The Cabinet decision to surrender three Secretaries and discontinue the Committee of Secretaries (CoS) is mainly based on the four meetings held by the CoS between October 2 and November 27, which discussed two articles published by ENERTIA.
The issue first came up through a letter from the Ministry of Economic Affairs Secretary, Dasho Sonam Tshering, presented to the 120th CoS meeting on October 2, 2014. The letter was attached with copies of two articles in ENERTIA published in its August 2014 issue.
The first article is on ENERTIA’s 7th Hydropower Conclave in Bhutan which is a fairly standard coverage on the hydropower cooperation event. The second article is on a the alleged harassment endured by the former Bhutan Electricity Authority (BEA) CEO, K.B Wakhley, and his process of compulsory retirement where he makes various charges against the MoEA Secretary. The same article also has a teaser headline talking of a 1.5% percent commission being paid by BHEL to be uncovered in its upcoming September 2014 issue.
Dasho Sonam Tshering’s letter to the CoS was in regard to the two August 2014 issue articles, and particularly on the second article of the August issue where various allegations had been made on the Wakhley case and also the commission issue mentioned in the teaser.
Here, it must be mentioned that The Bhutanese had followed up on the September 2014 issue of ENERTIA that had shown the document signed between BVT and BHEL for a 1.5% commission, and not the August 2014 issue. The Bhutanese story which is based on evidences and never mentioned in these communications below was first published on October 3, 2014.
In his 2nd October 2014 letter to the CoS, Dasho said that ENERTIA was trying to get back since the MoEA had not participated in the hydropower convention. He accuses ENERTIA of trying to use Wakhley, and vice versa, in the letter.
He asks, in his letter, if an Indian publisher can present senior officials of the RGoB in bad light and make political inferences, he also asks how senior officials are protected against defamation in doing their duties in a fearless and transparent manner, and he also says that Wakhley’s removal was done as per rules.
It seems that the Cabinet Secretary who sets the agenda for the CoS allowed a discussion on the matter.
The CoS discussed the matter and decided that the Cabinet Secretary would submit the MoEA Secretary’s background note to the PM. It was also decided that the CoS would direct the Foreign Ministry to write to the Government of India on the issue, the CoS would seek views on defamation from the Office of the Attorney General and the government, henceforth, would not associate with Mr A.G Iyer, owing to his objectionable behavior.
However, the PM was never informed of the meeting or its decisions.
In the 121st CoS meeting on October 9, 2014, the Cabinet Secretary reported that the letter had been sent to the OAG, seeking legal opinion on the matter. The draft letter to the Foreign Ministry was discussed and endorsed. In addition, the Foreign Secretary informed the meeting that the ministry will take action based on legal opinion from the OAG.
In the meantime, the OAG provided its legal opinion on October 22, 2014. In its opinion, the OAG said that a successful defamation prosecution could not be sought as Wakhley commented on the perceived difficulties in the procedures of his retirement, and also that the 2008 High Court Judgment on ‘OAG Vs Sangay Dorji’ had said that public officials enjoy lesser protection of their reputation since they are routinely exposed to public opinion because of their public profile.
OAG also said that the RCSC is duty bound to give necessary support to the Secretary to take action against the allegations. The OAG also commented that in the event of ENERTIA’s allegation of officials taking a 1.5% commission not being true, ENERTIA cannot be prosecuted as Bhutanese courts have no jurisdiction over entities in India.
The OAG advises that before the matter is formally and diplomatically raised with the GoI and mutual assistance sought for investigation “the OAG is of the opinion, as mentioned above, that first the allegations and facts should be verified by the Royal Government”.
The OAG also advised considering filing a criminal complaint with the RBP to find out if Wakhley was behind the ENERTIA Foundation article and also explore filing a National Security Act case against Wakhley, if he had created serious misunderstanding between the two governments.
In the 123nd CoS meeting on October 30, the MoEA Secretary said that he was not happy with OAG’s advice on defamation as OAG had made wrong comparisons with an old case. He did not agree with OAG that there was no case for defamation. He also expressed on the need to submit a ‘protest letter’ to the GoI to share the RGoB’s concern on the matter as ENERTIA was also trying to portray the RGoB and GoI partnership in hydropower in poor light.
The decision of the CoS was to write to the RCSC requesting for necessary legal action on defamation particularly against Wakhley. The meeting also directed the Foreign Ministry to expedite communicating the concerns of the RGoB to the GoI. The Cabinet Secretary has again informed the meeting that he would submit the matter to the PM.
However, neither the PM nor the Cabinet was informed about the issue again.
In the 124th CoS meeting on November 27, 2014, the CoS reminded the Foreign Secretary to expedite writing to the Indian Embassy.
Again the PM and the cabinet was not informed on the matter. Despite the increasing array of information and evidence coming out on the BHEL –BVT case, the CoS still stuck to its original stand made two months ago.
Finally on December 2, 2014, the faithful and strongly worded letter (see separate story on letter) was sent on behalf of the Royal Government of Bhutan by the Foreign Secretary to the Indian Ambassador exhorting the GoI to act on the issue and also saying that the articles undermine the friendship between the two countries.
It was only by accident that a Cabinet Minister chanced upon this letter on December 9, 2014.