With a senior Election Commission official saying that politicians who have a court case registered against them, will not be allowed to participate in 2013 the nature of the potential legal charges against them in the Gyelpozhing case have taken center stage.
This is in the backdrop of ACC’s ongoing investigation confirming that land was grabbed and that both Royal Kasho’s and the 1979 Land Act were violated in Gyelpozhing.
At the center of this storm is the Speaker Jigme Tshultim, Prime Minister Lyonchhen Jigmi Y Thinley, Lyonpo Yeshey Zimba and finance minister Lyonpo Wangdi Norbu.
A senior ACC official on the condition of anonymity said, “The two main laws that would apply would be the then Thrimzhung Chhenpo and the Land Act 1979.”
This is based on the ‘retroactive law’ principle which first came up in the Phobjika case and simply means that a person has to be judged by the laws that were applicable at the time and not those that came later.
The Bhutanese also talked to some former and current judicial experts and luminaries on the charges and laws that would apply if ACC framed charges in the Gyelpozhing case.
According to the legal experts, the applicable charges would come under the Thrimzhung Chhenpo and the Land Act 1979 if ACC can show it has a case.
The Thrimzhung Chhenpo in one section states that in 1979, except for His Majesty the Druk Gyalpo, all other citizens of Bhutan, irrespective of their rank, social status or official position were equal under the Thrimzhung Chhenpo.
A legal expert said that some major charges would come under Chapter six Part one which deals with, ‘Cheating and undue influence of Trade and Commerce, Unfair practice of ‘Dey’ and ‘Sang’ and of government prohibited properties.
“In Chapter six of CHHA 1-1, it states that the buying and selling business of the government prohibited properties shall not be permitted in any restricted place. In violation of the provision, the government would confiscate the properties transacted and forfeit the values involved. Moreover, the parties to the transaction including the witnesses will be punished with imprisonment for a term, which may extend from three months to three years,” said a legal expert.
The legal expert said since the ministers had collusively offended and defeated the King’s order, the purpose of the government and the country, the charge will fall under CHHA 1-2, which states that ‘ the business must be carried according to the normal course of trade and it should not be affected under coercion, undue influence, misrepresentation and fraud.’
If, however, the parties violate the provision, they shall be made to return the goods transacted and pay the money according to the prevailing customary practice. In addition to that, the guilty party will have to pay the fine to the government equivalent to half the value of the actual price involved in the transaction.
The Thrimzhung Chhenpo with regard to CHHA 1-2 states that such unlawful act must be brought to the notice of the court within seven days from the day on which such transaction was undertaken. If, however, such unlawful transaction was left unreported to the court having jurisdiction within the period specified therein, the court shall not entertain the complaints thereafter.
The legal experts, however, said that though the ministers would face the above charges the Speaker would be more liable.
“Under Section PA 1, the Speaker can be held liable for theft, as he had carried such activities by violating the Kasho, the government’s directives, conflict of interest, and deceptive practices to offer land for vested interests,” said a legal expert.
Under Section PA 9 the government can take back such a property.
According to the legal experts the ministers, however, could come under value based sentencing under Section PA 11 which says, “A person who bought or received any property which he knowingly knows that had been stolen and conceals the fact when inquiries into the theft are made by the Thrimkhang, will be made to restore that property to the real owner and also will be liable to punishment ranging from half the sentence liable for the thief.”
With this sentencing being a value based sentencing it means that for property worth Nu 1-Nu 500 the sentencing will be one month to a year.
For property worth Nu 500-1000 the term will be one to two years, and for property worth more than Nu 1000 the term will range from two to five years.
“The Gyelpozhing incident is a collusive act with conflict of interest, meaning that the ministers above knew the government law. Still the Speaker went ahead and offered the lands to the influential people and with the PM being his boss failed to do his duty of not allowing the Speaker on take such steps. This crime therefore would fall under the MA 1-1,” said the legal expert.
This section states, “A person who witnesses any other person committing an act violating the law, should report the matter to the nearest Thrimkhang or competent local authority.”
A legal expert said that in the Gyelpozhing case the ministers knew what was happening and still kept the land and used it.
“Now, with the ministers knowing the fact that the Speaker was committing a crime, section MA 1-3 will apply on the ministers,” said the legal expert.
This section states, “Any person who accepts a bribe from a known lawbreaker or criminal and gives him shelter and conceals information regarding his whereabouts, or otherwise extends assistance to him, shall be liable for punishment ranging from half the sentence to the full sentence liable to the lawbreaker or criminal he so assisted.”
Moving to the Land Act 1979 front, the accused will be held liable under two sections in the Land Act according to the legal experts.
One will be the KA 6-8; this section states that though as per KA 2-3 the title of land registered in one’s Thram cannot be questioned by anyone, the government can requisition any land if it was required for the benefit of the country.
The cost of such land will be paid by the government based on classification and the regulations laid down. Substitute land will be given as per KA 6-9.
The second will be KA 6-20, which states that the government land cannot be contended for use, sale or purchase either collectively or individually irrespective of the status of the person.
“If used, an amount equivalent to the cost of the land will have to be paid by the user as fine and the land will be confiscated by the government. If sold, the buyer or the seller along with the witnesses, thereof, can be imprisoned in the same context as mentioned in the Thrimzhung Chhenpo of Section 1-1.
Judicial experts say that these laws will be made applicable with factual findings.