The ‘Penjore Penjore’ defamation case will be one of the biggest tests of the credibility and wisdom of the judiciary in recent times.
This is because the Office of the Attorney General (OAG) wittingly or unwittingly has made the Judiciary the main victim in the case alleging that Penjore has defamed judges and the institution of the judiciary, and yet the same judiciary is now supposed to sit in judgment over the case where it has been made both a victim and party by the OAG as its uninvited defender.
OAG’s release and complaint makes Judiciary a victim
The main accusation against Penjore and justification for legal action against him in the 6th May press release of the OAG has to do with ‘defamatory posts…against public officials and institutions of repute that fulfill judicial, quasi-judicial, and other functions including the OAG on Facebook.’
The release also says, ‘The accused has been making contemptuous comments maligning the Judiciary, the reputation of the Judges, besides other officials from reputed institutions.’
It also says that ‘he was warned by the court in 2015, that contempt proceedings would be initiated against him if he continued to make unsubstantiated allegations…’
The OAG says that Penjore’s posts ‘falls within the purview of defamation, libel, contempt of judicial authorities and other charges…’
Apart from the above, the OAG in its complaint to the Royal Bhutan Police (RBP) also mentioned the defamation against the judiciary as one of its main complaints with print outs of facebook posts that Penjore had made over the years.
From the above it is clear that the OAG has not only made itself the complainant and the prosecutor but it has also made the adjudicator in this case –which is the judiciary, a victim and party to the larger case.
This then begs the obvious question of if Penjore can expect a fair trail with not only his prosecutor claiming to be the victim but also his adjudicator being shown as a victim.
Judiciary has to proceed carefully says legal expert
“Penjore is now a sitting duck,” said a legal expert who is an experienced lawyer and did not want to be named.
“How can the supposed victim in this case which is the judiciary become the judge and adjudicator in the case,” asked the legal expert.
He said that in other countries in cases where the judiciary is a party then a panel of retired judges or even eminent jurists are appointed to decide the case. He said there is no such procedure in Bhutan.
He also gave the example of international human rights cases where the judges are flown in from different countries to ensure a fair trial.
The legal expert said that the judiciary has already made the first mistake of giving an extraordinary 16-day remand for a petty misdemeanor defamation case which does not involve imprisonment even on conviction. A case where the judiciary has also been allegedly defamed.
Here, however, the legal expert said it is also possible that the court had been misinformed or more serious charges had been mentioned while asking for remand based on the OAG complaint.
However, the RBP investigation only found defamation and libel which is a petty misdemeanor charge.
The legal expert said that from here on the judiciary will have to proceed carefully as its very credibility could be at stake in the public eye. He said that the judiciary will have to avoid the impression that it is taking ‘revenge,’ on Penjore.
The legal expert said that before democracy an institution like the Royal Advisory Council (RAC) could have taken up a case like this now but it is no more existent.
The expert said that the Parliament may have to look at the relevant provisions to put something in place when cases like this involving the judiciary comes up.
Senior Official from SC says nobody needs to act on behalf of Judiciary
There is already a degree of concern in the ranks of the senior judiciary on how this case is playing out and its implications on the judiciary.
A senior official from the Supreme Court (SC), on the condition of anonymity, said the case has not yet come to court and it will all depend on the legal charges set and after that the judiciary will takes its own stance. He said he does not want to preempt anything right now before the charges come in.
However, the senior official sharing what he said were his personal views said, “If judiciary is being made into a victim the judiciary can act on its own, and so why should somebody act on behalf of the judiciary which means that the judiciary did not feel that it has become a victim of the Penjore case.”
He said if the judiciary is being made into a victim then when an individual can take action, the judiciary as the whole institution and a solid arm of the government has every teeth and strength to act on its own.
The senior SC official said, “Why should somebody act on behalf of the judiciary and why should somebody think the judiciary has been victimized to make their own case.”
