For many citizens the now dismissed Penjore case was a test case about the freedom of speech, powers of the OAG and even basic fundamental rights of citizens.
The Attorney General (AG) is accountable to the Prime Minister under Chapter 4 section 63 of the OAG Act, it is the Prime Minister who can nominate and remove the AG and the Office of the Attorney General (OAG) is the legal arm of the government.
However, the Prime Minister, early on, had washed his hands off the case saying the OAG does not need his permission.
This effectively allowed the OAG to charge Penjore for sedition for his facebook posts even when the RBP investigation did not find any sedition in its investigation of Penjore.
While the OAG only charged Penjore for sedition the OAG charge sheet mentioned The Bhutanese paper by name in the charge sheet saying that Penjore had made seditious comments against the RBP in the paper while talking about his time behind bars.
However, no senior RBP official that the paper contacted found anything seditious in Penjore’s comments to the paper.
The sedition charge against Penjore which attracts a minimum of five and a maximum of nine years’ imprisonment and the surprise but deliberate naming of the paper in the charge sheet was a deliberate attempt to intimidate by the OAG which failed in the court of law.
Implications of the court’s dismissal
The Bench 1 of the Thimphu District court dismissed the OAG’s case on four grounds saying OAG and the State cannot be treated at the equivalent level; if the court proceedings are initiated in this case then it will set a bad precedent for the due process of law; there was no allegation or complaint by the judiciary; and the case was about defamation but now it had turned into a sedition case.
The grounds of the dismissal are not only critical of the OAG but also show the failure of the government particularly when the court observes that the OAG and the State cannot be treated at the equivalent level and that if court proceedings are initiated in this case then it will set a bad precedent for the due process of law.
The court in its dismissal also answers some of the key questions on the limit of OAG’s powers and and its relationship to the state and government.
PM’s Press meet claims
However, the Prime Minister Dasho (Dr) Lotay Tshering in the monthly meet-the-press tried to spin what was a major set back for the legal arm of the government into a feather on the government’s cap by saying, “This unconditional and absolute non interference of me and my govt in the OAG’s affairs probably is the biggest contribution we are making to democracy.”
The reporter in his question reminded the PM of his earlier statement to the paper when he said that ‘if the court does not accept the case then it is a big lesson for the nation and for future AGs’ and now asked for his views after the court dismissed the case on the above grounds. The reporter also said this is in the backdrop of the OAG Act itself saying the AG is accountable to the PM and he is nominated and removed by him.
Earlier, throughout the Penjore case, this paper consistently had asked the PM about how the OAG can prosecute a case without any agency sending the case to it or without approval from the government and the impact of the case on freedom of speech. The reporter had also asked the PM about the government’s accountability in the case given that the OAG is accountable to the PM.
However, the PM in his meet-the-press reply over Zoom attempted to give the impression that his being questioned on the case was an effort to make him politically interfere in the OAG’s Penjore case and him not doing so is good for democracy.
The PM’s inference is wrong as the reporter had asked the questions in the past based on provisions of the OAG Act over the AG’s accountability to the PM and also fundamental rights to freedom of speech under Fundamental rights.
Lyonchhen said that he had long telephonic conversations with the reporter and he has not changed his stance on the issue.
The PM said that there are three parties in the case which are the OAG and AG, the PMO and the PM as in the government and the Judiciary.
Lyonchhen said that the reporter asked him that since the AG is appointed by the PM and is accountable to the PM, how can the PM allow this without his approval and if yes then why did he give approval. The PM said he was also asked by the reporter what happens if the court does not accept the case and what happens if the court accepts it.
Lyonchhen called on the Zoom press meet participants to read the read the reporter’s questions in great detail and also understand what is ‘in between the lines’. He said these were, “Juicy and tempting questions as either way I am being pulled into the big hole that is being dug.”
He followed up this insinuation against the reporter and paper with another line saying, “In democracy when you practice democracy the way it is supposed to be practiced people fail to understand that specialty.”
‘I have to bear the consequences’
The PM said that for him to nominate a candidate to cabinet colleagues and to nominate it to His Majesty The King, to him, is totally different.
