After spending 16 days in jail the thing that pains Penjore, 55 the most is that despite serving in the government (1990 to 2012) in the Agriculture Ministry where he set up the Central Machinery Unit in Bumthang and also helped set up regional branches in Trashigang and Gelephu, and helped build 3,000 km of farm roads, he was treated like a ‘terrorist’ in the end for a facebook post.
“I am completely sickened and pained that was I was locked up for 16 days with nowhere to go and in the dark about my status. I was not allowed to meet even family members. It was as if I was some kind of ‘terrorist’ or ‘anti-national’ who had planted a bomb when I had done nothing wrong and only used my freedom of speech under the Constitution,” said Penjore.
He said he was put under tremendous mental stress due to his loss of liberty even before any conviction and his family who depends on him as the head of family and the sole source of income was also put under a lot of stress.
On the 6th of May Penjore got a call around 11.30 am from the Thimphu police station from the OC there asking him to report to the station in relation to his 4th May post as there was a written complaint from the OAG saying he had defamed the AG through the post.
He reached the station around 2.30 pm with his wife, daughter and son and was questioned by 3 RBP officers including the OC on the post and he explained himself and the post.
He said his son (22) who is a Desuup was by his side. After explaining himself he said the OC said he can give a statement in writing and then leave.
However, after writing his statement he said the same OC later informed him that he would have to be detained. He said even his son was shocked as the OC had earlier said he could go.
His wife who is a housewife and 55 years old had initially been reassured when her son informed her that he could leave.
But on hearing about her husband’s detention his wife rushed in and burst into tears requesting the RBP not to detain him like this. She said though they had lost their hotel to the bank five years ago Penjore had worked hard to feed his family and the RBP should not lock him up without any crime being committed as it would make matters more difficult for the family.
Penjore, despite the plea from his family members, was not released and he was locked up at around 5 pm in the Thimphu for the next 16 days.
Penjore said that he shared a 2-room detention center with around 8 other people and all of them were in for civil cases with most having to do with not being able to pay back money lenders or banks. He said one of them was in for close to two years in a money case. He said all of them were shocked to learn that he was locked up just for a facebook post and many felt sorry for him.
Penjore said his fellow prisoner said that at least they had borrowed money and were not able to pay back, but in his case it did not make sense to detain him.
He said that for the next 16 days he was kept continuously locked up with even no time to go out and breathe fresh air or get some exercise. He also had no access to information and what was happening to his case or for how long he would be locked up for.
“When you are locked up like this you almost feel that your head is going to burst with all the stress, mental torture and trauma,” said Penjore.
Penjore also asked that in a time of COVID-19 what was the need to lock him up in such a large group for a case that was even yet to be proven.
Penjore said that in his 4th May post all that he asked for was why the OAG had dropped certain charges against senior officials which had been framed in the RBP investigation of the BNB recruitment case while prosecuting the 12 junior staff.
He said he had called for an ACC investigation and until then the Attorney General and the BNB officials should step down as per investigation practices and then resign if proven guilty.
Penjore said he has a right to ask these questions when the ACC itself had fought cases against the OAG on certain charges and cases of ACC being dropped by OAG only to have the courts ruling in favour of ACC in multiple cases.
He said if OAG can drop charges at whim then the prosecuting agency becomes like a court and it should be left to the courts to see if the charges merit action or not. He also said that then it will also set a precedent for others.
He said his post was specifically against the Attorney General and some BNB officials and not against the OAG as an institution or the BNB as a bank.
He explained that his post is within the reasonable ambit of the freedom of speech guaranteed under the Constitution and also under section 318 of the Penal code which lays down certain grounds where a statement is not defamation. He says these are bonafide expression in the public interest, appeal through lawful means or in good faith to redress a grievance, bonafide complaint by or to an agency of Bhutan to redress a grievance and instances where the court based on facts and circumstances considers the statement made to be reasonable.
Penjore said while his post was against the AG only, he fails to understand why the entire institution of the OAG was brought in to file an official defamation complaint against him.
This is something Penjore repeatedly told the Royal Bhutan Police (RBP) officials who called him for questioning.
Why detain me
He said that his 16-day detention is already equivalent to punishment being meted out to him even before his guilt is established.
