Gyelpozhing Residents worried about OAG taking over from ACC

Local Gyelpozhing residents expressed their concerns on how effectively the ‘government lawyer’ or the Office of the Attorney General would be able to prosecute the case against senior members of the government involved in the case.

Gyelpozhing town tshogpa Gyembo Dorji said, “Many people here in Gyelpozhing feel that the Office of the Attorney General may not be able to take action against the government as he is a government lawyer and many high profile people from the government among others are also involved.”

Many local residents according to Gyembo say that they have lost faith in the fairness of the government machinery after their ordeal in the last few years.

Gyembo said, “People here say that the issue came up in the first case due to the government not allotting plots fairly and now we are expected to believe that a government lawyer will look after our issue in court.”

He said that local residents have all been following the case very closely and are very happy with both the media for bringing out the issue and the ACC in investigating it thoroughly; however, he said the same could not be said for the government and the OAG.

This concern from Gyelpozhing comes in the backdrop of a growing national debate on whether the OAG is in a situation of ‘conflict of interest’ as the government lawyer prosecuting senior members of the government including the head of the government which is the Prime Minister.

In reply to a question on the conflict of interest the Attorney General Phuntsho Wangdi said, “We are currently reviewing the case and so we need some time after which we will come out with a suitable decision”.

 

Conflict of Interest

Former Attorney General and now an Opposition MP, Damcho Dorji believes that there is a strong conflict of interest.

“I think ACC is following procedures but the indication has to come from the OAG or the government that there is a conflict of interest. I think there is definitely a strong conflict of interest as the Attorney General is not a constitution office but directly under the Prime Minister who selects him and to whom he is accountable,” said Damcho Dorji.

“The main reason I resigned from my post as the Attorney General was for the very reason that the position of the OAG had become very vulnerable to the Prime Minister,” added Damcho Dorji.

He said that during the pre-2008 National Assembly discussions a Chimi had raised the need to make the OAG a constitutional post but it was not accepted by the then ministers.

Damcho Dorji said that in his capacity as the former Attorney General his advice for the current AG would be to inform the government that there is a conflict of interest and then hand the case back to the ACC who can prosecute it.

Even independent legal experts share the same position as Damcho Dorji.

A senior legal expert said, “There is absolutely a conflict of interest as the Prime Minister is the employer of the AG and can hire or fire him. The AG functions at the pleasure of the PM so how can the employee ever sue the employer.”

Another legal expert said that ACC should have prosecuted the case on its own by either using its own lawyer or hiring an independent public prosecutor which the ACC can do under its own Act.

Under, ‘The Office of the Attorney General Act 2006,’  Section 19 says, “The Druk Gyalpo shall, by warrant under His and seal, appoint an eminent jurist as the Attorney General of Bhutan on the recommendation of the Prime Minister.”

Section 20 says, ‘The Attorney General shall be accountable to the Prime Minister’.

Section 50 says The Prime Minister may remove the Attorney General on grounds of physical, mental, or other incapacity of a permanent nature, any violation of this Act or conviction under any other law.

As per the Act since normal civil service laws don’t apply to the Attorney General he will not have the same opportunity to appeal to the RCSC against the Prime Minister’s decision.

 

The other side

However, there are also views that the OAG though a government lawyer is prosecuting government officials as individuals who have committed offences against the government.

Former High Court Judge and now eminent National Council member Kuenlay Tshering said, “It is individuals that are being charge sheeted by the OAG and so the OAG can prosecute them.”

Under the same OAG Act section 46 on Conflict of Interest says, ‘The Attorney General may not appear, advice or represent any party against the Government.’

 

The ACC’s options

The Anti-Corruption Commission which has maintained a studied silence on the whole conflict of interest issue still has options.

A reliable source said, “What the people are not realizing is that the ACC still can check and balance the OAG as the OAG can only finalize their specific court charges on Gyelpozhing after consultations and approval by the ACC.”

The ACC in submitting the case to OAG as per normal procedure would have already filed preliminary legal charges quoting specific legal sections in applicable laws like Thrimzhung Chhenpo (predecessor of penal code), Land Act 1979 and Royal Kashos.