He said, “I have to bear all the consequences, I have to bear the highest level of morality on submitting a nomination to His Majesty’s desk, to the Golden Throne.”
Lyonchhen said that is no easy nomination and since it is appointed by His Majesty his removal is is not easy as mentioned by the reporter (in the context of the PM’s nomination and removal powers over the AG). The PM said that the appointment and removal of the AG of the country is a national issue.
The PM said, “I cannot appoint anyone as AG and after the appointment if I am not happy personally or otherwise, without following due process I don’t think I can or will remove him.”
On the case the PM said there was nothing for him to say as the court has decided to dismiss it.
A change in tune
In the first story of this paper on the Penjore case on 15th May 2021 when asked about the case the Prime Minister had said, ““If he (AG) is proven wrong in the courts then he will have to deal with the consequences himself.”
The PM had also said if the court accepts the case and gives a judgment then it will be a big lesson for every Bhutanese, and if not then it will be a big lesson for the nation and for the future AGs.
In the same article when asked why the PM was not doing more given that he has hire and fire powers over the AG showing that the AG is accountable to him for such actions, the PM had said that hiring the AG is not easy.
He said in terms of firing the issue will only come up if what the AG has done has damaged the country which the PM said is not the case.
“If the court says certain legal sections have been violated by the AG then only such a matter will be taken up at that time and it is premeditated to talk about it now,” said the PM.
However, though the OAG tried to file a sedition case despite the RBP not finding any sedition and the court dismissing the case along with some critical observations the PM has nothing critical to say about the OAG now.
Larger scheme of democracy
Lyonchhen said that he does not know if the reporter or other media experts agree with him or not on his stance but what he is doing is not interfering in the initiatives and activities of the AG office.
“A politically elected govt who has nominated the AG is not interfering in the OAG activities. Please try to recollect this in a bigger scheme of democracy,” said the PM.
He said that he should be critically questioned by the media if he questioned the AG saying not to charge Penjore and to dismiss the case. He said he would be asking for trouble in such a case and he would deserve to be asked multiple questions.
Lyonchhen said that with a lot of understanding of democracy and understanding the role of the state prosecutor in the large scheme of democracy, he is trying to absolutely not get involved in the OAG’s affairs and he deserves a ‘jung’ for that on his nose.
He said that the Constitution says that the OAG is an autonomous body and if he had questioned the AG then this provision of the Constitution would haunt him.
However, the PM’s reading of this section of the Constitution is an incomplete one.
Chapter 29 section 1 of the Constitution says, ‘There shall be an Office of the Attorney General, which shall be autonomous, to carry out the responsibilities within the domain and authority of the Government and such other legal matters as may be entrusted to the office.”
The above section while talking about autonomy clearly says to has carry out the responsibilities within the domain and authority of the Government. The court’s grounds of dismissal of the case clearly show that the case was not filed within the the domain and authority of the Government as the court itself observed that the OAG and the state are not the same and accepting the case would harm the due process of law.
Lyonchhen said the reporter’s ‘angle of question’ indirectly says that the PM should get involved and fix or stop the case which is not fair as it is clearly wrong to politically interfere in the OAG office which is the state prosecutor.
However, this view of the PM flies in the face of judicial experts and lawyers who citing the Constitution and the OAG Act say the AG is accountable to the PM.
The PM said that the OAG is the legal advisor to the government and the not the other way around and the government seeks his legal opinion but the OAG does not seek the government’s opinion.
Here again, while the PM made this claim the fact that the OAG’s case was dismissed on strong grounds leads one to question the strength of this legal opinion.
Lyonchhen also said that every successive government should follow his stand on the OAG and then only democracy will come up in the true sense.
However, what the PM does not mention is that the biggest beneficiary of the OAG’s prosecution of Penjore for critical remarks on social media would be the government itself as it would dampen free and critical speech against the government.
The government’s stance also shows that even though the judiciary has ruled the OAG to be in the wrong the government has not accepted that by extension it’s entire position is wrong as the OAG is the legal arm of the government.