In what may come as a bolt out of the blue, especially for those contesting as candidates in the 2013 elections, the Mongar District Court Judge Gyembo Dorji told The Bhutanese that even those who received plots in Gyelpozhing are criminally charged. He said this was because the case of 71 plots of land is criminal and not civil in nature.
This would mean that the sentencing of the case would come out as a criminal case verdict.
Until recently with all the focus on the former Speaker, Home Minister, and 13 Plot Allotment Committee Members, it was widely assumed, interpreted and even reported that the case against the high profile recipients of 71 plots were civil in nature.
The direct and potentially major impact of this could be on the candidacy of former Prime Minister and the Druk Phuensum Tshogpa (DPT) president Jigmi Y Thinely, former minister Yeshey Zimba, and also the Druk Nyamrup Tshogpa (DNT) vice president Jigme Zangpo.
This is because all three politicians have been named by ACC as having accepted plots in Gyelpozhing, given in their past capacity in 2001-2002. The politicians, if found guilty, will be criminally convicted of accepting illegal plots.
As per the Constitution Article 23 section 4.C states that, “A person shall be disqualified as a candidate, if the person is convicted of any criminal offence and sentenced to imprisonment.”
Section 179 a. of the Election Act says, “A person shall be disqualified as a candidate if he/she: has been convicted for any criminal offence and sentenced to imprisonment.”
The Judge clarified that even though the cases were criminal in nature, they in all probability not involve any imprisonment, as anybody could apply for land, but it was up to the allotment committee that gave the land and thus violating laws. He, however, said that cases and hence the convictions would be criminal in nature.
“The case is criminal for two reasons. One is that any case prosecuted by the state, which in this case is the ACC against an individual becomes criminal in nature. The other reason is that Section 46 of the Penal Code of Bhutan on restitution is applicable here,” said the Judge.
Section 46 says, “When the defendant is convicted of an offense, any property constituting the criminal proceeds, any weapons or articles used for any benefit or any benefits derived from such offence shall be subjected to confiscation or recovery.”
The Mongar Court which gave its verdict on the legality of the plot allotment committee and its Chairman’s decisions was supposed to give a separate verdict on the legality and restitution of the 71 plots.
The Judge, however, explained that for a verdict to be passed, the prosecutors, which in this case are the ACC would have to also be present. “Dasho Neten Zangmo had written at the time saying that her officials would be busy in the High Court with the Gyelpozhing, and would not be available to come to the district court,” said the Judge.
The Judge said that he will only know about ACC’s availability after the 10 day appeal process is over.
He said that further delay in the district court verdict was likely if the litigants appealed to the Supreme Court as the ACC would again have to litigate in the Supreme Court.
The Judge indicated that the verdict on the 71 plots, in all likelihood, would follow the guilty verdict on those who allotted the plots.
“If the plot givers are themselves found guilty, then it would follow through systemic deduction the plots are fruits of a poisonous tree,” said the Judge.
He, however, said that there were various types of plots and the court would have to examine each of them as per the criteria.
He said it may even be a complex procedure as in some cases the plots had been sold several times over, and in some cases even structures had been built on the land. “Those found guilty will have to compensate the buyers,” he said. The Judge said that compensation for built structures would also have too looked at for those who built on such plots after buying them.
The three candidates, though in the danger zone, still have some hope mainly on two grounds. One would be that if the ACC is unable to come before the Mongar District Court, the verdict could be delayed beyond the elections. The second hope is that even if the plots are found to be illegal, they in all likelihood would not get prison sentences, allowing them to argue that though convicted in a criminal case they have not been sentenced.
The Chief Election Commissioner Dasho Kunzang Wangdi said that the election laws are very clear. He said in the primary round the candidates need to only prove that they are registered voters, have been nominated by their party, and are graduates.
He said it was only in the final general elections round when the legal and other details of the candidates like NOC and various other clearances were sought. “We will know at that time,” said the CEC.
Tenzing Lamsang / Thimphu