The OAG as in other ACC cases will go through the charges and either increase them or reduce them but for each modification of the charges OAG will have to offer clear legal explanations and grounds to the ACC.

“If the ACC is not satisfied then ACC can still take over the case and prosecute it on under its own Act,” said the source.

The source also said that speculation by some on whether ACC Act 2011 would become retroactive in an incident that occurred from 1999-2002 is not applicable as the charges would not be under the ACC Act but under the then applicable laws like Thrimzhung Chhenpo, Land Act 1979 and Royal Kashos.

ACC under section 128 subsection 3 can carry out its own prosecution of a person charged with an offence under this Act or take over the prosecution process from the Office of Attorney General when the case is, delayed without a valid reason, manipulated or hampered by interference.

A senior legal expert pointed out that in most international cases involving such a situation an independent public prosecutor would be appointed as is done by the Attorney General in the USA. In India the CBI have their own lawyers to prosecute cases and do not depend on the Attorney General.

 

Civil or Criminal ?

A major factor that OAG would have to deal with is whether to file a criminal or civil case on Gyelpozhing. This is relevant as under the ECB rules a registered criminal case against a candidate prevents him or her from taking part in the elections until the case is over.

According to the two legal experts that this paper talked to the Gyelpozhing case would be essentially a criminal case as it involved illegal sale of government land.

Damcho Dorji said, “The Phobjika case sets a very clear precedent as it was filed as a criminal case by the OAG after the ACC investigation was complete”.

Apart from the tricky issue of prosecution the Gyelpozhing conflict of interest issue also extends to senior Judges in the Judiciary as some of their close family members’ plots have also been frozen in Gyelpozhing.

Damcho Dorji said, “In such cases the judges who are related should excuse themselves to avoid conflict of interest.”

He said, “Both in international best practices and domestic situation it is not only important that justice be done but also justice should be seen to done otherwise the whole process will lose credibility even if it is done in a fair manner”.

When contacted the PM’s office declined to comment on the issue.

 

 

 

 

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58 comments

  1. If DPT is thinking it will be over this I assure them that it is here to stay for long long time. It will stay as long as it is not put off honestly. Fir will still keep burning.

  2. We should not forget this heinous corruption  and other cases that leaders committed. Citizens will united for fair justice. 

  3. the OAG has been serving as a pet poodle of the PM’s office so blatantly that now even at the village level there seems to be a total absence of faith that the OAG can do justice in this case.

    It really makes one wonder why the ACC chose this path to prosecute the accused. The OAG’s questionable position is utterly obvious.

  4. “Both in international best practices and domestic situation it is not only important that justice be done but also justice should be seen to done otherwise the whole process will lose credibility even if it is done in a fair manner”.

    The above is a quote from our former AG, so according to him, even if it is done in a fair manner, it is not going to be fair. I just hope that it is a genuine mistake on his part to have come up with such a howler or that this paper has misquoted him. If he really meant it, then he is joke and thank god we don’t have such people as the AG any more.

    As for the residents of Gyelpozhing, I trust the OAG to do the right thing by recommending that the land allotted illegally be returned to the RGOB for redistribution to the residents that were deprived earlier.

    As for the RGOB, they are not in the dock, if at all someone needs to be prosecuted, it is the former Dzongdag and his land allotment committee. And if justice is to be done, the Speaker should be the only one punished as it is clear to see, that, he as chairman of the land allotment committee forced all the other members to do his bidding.

    And, please, the Gyelpozhing and Phobjikha cases are as different as chalk is to cheese, in the former, going by the ACC reports, land allotment seems to have been done illegally by a committee that had been empowered to allot land, while in the latter, government and community land had been offered to Yab by someone who had no authority to do any such thing.

    So Dasho Damcho and all you haters out there, please stop clutching at straws.

    • It is easier said than done.Put yourself in  Mongar Dzongda’s place and think practically.During those days if you were the dzongda or some other high level people, you could have done worst corruption  than those involved.

      • Good
        Actually it was not meant to be send to you.It went accidentally

        • Actually, maybe you are right, I know how things worked in those days, but no matter what, we can’t make any excuses for what the Dzongda did, it was just not morally right.

