PM says no permission given to OAG to prosecute the case nor is any permission required
The Office of the Attorney General (OAG) in a press release issued on 6th May 2021 said that it has pursued ‘legal action’ against an individual with the alias ‘Penjore Penjore’ on social media.
It said he has been detained and is under investigation. The release said “the issue pertains to defamatory posts that are unfounded and made consistently by him over the years against public officials and institutions of repute that fulfill judicial, quasi judicial, and and other functions, including the Office of the Attorney General on Facebook.”
The paper has learnt that the OAG did not take this legal action on the basis of complaint from any government organization or even with the permission of the Prime Minister to whom the OAG is accountable.
It was learnt that the OAG took the action on its own without any complaints or instructions from the government.
This sets a new legal precedent in Bhutan that touches on freedom of speech, prosecution of defamation by the state, powers of the OAG and also the accountability of the OAG to the government.
Judicial expert says OAG has no legal basis
A former member of the Judiciary and now a judicial expert who did not want to be named, questioned the legal standing of the OAG to take legal action against Penjore Penjore.
He said that in this case no state institution or the government has forwarded a case to the OAG to prosecute the case.
He said that it is a different matter if Penjore Penjore is hauled up by the courts for contempt or if any individual who feels defamed by him files a case against him, but it is quite another matter for the OAG to take up the case on its own.
The majority of Penjore’s social media posts have been against the judiciary, but it is notable that except for one warning in 2015 the Judiciary did not haul him up for contempt.
Even the BNB Bank which was also the subject of many of his posts had never filed a complaint or case against him.
The Judicial expert said that public institutions and offices should expect to get a certain amount of criticism.
He said that even if Penjore Penjore has made a specific allegation against any person in the OAG the OAG should not take up the case as an institution but the individual who feels defamed on personal grounds should take up the case privately instead of using the OAG.
Coincidentally on the Facebook timeline of Penjore on 4th May he had posted a BBS story on the conviction of 12 former employees of BNB being sentenced to a year for forgery and he had commented asking the OAG’s Attorney General and BNB’s top executives to resign.
The question now also is if the particular post of Penjore had personally defamed the AG then should he have sought permission from the PMO to file a case on behalf of the government, or taken up a separate defamation case as a private individual using his own resources and time and not the resources and time of the state and government.
The current Agriculture Secretary Rinzin Dorji in May 2019 had filed a defamation case in the RBP against a former employee of the Agriculture Ministry for making allegations in Bhutanese ་News and Forums. However, the complaint was made as an individual by the Secretary.
The RBP is investigating the Penjore case based on the ‘legal action’ of the OAG which makes the OAG both the complainant and also the prosecutor in the case.
Also, if this case is allowed to go ahead then it would mean that the OAG would be acquiring tremendous powers to sue anyone in Bhutan on its own without any case being forwarded to it by government agencies or without the permission of the government.
The Judicial expert said that checks and balances among institutions are important in a democracy and in this case that principle is being undermined.
The judicial expert said that the OAG may think it is autonomous but as per the OAG Act the AG is accountable to the Druk Gyalpo, the Prime Minister and the Parliament.
He said the accountability is not limited to the submission of annual reports. He said in the case of the Prime Minister it is the PM who recommends the name of the AG to the Druk Gyalpo and it is also the PM who can get the AG removed.
The Judicial expert said that when the PM has the hire and fire powers when it comes to the AG, then it also means that AG is directly accountable to the PM for his actions.
The expert noted that the PM could not do such things with truly autonomous and independent bodies like the ACC, RAA, ECB and RCSC which are recognized as constitutional bodies under the Constitution.
The expert also pointed out a flaw in the OAG Act. He said the Act made the tenure of the OAG as term based but it should not have been the case and every new Prime Minister should have been given the option of selecting a new AG.
PM says permission was not sought nor is it required
The Prime Minister Dasho (Dr) Lotay Tshering said he is not aware of the details of the case.
Lyonchhen said, “He (AG) has not taken my permission on this case and I don’t feel he needs to as well. He is the legal advisor to the Prime Minister and the government but I am not his advisor.”
