sherab Tenzin, the Office of the Attorney General (OAG) had four charges against him of which he was acquitted on three charges and convicted for one.
The DG was convicted for Omission amounting to an abuse of functions under the ACC Act section 59(1).
This is because in spite of the Bhutan Employment Overseas (BEO) agency not having the required documents to register the DoEHR sent a recommendation to the Ministry of Economic Affairs to issue it a license. The agency was also given a registration.
The BEO had not produced documents to show it has business affiliation with the principle employer abroad, and it did not have a notarized contract agreement between BEO and the principal employer.
The former DG tried to pin the blame solely on Ugyen Tashi the then assistant program officer of MoLHR for the above, but the court pointed out that this is a function of a Department and not a single officer.
The former DG was sentenced for two years for misdemeanor, but he can pay Thrimthue.
The BEO owner and an associate has been convicted over the Learn and Earn Program in Japan after complaints filed by parents and an investigation by the RBP in a separate case.
Of the four charges dropped against the DG one was to do with failure to declare a conflict of interest as per ACC Act section 63(1).
Here the DG was on the tender committee that awarded projects to an Indian overseas training provider Manav Dhingra who headed the International Institute of Wellness Studies (IIWS) based in Noida.
The ACC investigation had said that DG Sherab Tenzin, in order to set up his son’s toilet paper business Jana toilet paper in Bhutan, sought financial assistance to the tune of over Rs. 589,000 from Manav to buy the machine.
The judgment said that section 63(1) has to show that Sherab Tenzin benefitted and Manav Dhingra is his associate. However, there is no evidence for the association part as Manav does not have shares in the business, there is no business contract and there has been no sharing of profit.
Manav Dhingra in his confession to the ACC had admitted that he was a business partner in the venture, but he changed his statement in court saying he was coerced and are not partners.
The money given was thus like a transaction for which Manav would be repaid.
The court in its interpretation acquitted the DG here.
Another factor that played here and in all acquittals is the high bar set by the courts for evidences in a criminal case as the court went by the judicial practice of ‘prove beyond a reasonable doubt’, and giving the ‘benefit of doubt’ to defendants when evidences are not clear.
The DG was acquitted of deceptive practice. Here the OAG said the former DG recommended his son’s business for a license to the MoEA even though Manav was a secret partner. OAG accused him of deceiving the MoEA. But the judgment did not accept this as Manav had gone back on his confession of being a partner and there was no documentary proof.
Similarly, the DG was also acquitted of official misconduct in the same matter as there was no proof that his son and Manav were business partners.
The former DG’s son Kelzang Ninda was also acquitted of deceptive practices on the same ground as his father.
In the case of Ugyen Tashi he was convicted of Omission amounting to an abuse of functions under the ACC Act section 59(1) like the former DG in the same case of missing documents of BEO.
Ugyen was sentenced for two years for misdemeanor but he can pay Thrimthue.
Lyonpo and Group
While the DG’s case had to do with the toilet paper business and the BEO, a separate case was also investigated by the ACC at the same time over business ties and gifts between the former MoLHR Minister Ngeema Sangay Tshempo and Manav Dhingra.
Of the 6 charges against the former minister the court acquitted him in five and convicted him on one charge.
He was convicted over ‘False declaration with the view to conceal’ under the ACC Act section 64(1) as he failed to declare the excavator and the hiring agency run by his wife and him in the 2017 annual declaration to the ACC.
The hiring agency and the excavator was in the name of the minister’s niece Pema Tshomo Sherpa with Dilu Giri as a partner.
The former minister was convicted here on three grounds. The first is that in the Dzongkhag version of the ACC Act the minister has to declare the assets of himself, his wife and dependents.
The judgment said that since it was proven that the niece was a dependent of the minister and stayed with the family the minister has failed to declare her assets.
Secondly, the idea for the hiring agency had come from the former minister and he and his wife Namgay Lhamo had helped with the loan from BoB and they were running the business even when the niece went to Japan.
Namgay Lhamo had been given a power of attorney when the niece went to Japan.
It was also seen that the niece would take screen shots of any bank information and send it to the minister’s wife Namgay Lhamo showing that the niece was not the real owner.
Thirdly, the minister’s wife used the terminology ‘we’ on buying the excavator in her statement to the ACC.
The former minister was sentenced for two years for misdemeanor but he can pay Thrimthue.
He was acquitted for two deceptive practice charges. The first was of deceiving the MoEA while getting the license as the real owner of the agency was him and his wife and not the niece.
Here the court dropped the charge on the grounds that the MoEA has its own requirements and does its checks and it is also common for a father or son to get a license but another family member sitting in the shop or business.
The second was of deceiving the BoB bank while taking the loan as to the real owner of the agency, but here again the court said that the banks gave the loan after following all due process.
The former minister was acquitted of official misconduct as it could not be proven that Manav Dhingra using Dilu Giri as a front was a secret business partner of the former minister and his wife in the hiring agency.
There was also no evidence no show that the former minister took any decision that favored or benefited Manav or deviated from official norms.
The former minister was also cleared for two charges of larceny by deception for taking gemstone (Yellow Sapphire) worth Rs. 85,000 and Rudraksh rosary worth Rs. 71,983 from Manav.
Here the court said this is more a civil case between two parties, there is no time limit by which the former minister has to pay for the items and Manav has not complained.
Pema Tshomo Sherpa had been charged with two counts of deceptive practices for getting the license and the loan when she was not the real owner, but here she was acquitted on the same grounds as the former minister.
Dilu Giri was charged with deceptive practice as being the front partner for Manav in the hiring company, but here again he was acquitted as the OAG did not have evidence to prove the charge.
Namgay Lhamo was charged with deceptive practice in terms of the license from MoEA, but was again acquitted on the same grounds as the former minister.
What seems to have hampered OAG’s prosecution in the court is its main witness Manav Dhingra saying his confessions were obtained under duress and going back on them, and in the absence of this the court did not find adequate documentary evidences to back up the charges.
The high evidence standards placed by courts in criminal cases also did not help OAG.
It is not clear if the OAG will appeal or how ACC has reacted given that both agencies were not available for comments.