  5. Now the ghost legal expert of “the Bhutanese” has finally been revealed.

  6. Its is interesting to know that theBhutanese has so many anonymous legal experts and it is quite amazing that the reporter had quoted so many reliable sources. All hear say and anti-government I assume.
    I don’t see the reason why this paper is trying to add salt into the cuts. It managed to make very deep cuts into our past leaderships and the system, and now it want to add salt in it. If OAG is not going to prosecute the individuals involved in the case, then is TL going to do that?  Doesn’t it suffice that ACC have the right to prosecute through their own legal officer or lawyer if they are not satisfied with OAG? Will this paper only be satisfied if the case is tried in the court of ‘theBhutanese’ with TL as both prosecutor and the judge? 
    The ACC had named only LYZ and JYT who are in the cabinet but this paper makes it look like all the people in the list are in the cabinet. 

    To poor MP Damcho Dorji, I know you have been an AG and you did not do a good job. And the main reason you resigned was because you were accountable to PM? Come on you sound like a filth. Just because you were corrupted, you think the current people in OAG are all corrupted. And you say, Phobjikha land scam was prosecuted as criminal case? Then why in heaven, are those people involved in Phobjikha land scam not behind bars? Why are they at large and free? 

    • Can you imagine, a person who was once the Attorney General of the country not being able to see any difference between the Gyelpozhing and Phobjikha cases, it is hard to believe that, this paper also did not bother to ask other legal experts as to whether they found the two cases similar, if they had, the answer would have been NO. The only similarity in the two cases is that it involves government land.

      I request Dasho Damcho to explain why he thinks the two cases are similar, I have given my reason for saying they are completely different. I hope our ghost legal expert is up to the challenge.

      • No, the similarity between the two cases is not the Govt. Land. Know the story properly before you comment. One involves govt. land but the other is a pool of land frm the poor villagers.

        • I accept that initially it was land acquired by the RGOB from poor villagers, so later it became government land which was being allotted, so technically speaking I am correct in saying that it was RGOB land.

  7. the law should apply be applied retro actively because in many land cases before was applied retroactively-some even 10 years before and people have been put behind bars—-therefore ACC should apply the same set of rules here ,too, otherwise ACC is just another body capable of only going after the smaller fries.for example teachers being terminated for few thousands…..what a JOKE

  8. MP Damcho never complained about the position of AG while he resigned back then to participate in politics. He should have made intentions clear early on and not disregard the position of AG in our society.

    Will any of the legal experts come out in public? Only then can we know how expert and competent the person is.

  9. I strongly believe that OAG will handle the case proficiently and with complete legal ethics. ACC must have done the full investigation and anything coming differenlty from the OAG will be again questioned by ACC. Therefore, there is little room for manipulation by OAG. If there is any manipulation from the OAG, there is a provision that ACC can take back the case and prosecute by themselves after hiring independent lawyer. We therefore still count on the good and truly unbiased findings of the ACC in this very important case. Because, the beneficiaries are all influential people who knows what they were doing is illegal, shall be liable for prosecution. Had the beneficiares been local people who were not aware of the laws, then only the land allotment committee would be held accountable and shall be prosecuted accordingly. But in this case, all the beneficiares are somehow pre-selected and pre-informed and taken the advantage at the closed door without the knowledge of the rest of the citizens of Bhutan, all should be liable for prosecution.

  10. If this issue hampered DPT’s political situation, it destroyed PDP’s political ambitions.

  11. I want to add two things:
    1. We do not undermine the integrity of the AG, but structurally, the AG is very much directly under the PM. Without PM’s recommendation to higher authority, his extension for next term is impossible. Therefore, how can AG prosecute PM and at the same time expect PM to recommend for his job. There are some technical issues involved here and rightly so, anyone as AG will feel very difficult to prosecute PM. Because of this structural issue, there are scientific reasons for ACC to explore other alternatives without the AG for possible prosecutions of people involved in the HISTORY GYELPOSHING LAND SCANDAL.

    2. In regards to the of application of Law retrospectively, people should assess and judge that there was a blatant misuse and disregard of Laws/by-laws , criteria and prevailing norms for their advantage. It was total miscarriage of JUSTICE and they have taken the laws in their Hand. People involved in such cases should be brought to justice even if it happened several decades. Otherwise people of this country will heavily feel justice is not prevalent in this country.
    Prevalence of INJUSTICE in the country means a clear sign of prevalence of ANARCHY! May God save Bhutan.