The PM said it is up to the AG to inform him about the case or not and seek permission or not. “If he seeks my opinion I could say no comments or give a decision. I am the happiest person either way,” said the PM.
Lyonchhen said that the merit of the case and whether the OAG has a legal standing or not will be decided by the courts.
“If he (AG) is proven wrong in the courts then he will have to deal with the consequences himself,” said the PM.
The PM said it is not true that there is no check and balance in this case as the courts will be the final check. He 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.
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 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.
The PM reiterated that the government is not suing the private individual, but it is rather the OAG suing the individual. He said the OAG is an autonomous body with its own dos and don’ts.
AG gives an interview and then withdraws it
The reporter conducted a detailed and on the record interview with the AG Lungten Dubgyur on why the OAG had taken up the case, the legal basis of the case and its implications on freedom of speech, powers of OAG, accountability to the PMO etc.
However, the AG called the reporter back and asked him not to report anything he had said ominously saying that it would interfere with the investigation of the case by the RBP.
The reporter pointed out to the AG that the interview was not about the details of the particular case of Penjore Penjore but the AG ordered that his interview should not be published again saying any statements from him would interfere with the RBP’s investigation.
If this is the current position of the AG, then it is not clear why the OAG issued a two-page press release on 6th May detailing the case against ‘Penjore Penjore’ when the RBP had just started its investigation.
The withdrawing of an on the record interview over the phone given by a public official to a media house with the underlying threat of it interfering with the RBP investigation may constitute deliberate censorship by the OAG.
While the OAG may have acted on its own, given that it is the legal arm of the government this will be the first time since the advent of democracy in 2008 that the legal arm of the government is suing a private citizen for defamation.
Apart from this, it is the first time in the OAG’s history that it is taking such an action without a complaint or case being sent to it by the government or any government agency.
Importantly, the PM himself saying that his permission is not required by the legal arm of the government to sue a private citizen in fact could be seen as the biggest permission of all, and may give a free for all for the OAG now and in the future to sue private citizens on its own for criticizing the government or the OAG.
The precedent set by the case may also have a dampening effect on social media or even media criticism against government agencies or individuals in the government holding public office, and could hence end up politically benefitting the government at the cost of freedom of expression.
The government can escape political culpability for defamation prosecutions saying it is helpless with an autonomous OAG, while its own legal arm can go about prosecuting people on the government’s time and resources.
This is regardless of the court verdicts as the very process of being charged for defamation and being dragged to court is a punishment in itself.
The role of the judiciary also becomes important here given that several of Penjore’s utterances have been against the judiciary. Their stance on the case is what will ultimately decide all of the above issues and its impacts on various fields like freedom of expression, powers of the OAG, defamation prosecution, accountability of OAG, role of the government, defamation cases being prosecuted at state expense etc.
Possible Contravention of 2008 and 2009 verdicts on defamation case by OAG
The action of the OAG may also be in contravention of verdicts issued in the Sangay Dorji defamation case prosecuted by the OAG on behalf of the cabinet in 2007.
In this case a Bhutanese lottery agent, Sangay Dorji was taken to court in 2007 by the cabinet on charges of defamation, sedition and false information made against two of its then ministers Lyonpo Yeshey Zimba and Lyonpo Wangdi Norbu and a government secretary Sangay Zam. The cabinet through a letter had asked the OAG to prosecute the case against Sangay Dorji as a government case.
However, in the verdict number 19923 the Bench 2 of the case on 11th July 2008 dismissed the case and instead the OAG was pulled up for even taking the case against Sangay Dorji.
The verdict on this issue said, “Under section five of chapter two and under chapter three of the OAG Act the Attorney General has a special responsibility to be a guardian of rule of law which includes guardian of public interest…. The responsibility for individual criminal prosecution must be undertaken on strictly objective and legal criteria, free from any political consideration and independent of the traditional cabinet decisions. Any deviation would lead to dysfunction of the democratic process and will become more pronounced in the near future. No prosecution of this nature maybe initiated in the court at the cost of public purse.”
The verdict in short said that even if it’s a cabinet decision the OAG cannot take up individual cases at the cost of the public purse.
The Thimphu district court verdict was also upheld by the High Court in 2009.