Says no laws were violated and there is no legal basis to pursue the case against anyone
Twenty days after the Gyelpozhing land case investigation report was submitted by the Anti-Corruption Commission (ACC), the Office of the Attorney General (OAG), in its ‘opinion’ found no legal basis to pursue the case through court.
Considering its importance and urgency OAG’s ‘opinion’ on the high profile case has been ascertained after fifteen days of reviewing the case by five lawyers, none of whom had any association with the case related individuals. A nine-page document was posted on the OAG’s website.
Earlier the ACC in its report had said, “The Plots Allotment Committee undermined the rule of law and the principle of due diligence, fairness, equity, transparency and check and balance. Most of the members acquired plots in the names of their spouses/relatives, while people who lost their land for the township development were deprived of land even upon repeated request to the Dzongdas.”
In addition to that land which was not part of the town plan and not meant to be allotted was given away in acres. This whole act according to ACC was committed by violating various laws and procedures which included Thrimzhung Chhenmo, Land Act of Bhutan 1979 and Penal Code of Bhutan.
ACC based on its more than one year long investigation declared 67 of the 99 plots to be illegal.
The OAG report says that on the issue of the legality of the Gyelpozhing plot allotment committee and its decisions were in not in contravention of any law.
With regard to ACC’s allegation that the committee had introduced additional criteria during the allotments with presumption that this has been done solely for the benefit of certain section of the public, the OAG said that unless the committee had prescribed criteria and acted in ways that were contrary to the objective of the circular, it was within the powers of the committee to lay down additional criteria as may be deemed necessary.
On ACC’s charges of forgery and deceptive practice against the chairman of the committee 1999-2002), National Assembly (NA) speaker Jigme Tshultim, Mongar Dzongda at the time, attorney general’s observation is that the facts of the case failed to correspond to the legal provisions cited by the commission for criminal sanction.
The commission had cited NA 1-2 of the 1953 Thrimzhung Chhenmo, which pertains to forgery of signatures and making fake documents and seals.
In the NA speaker’s case, OAG’s opinion was that the beneficiary of the plot, against whose name the application he allegedly signed, was in fact the beneficiary himself.
On charges against the NA speaker for sale of government land, based on KA6-20 of the 1979 Land Act, the OAG opined that it doesn’t bar an empowered authority of the government such as local government authorities to engage in such transactions.
Another charge against the speaker by ACC was for illegally registering plots under KA 12-10 of the 1979 Land Act. The specific provision states, the person who acquired through deceit someone’s land for sale to a third individual, would be liable to pay the government that amount.
The OAG’s opinion is that the provision was irrelevant to the Gyelpozhing land case, as it pertained to illegal land registration between two private individuals and not between a legal government entity and private individuals.
In the OAG’s opinion the charges leveled against the plot allotment committee members failed to correspond to the legal provisions.
According to OAG, charges against Lyonpo Minjur Dorji of official misconduct as the then Mongar Dzongda under the penal code did not merit prosecution, because of lack of evidence to prove criminal intent to derive personal gain.
On the issue of illegal allotment of plots from government land on the right bank of Kurichu, OAG said that it was under the control of the Kurichu project and handed over for township development. The OAG report says “the question of the committee illegally allotting plots from outside the township area does not arise.”
With respect to ACC’s question on allotment of different sizes of plots, the OAG stated that there are no laws that prescribe uniformity in size of urban plots, commercial or residential for any township across the country. The matter, the report stated, was usually in the discretion of concerned authorities, based on specific plans and local circumstances.
ACC’s report reflected 67 of the 99 plot beneficiaries were illegal; the OAG’s opinion states the beneficiaries of the plots are not guilty of any crime, having been allotted plots by a legally constituted government authority.
It stated that procedural requirements were followed and payments for the plots as charged were made by the beneficiaries and that the onus of establishing the legality of plot offers does not lie with those applying to buy the plot.
OAG wrapped up stating that there is no legal basis for restitution of the 67 plots or repayment of fines. Actions whether to seize plots of those who failed to build on allotted plots, within stipulated time, OAG stated is an option for the government to exercise, including getting refunds from those, who availed the kidu of timber.
OAG said in a press release that no case of land grabbing was found and acquisitions were carried out fairly in accordance with the laws and the prevailing practices at the time by the government. It also stated that there is nothing substantive in the ACC investigation findings that establish influential people as having misused power and authority to avail plots.
In its recommendations, the OAG advised that the government take appropriate administrative actions against members of the committee as deemed necessary.
A legal expert in the capital said that The Bhutanese talked to said that under the ACC Act the ACC can take over the prosecution of the case if it is not satisfied with the OAG report.
Another senior legal expert said, “It is not the business of the OAG to declare people innocent as it is for the court to say so. OAG should have charge sheeted the case and let the court come to a decision if laws were violated or not.”
“This case at the current rate will undermine democratic institutions and also the very necessity of law,” said the senior legal expert.
A Judge said he wouldn’t be able to comment in detail as the OAG report reflects only the fact that there is no legal basis to pursue the matter through court but no ‘in-depth elaboration’.