The Office of the Attorney General on 3rd June issued a 3-page press release titled ‘Freedom of Speech and Rule of Law,’ giving its view on freedom of speech, defamation, the Penjore case and its own powers.
The highly legal language of the release soon had many people scratching their heads, but a closer look showed several controversial assertions and interpretations that can have a far reaching impact on freedom of speech and the OAG’s own powers. The paper sought out experts’ views and also drew upon an important 2008 judgment to fact check the OAG’s assertions.
OAG’s power to initiate and withdraw cases
The most controversial assertion was right in the end where the OAG said that the Attorney General (AG) has a ‘higher responsibility as the Chief Legal Advisor and Representative of the State to not remain ignorant when there is knowledge of crimes being committed.
It said the AG can initiate any case in accordance with the law. The release quoted Article 29 (5) of the Constitution which mentions that the ‘Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law.’
Using the above argument, it justified the action of the AG in the Penjore case saying it is not ultra vires.
A legal expert who is a lawyer by profession, on the condition of not being named, challenged this assertion.
The legal expert said the above power was given under the Constitution to the OAG to be able to fulfill its basic function to prosecute cases otherwise the OAG would not be able to prosecute any cases sent to it by the ACC, RBP and others.
He said only the Judiciary or courts have suo moto powers to get a case registered and prosecuted and not the OAG. He said the only way for OAG to prosecute cases is to take up those cases sent to them by agencies or with clear instructions from the government in case of government cases.
The legal expert said that the OAG appears to be filing a class action lawsuit against Penjore which is not allowed as a class action lawsuit is only allowed if the people being represented by the OAG or any lawyers have complained and agreed to file a joint suit.
He said that the various other institutions and figures alluded to have not filed complaints so there is no way a case can be filed on their behalf.
He said the other possibility is a Public Interest Litigation by the OAG, but here again it fails on two grounds as the Supreme Court as of now does not allows PILs and the second ground is that the Penjore case is not a PIL case.
The lawyer pointed out that the OAG cannot be the complainant and prosecutor at the same time as this is a conflict of interest.
The legal expert said that even for the ACC it can only prosecute cases on its own as per section 128 (3) of the ACC Act which says ‘The Commission may carry out its own prosecution of a person charged with an offence under this Act or take over the prosecution process from the Office of Attorney General when the case is: (a) Delayed without a valid reason; (b) Manipulated; or (c) Hampered by interference.”
The expert said even with this section in the Act only a court can grant the ACC power to prosecute cases on its own once the court is satisfied if one or all of the above conditions are met.
Judiciary does not need protecting and drawing a line
A judiciary expert, also on the condition of anonymity, said that only the Judiciary has the powers to file a case on its own and prosecute it. He said that a case cannot be filed on behalf of others without a complaint.
He said in the initial press release the OAG talked about Penjore defaming the judiciary but here the judiciary does not require defending as it had far more powerful contempt powers under which it can imprison a person for up to one year for contempt.
He said, furthermore, while judges should not be criticized personally people have the full right to criticize judgments.
The judiciary expert said that if the OAG is going to file cases on behalf of agencies without a complaint then where will it draw the line.
He said this will increase the case burden on the state as the OAG could then be chasing very remark made on social media against every agency in Bhutan. He said for example if tomorrow somebody makes remarks against BAFRA online then would the OAG file a case there too.
The judiciary expert said that the right to prosecute certain cases and drop cases is an important power and so there must be standards and a prosecution policy, otherwise cases cannot be taken up and dropped on the whims and fancies of people holding office.
One important aspect of the Penjore case is his 16-day detention during the case investigation.
Here the OAG cited the Civil and Criminal Procedure Code which allows for detention for up to 49 days for cases and 108 days for more serious cases.
Here the legal expert opined that this is the first defamation case where a person has been locked up. He said the case is essentially about Penjore a private individual writing against the AG on facebook.
The expert said that for any defamation case to even be filed there has to be some proof that defamation has happened and based on that proof a charge sheet is done in court. The legal expert pointed to three past defamation cases where the accused were not locked up.
The first was filed in 2014 by DPT against Dasho Benji Dorji (Paljor J Dorji) for a facebook remark. Here Dasho did not have to undergo any detention.
The next one was filed in 2016 against the former BBS anchor Namgay Zam by ‘Ap SP’ again for a post on facebook and here too there was no detention involved.
The third example is the 2017 defamation case of former Mr. Bhutan Sangay Tsheltrim for making certain comments in a facebook live video against the Bhutan Bodybuilding and Weightlifting Federation and a proprietor of a private school in Thimphu. Here again there was no detention.
The legal expert said the problem with locking up Penjore for 16 days is it sets a precedent where a person filing a defamation case can ask the RBP to lock up the other person while the defamation investigation is on. He said this should not be allowed to happen as the person claiming to be defamed should produce the evidence or the grounds of defamation to the RBP instead of asking the RBP to lock up the person and then hunt for evidence.
