Younten Dorji, the lawyer for Dasho Paljor J. Dorji also known as Dasho Benji presented not only strong and detailed arguments in defense of Dasho Benji’s rights but also went on the offensive accusing DPT of everything from corruption to sedition.
The defense started a background of Dasho Benji and his family making the point of how they had including Dasho had served the national faithfully through generations. Dasho’s long tenure of service to the nation from His Majesty the Third Kings time including various awards and citations were pointed out. It was also made clear that Dasho had no political affiliations.
The lawyer said that the defendant’s comment was a humorous counter to what he thought was a baseless comment on the government by an anonymous person, one, ‘Guy Harris Dorji’. He said that though there were other more defamatory comments the comment of Dasho Benji was picked upon by DPT.
The lawyer instead brought by the DPT letter to the court that accused the defendant’s comment of being undermining the unity, harmony, peace and prosperity of our nation” and also for “creating divisions and disharmony among our people” among others.
The lawyer said that DPT must prove how exactly the comment have harmed DPT failing which DPT charges against the defendant itself would be defamation.
Political Parties cannot sue for defamation
Introducing his second major argument the lawyer said that with Bhutan being a young democratic country, there is no settled law on the issue of whether a political party, be it ruling or opposition, can sue an individual for criticizing its governance.
“The Plaintiff is a registered political party and by very nature of the institution, it is open to criticism by its public members,” pointed out the lawyer.
It said that DPT being both the ruling and opposition party had the inalienable first duty to protect and promote the fundamental right of Bhutanese citizens that are guaranteed under Article 7 of the Constitution and not undermine it by the present suit. “The Plaintiff thus must learn to have democratic temperament to sustain its party legitimacy in a democratic setting as that of ours,” he said.
He cited example of a judgment in Canada to prove his point which equated defamation with a form of force that the government should not use to silence critics.
Also stating why a party could or government agencies could not sue for defamation he said a political party is of different character from that of a natural private individual and business entity. “It is a public institution, an electoral agent of the public at large and the society has the absolute right to measure the policy and theories advocated by it and are always subject to ultimate censure at the polls,” said the lawyer.
The lawyer said that it was because of this inherent democratic power that the citizenry can wield over political parties, the public has something akin to a proprietary interest in the affairs of each party.
“Each citizen feels that it is his democratic right to aid or oppose, to exalt or blemish the name of these electoral agents. Whether good or bad, the democratic tradition demands the damning of opposing political parties and public accepts that damning with a grain of salt,” said the lawyer.
The lawyers said a group cannot be said to have been defamed except a private individual. “Unlike individual private citizen, a political party (which is a group) cannot suffer proximate damages from defamation at individual level,” he added.
The defense said the reliance of DPT on the two cited cases of Paro District Court, and Phuntsholing Dungkhag Court, are irrelevant as the two cited cases involves defaming natural persons and not amorphous political party as in the present suit.
“Further, if the political parties could sue each other or private individuals for every damaging expression of opinion made during a campaign or thereafter, then every hard fought election result would become a locust of defamation litigations,” said the lawyer.
The lawyer also argued that the present suit is a direct attack on the fundamental rights of speech, opinion and expression. He said the judiciary has the inalienable duty to protect and safeguard those rights of citizens.
The lawyer also argued that DPT’s contention that the defendant having made the alleged online comment has breached the law requiring a government official/civil servant to remain apolitical is a total misconception as the defendant is not a civil servant.
‘Robbing the Country Blind’
The lawyer said, “Although the idiomatic comment posted online by the Defendant hardly meant anything, at the time of posting it, than giving a befitting reply to other online comment, yet the Plaintiff took it in every literal sense of the word “robbing” and its plaint had demanded the Defendant to establish as to how DPT, during its last five year of governance, had virtually robbed the country blind.”
The defence said that it is compelled, under the circumstances, to recite following facts, reported by credible print media and other public debate forums, to establish how truly the plaintiff had robbed the country of its economic self reliance, created excessive debt burden, floundered the essential rule of law by willfully violating laws to get its own vested ways, promoted corruptions in every possible ways, disenabled law enforcement offices to bring corrupt DPT members to justice and, finally, committed acts of seditions against the very TSAWASUM that has nurtured their formation into a political party.
Citing a series of economic data on debt, fiscal deficit, rupee crisis, credit crunch and growth the defendant accused the DPT of distressing the national economy and self-reliance endeavors.
The defendant also pointed out the ineffectiveness of an expensive McKinsey report, DPT Ministers perks and privileges in the form of Wagon-Rs, servants, medical services and etc outside the scope of existing laws.
“Further, still unquenched of their fiery greed by the above takings, the ministers of the Plaintiff government took home even office computers, laptops and stationary items that were, in fact, public property at the end of its five year ruling tenure,” said the defendant.
The lawyer said that the DPT government had adopted policy and projects to favor select few against the general rules of equity and social justice. It gave the examples of Education City Trowa Theater, Denchi Land Compensation Rates, BHEL Commission issue, stopping the OAG from prosecuting Gyelpozhing and Bhutan Lottery Scam.
Usurping Royal Prerogatives and Sedition
As further justification of Dasho Benji’s statement the lawyer accused DPT of usurping Royal Prerogatives and engaging in Sedition.
The lawyer said that the Plaintiff ’s government audaciously usurped the very Royal Prerogative of Kidu when its President Jigme Y. Thinley, as the then Prime Minister of the country had reportedly allotted a government Land cruiser Prado as a “special case” to his former Social Secretary in violation of the Financial Rules and Regulation.
“DPT attempted to usurp the most essential Royal Prerogative of granting land kidu to the needy citizens of the Kingdom by introducing new land bill during the 9th session of the National Assembly in 2012 that proposed to vest in the Cabinet the very Royal Prerogative of the King to grant land kidu to the Bhutanese people,” said the lawyer.
In a reference to the 19th July 2013 meeting of DPT in Thimphu the Defendant said that it believes and shall have the onus to prove and establish, under Section 331 of the Bhutan Penal Code 2004, that the Plaintiff has committed the offence of sedition against the King, Country and the People.
The lawyer requested the Court to order the Plaintiff to execute Bah under Section 91 of the Civil and Criminal Procedure Code on the term that the Defendant shall prove beyond reasonable doubt of the fact that the Plaintiff, DPT, is a seditious political party failing which the Defendant shall pay a damage amount of Nu. 75 mn and serve imprisonment term as the honorable court may determine commensurate for the failure to prove the offence of sedition.
However, if the Defendant proves the commission of sedition by the acts and words of the Plaintiff, then the Plaintiff shall pay to the Defendant a compensation amount of Nu. 75 mn for defaming his credibility and reputation within ten days of the final court judgment and all its party executive members, as it stood on the DPT meeting held on the 19th of July 2013 in Thimphu, be liable for the commission of sedition against the TSAWASUM.
The Judge said that the charge of sedition will not be allowed as part of the ongoing defamation suit. He instead advisedthe defense counsel that a separate suit may be filed on the issue of sedition commission.
The Judge was also negative on the issue of DPT usurping royal prerogatives- relating to the Prado case and the Land Bill introduction in the parliament.
The representative from DPT, MP Ugyen Wangdi said that under the law, all people are treated equally and so the matter should be dealt according to the law.
He said that it was not Dasho Benji who was defamed but the application in court said that DPT was defamed.
MP Ugen Wangdi said that if a Political party cannot put an application in court, the there should be changes in that law. He said DPT had put its application according to the law.
He said that all people have fundamental right but there are certain limits to those rights. DPT will present their views on the 6th of November.