MoF to define ‘Emergency need’ after Lhakhang Karpo verdict

2The Ministry of Finance (MoF) will now sit down to define ‘Pressing and emergency personnel need,’ mentioned in a 13th December 2000 circular issued by it.

The Supreme Court on 28th July 2016 acquitted MP Rinzin Dorje of embezzling public property and not violating the 13th December 2000 MoF circular that allows civil servants to use vehicles for ‘pressing and emergency personnel need.’ The judgment said the Rinzin Dorje is liable for only administrative action.

A major reason for the acquittal of the Former Foreign Minister was that apart from the one page circular there was no definition provided for ‘‘Pressing and emergency personnel need’ for the use of vehicles.

A senior MoF official on the condition of anonymity said that defining this term will provide legal clarity.

The MoF on its part wants to also ensure that public servants have a more clear idea of pressing circumstances when government vehicles can be used and cannot be used.

The Office of the Attorney General (OAG) had asked the Supreme Court to also define ‘emergency’ which the court refused to do.

The court instead in its verdict said that the Ministry of Finance should define ‘Pressing and emergency personnel need’, come up with the relevant rules and regulations and then publicly notify them.

It has been learnt that next week the OAG will be sending a letter on the issue to the Ministry of Finance informing it of the SC verdict along with a copy of the verdict. It will then be up to the executive branch of the government to come up with the appropriate definitions and relevant rules.

The OAG in its arguments had submitted that the construction of a planned house cannot be seen as an emergency. The former Foreign Minister as Haa Dzongda had transported timber nine times in the Dzongkhag DCM. While he had fuel receipts the ACC in its investigation while acknowledging certain fuel receipts also pointed out that some fuel receipts were missing while some were not relevant.

The District court initially acquitted the Foreign Minister of misusing the DCM based on the circular produced by the ex-Foreign Minister as part of his defense and only asked him to pay Nu 4,166 for not being able to produce fuel receipts of that amount. The District Court also acquitted him of any illegality in the timber sawing tender award.

The OAG did not appeal the timber sawing tender award due to the appearance of the second evaluation document signed by eight members that was also the main reason why Rinzin Dorji was acquitted by the Haa Dzongkhag court.

The whole issue was complicated by the fact that even though the ACC had the second evaluation document, it did not submit it to the OAG while fighting the Haa court, and as a result the OAG had no idea such a document existed. What made matters worse is that the document fundamentally altered the strength of ACC and OAG’s case in court.   Initially the ACC told the OAG it did not have such a document but later said it had missed it while submitting documents to the OAG. The document only emerged from the defence when another defendant Project Manager Wangchuk Tshering was defending his case.

At the time there was strong apprehension within the OAG that due to this mistake by the ACC the former Foreign Minister after being acquitted by the Haa Dzongkhag court and having a strong evidence in his favour, could also charge ACC and the OAG in the High Court with withholding that very evidence crucial to the timber sawing tender case in the High Court.

The OAG as a result only challenged the DCM misuse acquittal in the High Court. The High Court in turn went into the doctrine of emergency and said it was not an emergency case. The court convicted the Foreign Minister for one year or payment of Thrimthue of Nu 45,000. It asked the MP to pay Nu 111,640 in fines and misuse amount for misusing the DCM.

The High Court verdict meant a criminal conviction and so the MP was set to lose his Parliamentary seat based on Article 23 section 4(c) which says “A person shall be disqualified as a candidate or a member holding an elective office under this Constitution, if the person is convicted for any criminal offence and sentenced to imprisonment.”

Unsatisfied with the High Court verdict the former Foreign Minister filed an appeal to the Supreme Court on the issue.

Given the huge public interest there has been a lot of public response to the case on various forums including the social media.

While there are some expressing sympathy for the Former Foreign Ministry who had to resign from his minister’s post over the case, there were many more who not only questioned the Supreme Court verdict but also said that this leaves the room open for vehicle misuse.

The Anti Corruption Commission also expressed concern over the verdict while saying they would respect the verdict.

Meanwhile The Bhutanese talked to a legal expert from within the Judiciary who has also studied the judgment in detail.

The legal expert from the Judiciary said that the Former Foreign Minister was acquitted by the Supreme Court primarily due to the lack of clarity by the 2000 MoF circular and its lack of definition of ‘Pressing and emergency personnel need.’

He said, “If the court is to define emergency as per the OAG’s request then the Judiciary would have to get into the business of the Executive arm and come up with even rules and regulations around that definition.”

The OAG according to the verdict had requested the Supreme Court to come up with a guideline to curtail misuse of pool vehicle.

The legal expert said it is the job of the executive to come up with a proper definition with the proper rules around it, apply it uniformly and approach the court only when such rules are violated.

He said that if the Supreme Court was still to go ahead and prosecute the former Foreign Minister then it would have opened a legal ‘Pandora’s Box.’

“By this standard every deviation will be vehicle misuse and then everybody in the government at all levels as per the principals of natural justice will also have to be similarly charged leading to termination of most government employees,” said the expert.

The legal expert said the Supreme Court had an option of setting a precedent that would have meant getting into an unclear executive domain and also allowing for the potential legal prosecution and termination of most public servants.

He said the other and more commonsense option was to ask the executive to come up with proper definitions and rules and then apply the law as per those definitions and rules.

“The Supreme Court went with the latter option and now the onus is on the executive to come up with strong and binding definitions and rules,” the expert from the Judiciary said.

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