The Supreme Court on 12th February 2024 upheld the judgment of the High Court in the Japan Learn and Earn (LEP) program where the owners of the Bhutan Employment Overseas (BEO) Tenzin Rigden and Jurmey Tshewang, were sentenced to 4 years and 6 months in jail for forging bank balance statements.
The legal process started when several parents and youths filed a criminal complaint with the RBP in late June 2019 alleging forgery, deception, harassment, abandoning of person in danger and human trafficking in their complaint to the police on the Japan LEP program run by BEO.
The parents and youth filed a complaint against the owners of the BEO for failing to provide part-time jobs, charging exorbitant tuition, visa processing fees etc.
The RBP on 30th July 2019 arrested the BEO partners Tenzin Rigden and Jurmey Tshewang for forgery of bank statements as it continued its investigation.
The RBP found multiple forgery cases, Official Misconduct, Aiding and Abetting, Failure to Report Crime and Larceny by Deception.
RBP had ruled out three charges, which are Harassment, Abandonment of a Person in Danger, and Trafficking in Person due to lack of criminal elements.
RBP charged then Director General (DG) of MoLHR, Sherab Tenzin, and an official from DoEHR with official misconduct saying the former DG did not act in the best interest of the citizens of Bhutan and failed in his official capacity to monitor the program.
RBP forwarded the case to OAG on 22 October 2019.
The OAG dropped the charge against Labour DG for official misconduct, on the ground that there is no specific failure on the part of DoEHR and that he was already being charged in another ACC case by OAG over failure to administer requisite document to authorities for the licensing of the BEO.
The OAG in the Thimphu District Court brought forth 697 counts of forgery for alleged forging of Bank statements of the students under Section 296 and 297 (c) of the Penal code of Bhutan.
It listed 2,190 counts of forgery for allegedly forgery of payslip of the parents and guardians under Section 297(d) of the Penal code of Bhutan.
Then 730 counts of larceny by deception were listed under section 241 of the Penal Code of Bhutan for failure to translate the documents after having collected Nu.7500/- each as translation fee.
The OAG dropped the charges for larceny by deception during the evidence hearing.
With the request of OAG, the charges of Forgery and aiding and abetting forgery against Dorji Tshering, Dorji Wangchuk, Sonam Ghalley Prabata Gurung, Tashi Dorji Wangmo, Ugyen Lhaden, Lungten Dorji, Tshering Dorji and Sonam Choki who were BEO employees was dropped.
In the judgment in April 2022, Jurmey Tshewang and Tenzin Rigden were found guilty of making false pay slips for Parents and the Guardians of the Students and were convicted for 730 counts of forgery under Section 296 of the Penal Code of Bhutan.
There were both liable to 2,190 years of jail time each if one year was applied per document but both were sentenced concurrently to 2 years 11 months of imprisonment with option to pay Thrim-thue of Nu 131,250 each.
The Thimphu District Court convicted Jurmey Tshewang and Tenzin Rigden for 697 counts of forgery for forging of bank balance statements under section 296 of the Penal code of Bhutan.
They were actually liable for 2,091 years of jail time each for all the counts of offences (3 years for each offence) but the judgment applied the charges concurrently to make it five years each according to Section 210 of Civil and criminal procedure code.
They both appealed to the High Court.
As submitted by the legal representative of the appellants, it was observed by the High Court Bench 3 that the documents forged by the appellants do not fall under the category of commercial instruments under section 297(c) of the Bhutan Penal Code as ‘Commercial instruments’ has not been defined in the existing Acts and Rules.
However, it was agreed that the documents forged by the appellants is an offence of ‘forging of other writing or document’ as provided under the same section. The conduct had affected the legal relationship between the bank and the students and so the appellants were therefore, convicted for the offence of forging other writings or documents which is a fourth-degree felony.
Additionally, the Court observed that an error has been made while considering the concurrent prison term as the offence committed by accused is a fourth-Degree felony and that the Court should have sentenced them for a period ranging from 3 to less than 5 years. However, the OAG and the Court had erred and awarded 5 years concurrent imprisonment term for both the accused.
The Court therefore partially altered the Judgement of the lower court and awarded a concurrent prison term of 4 years and 6 months each.
The SC upheld the judgement rendered by the High Court in its entirety on February 2024.
