OAG investigation in sedition case to await appeal process

However, legal opinions differ on the matter  

The Office of the Attorney General (OAG) will await the appeal process by either the Druk Phuensum Tshogpa (DPT) or Dasho Benji before it starts coordinating any investigation on the prima facie sedition case against DPT.

It is unlikely that Dasho Benji will appeal while a senior DPT MP on the condition of anonymity told this paper that they are ‘looking into the issue.’ DPT would have till the 19th of January to file an appeal.

An official from the OAG, who did not want to be identified, said, “DPT has the right to appeal any aspect of the verdict which includes the District Court directive to investigate it on the prima facie sedition case.”

The official said that if the High Court or the Supreme Court, for that matter, said there is no merit in the prima facie sedition case then the investigation need not proceed. “One cannot be presumed guilty until the final judgment,” said the official.

The official also said that the Royal Bhutan Police (RBP) will not be able to investigate the matter on its own without directions from the OAG to do so.

Meanwhile the Chief of Police, Colonel Chimi Dorji said that the RBP has not received any communication from the OAG on the matter.

Clarifying the legal process the Police Chief said that the OAG is a prosecuting legal agency and cannot directly order or give ‘directions’ to the RBP to investigate any issue unless it is an order from the court to do so.

Colonel Chimi said that the RBP can go ahead if the OAG comes formally with the court verdict or order that specifically asks for a criminal investigation into sedition which only the RBP can do.

The same OAG official said that on the other hand if either party does not appeal then the OAG would have no choice but to proceed with the due investigation process, as it is a court directive and not following a court order would be seen as contempt of court.

As per court procedures the DPT and Dasho Benji have 10 working days from the day of the judgment to appeal to the High Court.

The District Court on 5th January passed a verdict in the Dasho Benji case where apart from allowing DPT to withdraw the case and awarding Dasho Benji Nu 450,000 it said there is a prima facie case of sedition against the DPT.

It ordered to the OAG to direct and coordinate with investigative agencies to investigate allegations of sedition and file appropriate criminal charges.

However, while the OAG has made its legal stand on the issue clear there are differing legal views on the matter with the potential to create a legal controversy of its own.

A member of the Judiciary who is directly not involved in the case but is familiar with it said, “The verdict does not give a timeline so the OAG can take its time, but the OAG cannot give the excuse that it is awaiting the appeal process as the district court order to investigate the sedition allegation has nothing to do with the appeal process. It cannot be appealed for the simple matter that the District Court is not a pronouncing DPT innocent or guilty.”

The member of the Judiciary said, “A potential crime with evidence has come before the District Court. When the Bhutan Penal code itself tells people that it is a crime to not report a crime, then the District court as the guardian of the law cannot ignore the evidence. It has no choice but to take cognizance and order an investigation.”

The member said that the High Court will not say not to investigate the issue as it is not a judgment of innocence or guilt.

The member of the judiciary said that in case of legal confusion on the matter it would be appropriate for the OAG to seek the legal advice of the Supreme Court on the matter.

A legal practitioner also familiar with the case said that the only place for DPT to appeal on technical grounds is on the issue of compensation to be paid to Dasho Benji.

He said, “When DPT has already withdrawn the case from the district court there is no case except for the compensation amount. Moreover, DPT while appealing cannot file a fresh defamation case in the High Court which is a court of appeal.”

The legal practitioner also said that the investigation of the prima facie sedition case has to proceed regardless of the appeal process as it is a separate criminal issue different from the civil nature of Dasho Benji’s case.

He said that the High Court cannot do anything about it as it is not a judgment but only an investigation to find out if there is any truth in the matter. “The High Court cannot say that an investigation should not happen,” he added.

He pointed out that the District Court also had no choice in the matter as it cannot ignore crimes and credible evidences brought before it and so it had to order the criminal investigation to establish the truth.

The legal practitioner also said that the district court is the original jurisdiction where the case was first filed and going by both legal process and international case examples it is usually the court of original jurisdiction that orders a separate criminal investigation if a criminal matter crops up in a civil case.

The District court with regard to the sedition case said that a court in a civil case cannot convict a defendant on criminal charges even if the court knows the crime has been committed. Instead, the court must hand over the case to the relevant authorities for investigation and filing of criminal charges.

This, the district court said, barred the court from conducting further investigation and convicting those guilty.

Therefore, the district court in line with due legal process handed over the case to the OAG.

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