This is after the Parents and their lawyer filed a more detailed complaint on the 4 charges
While the Royal Bhutan Police (RBP) arrested Bhutan Employment Overseas (BEO) agents Tenzin Rigden and Jurmey Tshewang in Thimphu on 30th July for forging bank statements of students and also got a confession from them, there was some confusion on the four other charges by the parents.
Initially, there were reports that the police would not investigate the four other charges of deceptive practice, abandonment of a person in danger, harassment and trafficking a person.
However, following the arrest, the Parents’ Committee lawyer Ngawang Tobgay, on Friday, submitted a more detailed written explanation of the four charges to the RBP and why they would apply as per the Bhutan Penal Code.
He also had discussions with senior RBP officials on the legal aspects of the four charges.
Ngawang said that the RBP has now told him that they would also be investigating all the four charges.
He said that the more detailed document submitted formally would supplement the original complaint.
Ngawang said there was also some confusion but it has now been resolved.
He said, “There was some view that breach of contract is a civil case but I explained that in a criminal case it becomes deceptive practices.”
There was also a view in RBP that since the government had sent the youths through the LEP program it cannot be a human trafficking case.
Ngawang explained to the RBP that if the LEP program was a government to government program between Bhutan and Japan and the students were treated well, then there would be no case.
However, he said that a private party was involved and the students were exploited in many ways. He also pointed out that there is no law which says that a government agency cannot be held liable for being culpable in human trafficking.
On the issue of harassment, the lawyer said that there are very clear electronic evidences of students being threatened and harassed.
The lawyers said that his formal document also elaborated more on the abandonment of a person in danger.
The lawyer said that if the 2013 regulations of Bhutan overseas agents is reviewed then the numerous violations will also become more clear.
The lawyer also pointed out that when the RBP had consulted the OAG over the parent’s complaint the OAG had already elaborated that it is a different case from the ACC one and there is no duplication.
When The Bhutanese contacted the RBP about the four other charges the RBP said that they are still under investigation and more information cannot be revealed at this point.
The Bhutanese managed to access the latest and more detailed document submitted by lawyer Ngawang to the RBP.
The letter says that the BEO agent announced that the Learn and Earn (LEP) program commits to help students of poor background and so most of the students who applied for this program are from humble backgrounds.
It says despite their commitment, in order to convince and seek admissions into various language schools in Japan, the BEO Agent furnished fake Bank Statements stating that the students have enough bank balance.
“The Committee is convinced that the agent has misrepresented the amount with unimaginable figure, and forged the signs and seals of the Bank. Therefore, the Agent is ought to have committed the offence of Forgery under Section 296 of the Penal Code of Bhutan, 2001,” says the letter.
The letter says that before the students were sent to Japan under the LEP program, each of them were made to execute two separate agreements with varied terms and conditions.
It says that the committee after having studied the former agreement came to the conclusion it was made in accordance with the provisions of Evidence Act of Bhutan, 2005. However, the latter agreement had amended terms and conditions in favour of the Agent, and it was executed at the last minute when the students are set to go to Japan.
“The students having gone through all required procedures and having availed loans as per the agent’s instruction and with limited time to analyze the latest agreement, their friends had to sign not only as witnesses but also as the guardians, thereby raising the question of legality,” said the letter.
It says both these agreements promised students that they will be given a decent job as soon as they arrive in Japan, but most of the students did not get the jobs as promised and had to live with inadequate food and shelter for quite some time.
“Secondly, the agent promised to cover tuition fees for the students but most of the students had to bear their own fees,” it added.
It further says the workplaces were not as safe and secure as promised, and there are alarming statistics of students being infected with various diseases and some even had to be referred to hospitals in Japan.
It says the status of students were intimated not only to the agent but also to the Ministry of Labour and Human Resources (MoLHR) for timely intervention, but the responses were never positive.
“Moreover, as per the arrangement, the agent had guaranteed jobs to the students after completing their language courses but again, most of the students could not be employed and they had no alternatives than to return to Bhutan with their own expenses,” says the letter.
The letter points out that the agent knew that students cannot work more than 28 hours in a week, and that this time is never sufficient for the students to repay their loans and to meet their daily expenses. For this, the agent, with prior knowledge, persuaded the students to take up two jobs thereby aiding the students to breach Japanese law, which might pose strong repercussion on diplomatic relations between the two countries.
It says in addition to afore-mentioned issues, there are other aspects of breach of agreement highlighting the issue of violation of basic Human Rights.
According to the letter, the committee said it is of the view that the agent’s commitment in the agreements were not genuine and the program defrauded innocent students with facts being grossly misrepresented. It says making profits at the cost of humble and innocent students raises the question of legality.
“Therefore, the committee is convinced that the Agent committed the offence of Deceptive Practice under Section 309 of the Penal Code of Bhutan, 2001. To this, the committee request Royal Bhutan Police to investigate the matter in length to be charge sheeted before the court of law,” says the letter.