The Judgment will come as a relief to hundreds of LEP students and parents who fought for justice on this issue for many years.
While the former Labour DG was not charged in the RBP case by OAG he was earlier convicted in an ACC case prosecuted by the OAG.
In the ACC case the Thimphu District court on March 2023 convicted the DG for Omission amounting to an abuse of functions under the ACC Act section 59(1).
This is because in spite of the Bhutan Employment Overseas (BEO) agency not having the required documents to register the DoEHR sent a recommendation to the Ministry of Economic Affairs to issue it a license. The agency was also given a registration.
While not related to the BEO case the ACC had investigated ties between the former MoLHR Minister Ngeema Sangay Tshempo and an Indian training provider named Manav Dhingra.
Here, the Thimphu District court convicted the former minister in March 2023 over ‘False declaration with the view to conceal’ under the ACC Act section 64(1) as he failed to declare the excavator and the hiring agency run by his wife and him in the 2017 annual declaration to the ACC.
Both the DG and Former Minister who got two years year but they could pay Thrim-thue did not appeal. The then Prime Minister Dasho Tshering Tobgay had asked the ACC to look into allegations of corruption in overseas training in 2018.
A labour officer Ugyen Tashi was convicted for two years for Omission amounting to an abuse of functions under the ACC Act section 59(1) like the former DG in the same case of missing documents of BEO. Ugyen appealed to the High Court which upheld the judgment on June 2023 and after that Ugyen did not appeal.
Background to BEO case
With growing youth unemployment, an issue one of the solutions of the second elected government was to send youth abroad for work.
In 2016 the BEO approached the Labour DG with the Japan LEP program which the DG pushed and it was ultimately accepted.
Starting from 2017 the BEO sent around 700 Bhutanese youth under a scheme where they had to each take a Nu 700,000 loan to cover airfare, visa fees, service fees, initial fees etc.
According to parents and students at the time BEO promised that students can easily pay back the loans working up to two jobs, learn Japanese and then get full employment on finishing the two-year course.
The reality was quite different and The Bhutanese did a series of investigative stories on the issue.
Students were not allowed to do two jobs and some were even deported back. One job was not enough to pay fees and manage expenses. The long work hours meant students could not get enough sleep and learn Japanese. The poor earning meant a diet of instant noodles and cramped living quarters. Youths skipped meals to save time.
The very course was flawed as the language schools had originally been designed to teach Korean and Chinese students whose Kanji script is similar to the Japanese. They were supposed to be part of the workforce of an ageing Japanese population. Once these students dried up after the 2011 earthquake the agents started looking for students all over Asia.
The common feature was high deaths and illness, inability to learn Japanese, inability to earn and unethical behaviour by agents and language schools with high charges and commissions and unfulfilled courses.
Bhutanese students soon encountered this in Japan and over time around 300 came back. There were three deaths including a suicide, 2 paralysis cases, 30 TB cases due to poor diet and no rest, 2 mental breakdowns and many traumatized youths.
Parents said the youths who came back were not themselves and seemed to be traumatized by their experience coming back physically and mentally weak.
The best illustration of the case was the case of Sonam Tamang highlighted by the paper. She like most of the students came from a humble family but due to the conditions there she went to coma after getting TB and she eventually passed away.
In short, the students who had been promised a rosy feature by BEO could neither learn or earn and many had to borrow additional money just to make it.
When they highlighted their conditions in complaints to the Labour Department the DG backed BEO and no serious investigation was done.
When the students went on social media to highlight their plight they were threatened by BEO and its partners of consequences and they were forced to remove their posts and comments.
A Japanese social worker Yumiko San said some students were overcharged huge amounts under the guise of a new working visa.
A two-member parents committee team went to Japan and said they found that BEO’s Japan partner SND was taking hefty commissions from language schools to give them Bhutanese students and SND was even accused of taking a cut from the wages of Bhutanese students for whom the agency found jobs.
More than 500 students signed power of attorneys to sue BEO alleging breach of contract.
In the face of all this the then government was supportive of BEO and the Labour DG even praising him openly. Students were blamed for not working hard enough or not being able to adjust.
It was only after the ACC and RBP started their own investigations that the responsible people could be prosecuted.
Most of the 700 students were unable to pay the Nu 700,000 loans and a Royal Kidu pardoned the interest component.