The Anti Corruption Commission’s move to register the Gyelpozhing land case with the Mongar Dzongkhag Court shows that the Gyelpozhing case is far from over. It also put’s to question several of the OAG’s controversial legal arguments in dismissing the case.
Many legal experts and even the ordinary Joes on the street still find it hard to swallow the OAG’s generous and all forgiving legal opinion.
The fact that ACC’s has stuck to most of its original charges in the charge sheet filed in the Mongar dzongkhag court is evidence that ACC is firmly convinced that there is a case and that the OAG was wrong.
So far legally the people involved in Gyelpozhing have been lucky at two levels.
At one level even though ACC has done a sterling job, there are many who feel that the ACC’s original case itself could have brought in stronger and additional charges against not only the Dzongkhag plot allotment committee members but also some recipients like officials in positions of conflict of interest. It is difficult to imagine how ministers in the cabinet in some cases heading the very agencies committing the illegal acts and also being its beneficiaries cannot face charges themselves.
ACC’s response has been that many of the earlier legal provisions on this issue cannot be applied conclusively or the legal provisions were not there at all at the time for e.g. in cases like conflict of interest, abuse of privileged information etc. ACC, however, is open to the courts bringing in additional charges if they are found in the process of legal interpretation in court.
In a legal sense the people involved are lucky that much more refined laws of today like ACC Act and Bhutan Penal Code are not applicable due to the laws not being in force at the time.
If ACC took a very conservative view of the old legal provisions or if the above laws could be applied many especially serving ministers at the time would also be culpable for conflict of interest, misusing privileged information, abuse of power and etc.
The second time those involved in the Gyelpozhing case got lucky had more to do with a legally flawed and highly favorable interpretation by the OAG.
If the legal principles are not clearly laid out, defended and protected then the Gyelpozhing case will have far reaching repercussions. In short it will mean that all committees and authorities using some fig-leaf excuses can go beyond their authority to benefit the powerful with no legal consequences.
Recently, Ministers involved in the case declaring that they would be returning their land to support ACC is a controversial move in many senses.
At one level the ministers should be appreciated for giving up claims to land which even a few years back was already worth around Nu 200,000 per decimal.
However, as pointed out by legal experts and the Opposition Leader the ministers are legally in no position to give the land back as the ACC has already frozen the plots and it is only the court that will now decide to whom the land has to go.
This issue also raises the mainly ignored issued of the ethics and morals of the Gyelpozhing case. In a nutshell the case is a land committee taking away the land rights of eligible allottees, giving land to some ineligible and powerful people including their bosses, and also giving away government land across the river that was never meant to be given.
For a leadership, that won the 2008 elections partly on the land grab plank, that espouses high moral principles, enjoyed power in the present and past, whose duty it was to serve the people then and now, and who declared a zero tolerance on corruption, the Gyelpozhing case comes not only as a legal question but also as a serious moral and ethical question.
Those who think that the Gyelpozhing case is dying a natural death couldn’t be more mistaken. If the natural principles of justice were allowed to take its path the case would have probably been over even before elections giving a sense of closure and perhaps justice.
However, the nudges and winks, strings being pulled, and pushes and pulls have only ensured that Gyelpozhing is not just a land case anymore but a case that asks much more fundamental questions of us, and has become that much bigger in the public consciousness.