  12. Y is there so many call ‘ reliable source,legal expert, so on’. Y? This paper can’t function on annanymosity. Don 4get lamsang dis is media. Giv right n credible information.i m not saying u giv wrong information let it b credible.wen they r nt afraid to defame PM y shud they b afraid to name themselves.

  13. job well done by thebhutanese. Only this paper is the iron paper, rest are useless. I support opposition MP and Tenzin Lamsang, others who do not like them are corrupt as the government.

    • I dont support O/party but Tenzing lamzang only .He should raise the issues of Dratsang Lhentshog and its functioning.Why some practioners are not allowed to build the shedra and drudbdra ???Is it beacause of the Nyingma sects or they dont have support of Powerful leader.Ka-Nying Zungdrel must respect and follow it.It should remain  and give a space for the spiritual development of the country.Otherwise GNH is in jeopardy and eye wash to the world.Two sects must work together to contain those fast spreading foreign religion.Hope nation will awaken from it.

  14. lamsang, I admire your concern for the poor citizen. But here there are some people seems to be worried since it has become a big issue after ACC’s report.

  15. Helo damcho….mp.. Do u think u r only the person with the legal background otherwise dont u think it too early to submit ur suggestion mena? lets wait n see the judgement…. Wad u said is all ur reflection during ur stay as AG…

  16. Do some of you really think that all the people involved in this issue should be prosecuted? Let’s be realistic and rationale.

  17. TL, hats off to you.

  18. If OAG cannot valid the report of ACC then please shut down the office of OAG that is it…

  19. If the OAG can not prosecute this case, then probably no one can. Name of chief justice is on the list too. It’s a big worry. In any other country, he and other ministers would have resign on moral grounds. I think it’s bad precedence they are setting for new democracy.
    Resign on moral grounds irrespective of the outcome get their names cleared as commoner not as ministers (abuse of power &office) and return the lands to all the rightful owner and close the chapter would be the best way to go in this case and save the blushes
    .

  20. sombaykha2012

    we must learn to trust the system as well as the govt. that has in every sense proven its sincerity and loyalty to the people.

    Allegation against the govt. is a norm in any democracy. And if the voters are to be blinded against all the good done by the govt. by unfounded /unproven allegations then no govt will survive in a democracy unless freedom of speech is deprived.

    We need to remind ourselves that it is the govt itself that had called for the investigation. It is because of its conviction in freedom of speech and transparency that we can speak and write as we do most critically and often unjustly of the govt.

    And we do so without fear because this govt has given no cause to fear. To believe all allegations would point to the need for media literacy and sensibility among ourselves.

    Sudn’t we perhaps start asking questions on who are these people raising all these doubts and suspicion against the govt.?

    Are they really for democracy and for Bhutan or could they be serving vested interest?

  21. I dont know why the only pool of lawyers at OAG did not understand what conflict of interest means. may be because the lawyers sitting up there could be all apa scholarship lawyers. there is no issue of conflict of interest involved in this particular case. OAG is not prosecuting Government. OAG going to prosecute JYT and other Lyonpos in their personal capacity and not in their official capacity as lyonchen and ministers. its simple as this.

    • …and the PM can find his own reason not to extend the appointment of the AG…know what I mean?

      The AG, like every other ambitions person, knows how to read the writing on the wall, between the lines etc. The writing’s clear. Just look how swiftly the NRDCL MD was prosecuted and imprisoned. The first agenda of the PM after he took office.

      Pretty vindictive for a man of GNH, don’t you think?

      • So you think JYT will be the PM for next six years too? Whereby he can not extend the term of AG if he did his job well? 
         Your derivatives and deductions of conflict of interest are too vindictive indeed. And now, just because I said this, I know you will give me a relationship to PM like many others who are JYT haters. You think  NRDCL MD was investigated by PM not ACC? Prosecuted by PM not OAG? Passed verdict by PM not the Court? Nobody, not even God if there exist one can help us at this rate of such deductions. 