“Let the case come first and then we will see and accordingly act,” said the senior official.
He said judiciary already has enough powers under contempt proceedings.
The senior official said that people have every right to make noise with freedom of speech and so if the judiciary is to react to every release in the press or social media comments then there would be no end, and even if one reacts then one will not not even be able to finish reacting.
The senior Supreme Court official said the judiciary has to close one ear and one eye to such comments otherwise there will be no end to it in a democratic set up.
He said the institution as a whole will have to take a stand once the case comes on whether to accept it or dismiss the case or do something else.
The senior official said that the judiciary is the final interpreter and guardian of the Constitution.
He said that normally when there is a conflict of interest at the district court between the litigants and the judge then the case is sent to appellate or high court but in this case it is not possible as the conflict of interest is with the judicial institution as a whole.
However, the senior official said that the judiciary will have to take up the case and cannot back out citing conflict of interest as it has to give redressal to grievances.
He said that currently there is no Standard Operating Procedure (SOP) and process to deal with a case like this, but he said ‘necessity is the mother of invention.’
Judiciary expert says case will have to follow 2008 precedent
A judiciary expert, who also did not want to be named, said that the judiciary will have to take a look and see on what basis and capacity the OAG is filing the case on behalf of the judiciary.
Like the legal expert, he also said this is an issue that the Parliamentarians would have to look at once.
The judiciary expert said that such a case could set a dangerous precedent and so there will have to be proper guidelines otherwise things can go haywire.
The expert said that if the institution of the judiciary is actually damaged or hurt through defamation then the process is for the Chief Justice of the Supreme Court to ask the Registrar General of the Supreme Court to file a case on behalf of the judiciary.
He said if it is a civil defamation case then the RG can prosecute it to get compensation and if it is a criminal defamation case then it will come to the OAG to prosecute it for conviction. He said this is the proper system otherwise with the current case it looks any anyone can file cases on behalf of the judiciary which should not happen.
The expert said that the main question is the locus standi of the OAG in this case as the AG should ideally be filing a private case since the remarks are against him.
He said if the AG claims the entire OAG has been defamed then he will have to prove how that has happened.
The judiciary expert said that the judiciary will have to go by the precedents by the 2008 defamation and sedition case of the lottery agent Sangay Dorji Vs the OAG representing Lyonpo Yeshey Zimba, Lyonpo Wangdi Norbu and then Revenue and Customs Director Aum Sangay Zam.
The case had been dismissed by the district and high courts saying that public figures have lesser protection of their reputation due to their public profile, the DRC institution was not defamed and that the OAG should not take up individual cases.
The Judiciary expert said that at the end of the day the AG is accountable to the Prime minister who nominates him and can remove him and if the PM says the AG does not require his permission then he is giving him a free hand and may have to bear some of the fallout from this case.
Penjore wants a fair trial
In the meantime, Penjore said that he cannot get a fair trail unless the AG charges him in a private case , which he stands ready to defend, instead of using the entire OAG and the second issue is that the OAG should stop mentioning that they are suing him for defaming the judiciary when the same judiciary has to judge the case.
Penjore said that OAG’s press release mentioning a 2015 warning from the court should have mentioned that the judge in question was the current AG Lungten Dubgyur as the then High Court judge. Penjore said the fact is that the OAG in mentioning this shows that there is an element of personal vindictiveness on the part of the AG in pursuing this case using an incident from his former position. He said he never got the warning letter officially from the court.
Penjore said that he will be fighting the case on his own.
One way out for the OAG, despite its press release, complaint and the RBP investigation, is it can choose to not charge Penjore for defaming the judiciary, but even in such a scenario the on the record public accusations of the OAG in the above documents have already made the judiciary a party to the case.
The Bhutanese tried its best to reach out to the OAG but the AG earlier made it clear that he will not speak to this paper. This reporter’s mobile number has also been blocked by the AG. The paper then tried contacting up to five OAG lawyers but none of them responded.