Penjore said that the RBP had detained him telling the court his detention is needed for the investigation, but strangely during his 16-day detention he was not questioned even once.
He said that a person is detained if there is danger of flight, chance of destruction of evidence and also a danger of influencing witnesses.
He, however, pointed out that he certainly would not have fled due to a defamation case given his business and family is in Bhutan, the RBP already had the evidence in terms of his 4th May post and his phone and there are no witnesses to influence in a defamation case.
Penjore asked he still does not know why he was detained for a full 16 days when he did not fulfill any of the above conditions for detention. He says the only conclusion he can make is it was done to humiliate and punish him even before his case went to trial.
A RBP official in an earlier interview had said that they had to detain him as the OAG complaint was not just about the 4th May post but also included earlier posts against various government institutions which had to be looked into.
Soon after his detention on 6th May the OAG had issued a two-page press release talking about Penjore’s detention by the police and also listing various accusations against him.
Normally, the OAG is hesitant to even share case information even after it has been investigated by an investigative agency and OAG has framed charges.
While Penjore was in detention the Parliament Human Rights Committee had come on a routine visit to check the condition of the prisoners. He said that during this visit he put up a written complaint to the committee on his detention and requested them to investigate his case.
Penjore said that his basic human rights have been violated in the way he has been treated.
AG should file a private case
Penjore said if the AG feels defamed then he should have filed a private defamation case against him in court instead of using the entire legal arm of the government machinery in the form of the OAG against him using the time and resources of the government.
He reiterated that he did not defame the institution of the OAG and the BNB. He said his points were specifically against the AG.
The OAG in its press release had said that Penjore had been warned once by the High Court in 2015.
Here, Penjore said that there is a conflict of interest as the then Judge who had warned him via the media over his hotel case was the current AG. He said even at that time he had not gotten any written letter from the court about the warning except for reading it in a local newspaper.
He called on the Prime Minister as the boss of the AG to restrain him from using the OAG for a personal defamation case as he has not defamed any institution.
Penjore said he is instead ready to face a private defamation case in the court from the AG as a private citizen.
He said if this is not done then it will be equivalent to misuse of government resources and time to pursue an individual case in the name of the government.
He also asked how the OAG can be both the complainant and the prosecutor in his case.
Implications on freedom of speech and media
Penjore said that the case is not just about him but his conviction will have a chilling effect on the fundamental rights of freedom of speech and freedom of media (including social media).
He said he is being made an example of so that other ordinary people do not come forward.
Penjore said that if he is successfully convicted then two things will happen. The first is that it will give a precedent for the OAG and also other government agencies to actively start prosecuting and locking up people who criticize them.
He said the second thing is his case itself will lead to people becoming hesitant to speak out their minds and criticize the system. Penjore said that this will eventually also impact the media.
Alluding to his 16-day detention he said already a message has been sent out that you can be locked up for 16 days for a critical post even before the trial and this would have already impacted the freedom of speech and freedom of media guaranteed in the Constitution.
He said his case means that from now on anybody criticizing the government or even an individual in the government can now be locked up for 16 days without even being convicted.
Penjore said that his case can create fear in the minds of individuals breeding self-censorship and undermining democratic values.
Appeal to the PM and ACC
Penjore said that ultimately the OAG is the legal arm of the government and the AG is accountable to the Prime Minister.
He said the AG is hired and fired on the PM’s recommendation which shows that the AG is directly accountable to the PM.
Penjore said that he has already lost 16 days of his liberty and a government defamation case has been lodged against him by the AG when he has not committed any defamation against the government. He said the AG did this without getting any case or seeking the government’s approval to file a case on him. Penjore said this is misuse of official power and authority.
Penjore called on the PM to remove the AG from his post as the above actions harmed not only him but also the country.
He said he does not subscribe to the PM’s view that the AG did not need to consult him to take such actions as under the law the AG is accountable to the PM who has hire and fire powers over the AG.
Penjore said that if the PM does not take corrective actions in this case then there could be social problems in the country due to its impacts on everything from freedom of speech and media to the powers of the OAG to how it drops charges and prosecutes cases.
The RBP finished its defamation investigation and has sent it to the OAG which will be the complainant as well as the prosecuting agency.
The paper tried to get comments from the AG and the RBP but there was no response.