    • What makes you think that the lawyers at the OAG think there is a conflict of interest, the only people that think that way are this paper, Dasho Damcho and some ghost legal experts(never knew we had legal experts in our midst). The only reason they are doing this, is that they are playing to the gallery, so if the OAG makes a decision that says only the land allotment committee are culpable, the public will not be happy with it.

  22. In 1987-1988, a group of Dzondas were sent to Dobji dzong, is it the turn for some of our Ministers and Influential family, to set an example so to speak.

  23. The lawyers engaged in OAG are all Bhutanese and because of their law background, they have a very clear plitical carrer ahead and most of them are practitioners. They should try to create a clean political environment otherwise Bhutanese are not fools and these days individiuals actions are constatntly measured/.

  24. The middle way is the noble eightfold path( Phak Pai Lam yeonlay gakyed) So follow middle path to resolve the case.

  25. Do not undermine OAG and let it takes its own course, just wait for the result.

  26. LJYT and other lyonpos accepted plots in Gyelposing as individuals, not as government representatives, and it was for their personal consumption, not for any public good. So, where does the conflict of interest lie when OAG is simply making a move to prosecute those individuals who are implicated in or suspected of having links with the land allotment scam? And remember one thing, JYT as our PM simply represents our government but he is not the government itself. In fact, we all constitute government and are responsible for managing it. If at all AG is hesitating to handle this case, he must be having some personal reasons to do so. But he should stop telling the people that OAG can’t carry out its responsibility on the ground of conflict of interest, which is very absurd.

  27. Dasho Damcho was highly respected person until i read this story. It clearly state here now what kind of person he was when he was judge as well as AG. On the other hand i feel something fishy between TL and Dasho Damcho, coz with every news he was the person to quote or command.

  28. …In reply to a question on the conflict of interest the Attorney General Phuntsho Wangdi said, “We are currently reviewing the case and so we need some time after which we will come out with a suitable decision”.

    WHAT IS THIS SUITABLE DECISION? What if unsuitable?

  29. Gyelpozhing is a malaria infested place and many people who lived there migrated to Mongar, Drepong, Saling, Mathangdasa and nearby places in the past. I hope people who bought land there might regret later!

  30. Sonam Tobgyel

    All Vampires will not be elected in 2013 like Vampire of PDP

  31. Some of them r already regretting and will regret more later.

  32. My message to the educated voters is please make sure that your relatives, families, friends etc dont vote for DPT in upcoming elections….if DPT selected in 2013 then I am sure DPT will ruin the country because they will do more corruption with the notion that they are not eligible for 2018 because of their old age. And some of the high dignitaries like old age lynpos including corrupted J T, corrupted Yeshi Zimbawe, etc will create the personal decision rather than Country decision…This is my Psychological feelings which may be true..

  33. We should elect the present Govt. for another term, because if another new party wins all the MPs will be new and poor who will grab few thousand acres of land during their tenure. The standing Govt. members have grabbed enough land for themselves and they will not grab any further.

    Further, a ghost in the room will be better then think of another one coming from outside.

  34. Phunthso Wangdi of OAG should terminate if he doesnot handle the case because he is under influence of PM and DPT. I feel he doesnot have quality to handle this case due to conflict of interest. I feel “confict of interest” itself is corruption. When ever we meet with ACC and OAG, we raise question like Who is there to prosecute ACC and OAG? they simply say they will bring justice to the law but where is justice to the law when arise confict of interest. So, i feel ACC Am Naten should remain as ACC because she brought justice to the law and OAG Ap Phuntsho Wangdi should terminate as he is in conflict of interest..when ACC has reported that Glephshing case is a crime. Ap Phunsthso Wangdi must bring to the justice if he does not prosecute the case and but let see his decision..

  35. But someone has to be accountable for the pending Chang Ugyen’s case. We should see the TRUTH of the case and dimension of it. Somebody has to be accountable. Chang Ugyen’s case and other similar case backed by clear evidence needs to be treated in the SAME WAY AS THE AWP

  36. If there is lapses on OAG or NLC for Chang Ugyen’s case, they should be held accountable and stern action should be taken for deliberate lapses. AG may be terminated or demote, if there was lapse from OAG side.