The post and defamation
The OAG press release says that the defense of freedom of expression when it comes to online defamation has been gravely misconstrued and ‘sow the seeds of distrust and suspicion on enforcement of laws in the country, undermining the Rule of Law and Principles of Due Process and Natural Justice.’
However, here the legal expert said that he had carefully studied the 4th May post of Penjore Penjore and it according to him does not live up to section 307 which says a, ‘A defendant shall be guilty of the offence of defamation, if the defendant intentionally causes damage to the reputation of another person or a legal person by communicating false or distorted information about that person’s action, motive, character, or reputation.”
He said the post actually asks a series of questions of why charges against senior BNB officials were dropped and asks the media and the ACC to look into and asks the AG to step down till the investigation is over and resign if found guilty. The legal expert says the post does ask the AG to resign and has other criticisms but he said here the AG is a public figure and he should expect a certain degree of criticism.
The legal expert said the post is more about asking questions and asking for an investigation than transmission of ‘false or distorted information.’
The legal expert said the questions asked by Penjore qualify as bonafide statements in the public interest.
Truth as the ultimate defense against defamation
The OAG citing the Juristic Principle of Law said that even if there is the existence of truth, it cannot overrule liability if there was intended malice involved while filing purported information, for the law provides that one can always redress one’s grievances through the normal procedure or formal course of appeal to the lawful authorities and not necessarily through such online platforms.
However, the above statement was shot down both by the legal expert and the judiciary expert as they said that truth is the ultimate defense against defamation no matter what the platform.
The OAG while citing the freedom of expression and other rights under Article 7 of the Constitution said that nothing in Article 7 shall prevent from subjecting reasonable restrictions by law, when it concerns interests of sovereignty, security, peace, stability of the nation, friendly relations with foreign states, incitement to offense on grounds of race, sex, language, religion, region, disclosure of information in affairs of the state and rights and freedom of others.
However, here the Judiciary expert said that the reasonable restriction just cannot be cited like that as they have very high standards and requirements to be fulfilled in order to limit a person’s fundamental rights.
2008 High Court Judgment precedent
The OAG despite its lengthy press release may run into trouble given the precedent already set by the 2008 defamation case of Lyonpo Yeshey Zimba, Lyonpo Wangdi Norbu and Aum Sangay Zam using the OAG to file a defamation and sedition case against lottery agent Sangay Dorji.
The Thimphu district court delivered a judgment in July 2008 in which it not only dismissed the OAG but also laid down certain principles and guidelines for future defamation suits.
This was again upheld by a full bench of the High Court in December 2008 which found the judgment to be fair and reasonable. It must be remembered that there was no Supreme Court at the time and the High Court was the highest court of appeal.
Dr Venkat Iyer, a senior lecturer in the school of law, University of Ulster, who did a paper on this judgment in the Journal of Bhutan Studies said that both the judgments going beyond the standard requirements applicable in most Anglo-Saxon countries asked for two more conditions to be fulfilled by the prosecution before they can get a conviction.
The first is that if the person aggrieved by the alleged defamation (the complainant) is a public figure, the prosecutor must prove that the person or persons responsible for the defamation (the accused) acted with actual malice; and secondly that prosecutor must further prove that the accused knew that the statement in question was false when he made it.
The judgment made it clear that not only were the two ministers public figures but so was Aum Sangay Zam who was then the Director of Revenue and Customs.
The jurisprudence adopted by the court points out that public officials enjoy lesser protection of their reputation since they are routinely exposed to public opinion because of their public profile.
Venkat’s paper pointed out that one of the particularly controversial aspects of the Sangay Dorji case appears to be the involvement of the OAG in launching the prosecution – and the subsequent appeal – which led to the two court judgments.
The OAG acted on the basis of a directive issued by the Cabinet Secretary, but this came in for some criticism by the courts. The judges noted that, although the Attorney-General has a “special responsibility to be a guardian of rule of law, which include guardian of the public interest,” his responsibility for individual criminal prosecutions “must be undertaken on strictly objective and legal criteria, free of any political considerations and independent of the traditional cabinet decision. Any deviation would lead to dysfunction of the democratic process and will be becoming more pronounced in the near future. No prosecution of this nature may be initiated in the court at the cost of the public purse.”
The High Court reportedly endorsed this view and suggested that “such cases should not be represented by the OAG and left to the aggrieved individual.”
The basis for this finding was that the alleged defamatory statement did not materially affect the reputation of the Revenue and Customs Department of which the aggrieved person, Sangay Zam, was at the relevant time the Director.
Venkat Iyer said that quite clearly, this is a matter which deserves serious consideration.
Venkat said that where public expenditure is involved, it is important that the highest standards of probity are adhered to.
He said, for this reason, it would be desirable if proper norms and guidelines are framed about the extent, and the manner of exercise of, the Attorney-General’s discretion in such matters.
These norms and guidelines should have regard not only to the peculiar needs of Bhutanese society but also to best practices in other democracies, he added.
By the above standard if the AG feels he is defamed he should file a private case instead of using the entire OAG and public expenditure.