The letter says that on numerous occasions, the students approached the agent and reported their problems. Having no redressal from the agent, the aggrieved students intimated the same to the Ministry. The committee found out that instead the students were warned not to make the issues public in social media, and any one in breach would have to face undesirable consequences.
“There are sufficient evidences of such threats being made to the students concerned via email, WeChat, WhatsApp and Facebook Messenger,” says the letter.
It says with so many issues, the students had to continue working and attending classes with many difficulties thereby compromising not only in financial terms but most importantly, their physical and mental health.
It says these threats ultimately caused distress and anxiety among the students, and the psychological impacts are still visible at this point of time.
“The committee feels that the ultimate cause of death of two students, and one in coma with many health issues could be attributable to these threats which made them unable to make proper recourse before the situation worsened,” says the letter.
It says the committee is convinced that the agent committed the offence of Harassment under Section 462 of the Penal Code of Bhutan, 2001.
Abandonment of a person in danger
The letter says the students had to work in unsafe workplaces and attend language classes without enough rest. Due to inadequate income, they were deprived of nutritional food and irregular meals further compromised their mental as well as physical health conditions.
It says there are viral pictorial evidences of students in the LEP program being too exhausted to attend their language classes as most of the students were found sleeping in the classrooms. It says difficult works at unsafe workplaces with no proper rest and meals degraded the health condition of the students.
According to the statistics, many of the students had to be referred to the hospitals with few dead and one in coma.
It says despite repeated intimation of the situation to the agent and the Ministry via texts and mails, the messages went unheard.
It said the students expected better responses since the health coverage is incorporated not only in the agreement but also specified in the Overseas Employment Rules and Regulations as well. It says no such help was received from the agent by these students.
It says Overseas Employment Rules requires an agent to take care of those students who were sent by them but notwithstanding both legal and moral obligations, the agent failed to render timely help to the students in difficult situations.
“These evidently entail abandonment of students in danger by their own agent. Therefore, the committee is convinced that the Agent committed the offence of Abandonment of a person in danger under Section 434 of the Penal Code of Bhutan, 2001,” says the letter.
Trafficking a person
The letter says that after having studied the situation of the aggrieved students of the Learn and Earn Program, it is evident that the agent has exploited the youths to derive benefits out of them.
“Although, with the involvement of the MoLHR at the beginning of the program it appears to be a legal initiative but the failure on the part of the agent and ministry in ensuring the success of the said program and their gross ignorance to the issues of the aggrieved students vividly infer that the move is a clear indication of human trafficking,” says the letter.
It says according to the human trafficking concept as construed at the international level, it has predominantly three essential elements which are The act of recruitment, transportation, transfer, harboring or receipt of persons; the means of threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim; and the purpose for exploitation, which includes slavery, forced labour or services, servitude, forced criminality, sexual exploitation or the removal of organs.
It says that as per the Penal Code of Bhutan, the involvement of highest authority such as MoLHR in the activities of human trafficking does not disqualify such activities to be a case of human trafficking.
“Irrespective of the status of the perpetrator, if the circumstances so exist as aforementioned, it would be a clear case of human trafficking. Rather the involvement of Ministry would entail a serious issue of human trafficking and violation of human rights, if the means and conducts are ultra-vires to the provisions of the relevant laws,” says the letter.
It says LEP initially appears to be a noble move, but the situation as of today revealed the ingredients of human trafficking.
“The agent has been deriving undeserving benefits from this program by exploiting our innocent students. The agent in collaboration with the Ministry recruited the students into this program and transported them accordingly to Japan through deceptive approaches by misrepresenting the facts and truths. The prevailing situation of the students now infer that the agent’s purpose was not to assist the humbled students but to exploit them and derive benefits out of it,” said the letter.
The lawyer talking to The Bhutanese said one such instance is the agent collecting commission against Bhutanese students from Japanese Language schools.
It says the committee is convinced that the agent committed the offence of Trafficking a person under Section 154 of the Penal Code of Bhutan, 2001.
It says the committee found that these five charges were relevant against the BEO agent as per the Penal Code of Bhutan in the case of LEP but the RBP may not limit to aforementioned findings but may also add or subtract the charges to meet the ends of justice.
Meanwhile an official from the Office of Attorney General (OAG) said they are waiting for a statement of former labour minister’s niece in the separate case of an Indian agent to go ahead with the case. The official said although her case is not connected to the BEO but it came as one case, so they have to charge sheet the case together.
OAG is looking into the cases related to the illegal license, conflict of interest, handling of complaints and false declaration of assets.
Thimphu police started reviewing the case filed by students and parents against BEO agent for the Learn and Earn (LEP) program in Japan on 22nd July after the OAG said it is a separate case.
The original complaint was filed on 27th June by parents and students in the LEP case.