    If there is tampering of documents and inflating his land in THIMPHU, how can the substitute from other DZONGKHAGS acceptable?, WE FIND SOME KIND ON INNOVATIONS- a sign of A BIG FAILURE SOMEWHERE. Not even a lay person will be ill afford to believe when land in Thimphu (near the capital city) can be exchanged with land from other Dzongkhags. THIS IS AN OPEN CORRUPTION. We have so many corruptions- both open and secret corruptions. It is time that the justice be done and Govt/NLC to cancel the ownership and bring Chang Ugyen to justice. Did we spare people involved in AWP, AWP, AWP??????

  37. Birla – you name and your views really do reflect the current corrupted India politicians. How can one justify electing present government on the basis that they will be less corrupted because that have already taken what they want? It baffles me!

  38. Why should Gyelpozhing residents worry, for what! The people residing there are already allotted land, hence they are living there. Even if the land is taken back from the allottees the people who are already there will not be given yet another allotment. The land will remain as Govt. land. So why is Tshogpa Gyembo disgruntled! He must have been paid to voice?

  39. Our Mr. PM is still in the denial phase and won’t apololigize for his misdeeds.Even after ACC has clearly said there was land grabbing at gyelposhing.

    Recently Myanmer’s champion politician mrs. SUU KYI said … it’s not the getting of power that makes people corrupt but it is the fear of losing it that makes them corrupt.. As they’ll do everything possible to stay in power… N i find it so so true in this case but our political leaders. If PM had just said sorry for all this mess we would be glad to forgive him but i feel he’ll not do so… power brings ego and man’s ego is he porperty he’ll not like to lose his ego…. I celebrated with my friends the evening when he was voted to power in 2008… i was proud to have choose a right man for PM’s seat in democratic Bhutan… i wish he was as humble as he actually appears…. Cover can be decetive….. very much true in the case of PM JYT…I feel it’s not late yet, he can still come out clean and say i was mistaken.. and say sorry & mass would still follow him to grave… That is the level of trust he had from the mass..At least i would have blindly followed him wherever he led me as my leader.. but now… i have to think of alternate. Respect is earned, my father used to say when i was in school, hope PM knows this as he appears to be a well learned man….but in this case he has lost it all….We as a commoner, feel cheated and hurt when our leades to whom we have given power to take our mother land to far better position for our future generation’s sake, deceives us like as if we are bunch od kintergarden kids studying A, B, C…. lastly question to the Champion campaigner of GNH.. JYT… WHere is GNH in you? Please we the people need leaders, capable ones like you to take our nation to the heights we never thought of but we need you clean and dedicated to serve tsa-wa-sum…not “tsa-wa-che”…may the peace and happiness be there in the land of GNH.. long live the king.. long live Pelden drukpa…

  40. There is complete absence of Blood Suckers in but only Land Suckers available in bountiful..

  41. There is complete absence of Blood Suckers in Bhutan but only Land Suckers available in bountiful..

  42. ACC did a great job. But the final verdict has to come from the court. Is our judiciary capable of giving fair and just verdict? There was one case where the court dismissed the corruption case that was painstakinly investigated by the ACC. The ACC provided mountains of evidences, yet the court said there were not sufficient evidence. The court has not yet issued verdict on Phubjikha land scam. We invite The Bhutanese to do investigative journalism on how our justice system work? When the judges disregard laws and solid evidences, who is responsible to held them accountable? In India the abuses committed by judges are investigated by CBI? Do we have CBI equivalent in Bhutan?

  43. Why did the PM hand over this case to the ACC? If this happened during His watch ,he is responsible if not fellow citizens let us be fair and open for the record ALL land allotments that do not have His Majesty’s Kasho.
    Infact  Lamzang with his amazing journalistic acumen should do justice by us .we  look forward to your next report!

  44. First off I want to say terrific blog! I had a quick question which I’d like to ask if you do not mind. I was curious to find out how you center yourself and clear your thoughts before writing. I have had difficulty clearing my thoughts in getting my ideas out. I truly do enjoy writing however it just seems like the first 10 to 15 minutes are generally lost just trying to figure out how to begin. Any suggestions or tips? Many thanks!

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