The Bhutanese Leading the way.
On 4 May 2021, Penjore put up a post on his personal Facebook page on the Bank National Bank (BNB) recruitment case asking for the resignation of the Attorney General. The post did not attract much attention.
However, Penjore was arrested and detained on 6 May 2021, based on a defamation complaint by the Office of the Attorney General (OAG), and kept behind bars for the next 16-days.
The Bhutanese did a series of stories on the issue along with some editorials and an opinion piece.
The paper was clear, from the beginning, that the issue is not the defamation law, as people have a right to protect their reputation. The case was not about Penjore or his past posts, as any citizen defamed by Penjore can file a private defamation case against him.
However, there were several points of public interest, freedom of speech, Constitutional and legal issues in the Penjore case prosecuted by OAG, which the paper took up.
OAG, in its 6 May 2021 Press Release, had said that Penjore made unfounded defamatory posts over the years against public officials and institutions of repute that fulfill judicial, quasi judicial and other functions, including the OAG.
The Royal Bhutan Police (RBP) drew up a defamation case and sent the case to OAG for prosecution.
Already, the Penjore case was setting exceptional precedents, where a person for the first time was locked up for 16 days in a defamation case, which is a petty misdemeanor case for which there is no prison time, and only Thrimthue needs to be paid.
Penjore made his feelings clear when he said he was “treated like a terrorist”, and was in a lot of psychological turmoil.
This was also the first case where OAG was both the complainant and prosecutor, bringing in an inherent conflict of interest and bias in the case.
The case also raised the question as to whether the personal defamation of the AG can be prosecuted by the OAG, at the expense of the state resources.
Another issue was OAG filing a defamation complaint on behalf of other institutions, who have not even complained.
Judicial and legal experts, including a former Judge that this paper talked to, said OAG cannot file a defamation complaint on behalf of others, OAG should not prosecute its own case and that personal defamation should be prosecuted privately, and not through the state’s resources.
Another issue that crept up in the case was OAG filing a defamation case of behalf of government institutions without any clearance from those institutions or the government.
OAG is the legal arm of the government and the AG is accountable to the Prime Minister. This brought up issues of the relationship between the posts of the AG and the Prime Minister, and if OAG can freely file such a case.
The PM declined to intervene in the case, saying that the OAG is not under the government and does not need to seek his permission to file such a case. He, however, made it clear that the government was not suing Penjore, and it was between the OAG and Penjore.
Here again, both judicial and legal experts countered the PM’s interpretation of the OAG’s stand saying since OAG is appointed and removed, based on the Prime Minister’s advice, the AG is accountable to the Prime Minister, and moreover, OAG is the government’s legal arm.
The PM’s stance meant that OAG can sue anyone for critical social media posts, media articles, statements, etc., without any complaint from any agency or permission from the government, but the government of the day can escape political accountability, saying the OAG is autonomous – which is not true.
Another issue in the case was that OAG had also made the Judiciary a party to the case. OAG, in its complaint to RBP, and its press release, mentioned defamation against the Judiciary as one of its main complaints.
From the above, it is clear that 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 raised the larger question, if Penjore could ever hope for a fair trail if the Judiciary was his apparent victim, in the case.
A legal expert said 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.
A senior official from the Supreme Court (SC), on the condition of anonymity, reflecting his personal views said that nobody needs to stand up for the Judiciary or make it party to a case, as the Judiciary has enough strength to act on its own.
Another issue in the case was the fact that when Penjore was detained or arrested on 6 May by the RBP, it was done without an arrest warrant at the time. Section 165 of the Civil and Criminal Procedure Code of Bhutan (CCPC) lays out 14 conditions for arrest without warrant, but Penjore met none of them.
The biggest question, in the entire case, was on its impact on freedom of speech and also freedom of media, if the legal arm of the State can start prosecuting anyone for critical posts against government agencies, without government sanction and government accountability.
A 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. At the time, the High Court was the highest court of appeal and equivalent to the Supreme Court.
However, when OAG finally filed its case against Penjore in June 2021, it was a sedition charge which is a felony of third degree with a minimum imprisonment of five years and a maximum of nine years.
This came as a shocker as RBP said that, during their investigation of Penjore, they did not find any element of sedition and only found defamation and libel.
The RBP investigation report detailing out the defamation and libel, but with no presence of sedition, was given to OAG. RBP said that this was a simple and straight case.
This meant the OAG had added the sedition charges on its own.
Bench 1 of the Thimphu District Court dismissed the OAG’s sedition case against Penjore on four grounds, and OAG said it would not appeal and it was assumed the case was now a closed chapter.
However, the Human Rights and Foreign Relations Committee of the National Assembly decided to review the case and asked to talk to OAG and RBP.
After this, RBP with permission and acceptance of OAG filed a defamation case against Penjore on 9 November 2021, based solely on his 6 May Facebook post.
After dismissing the original case against Penjore, the Thimphu District Court controversially accepted the defamation case and hearings are going on.
This now raises a legal question of whether a person can be convicted, twice, on the same case, especially after having been acquitted by the same Court, the first time around.
The acceptance of the case by the Court also raises the question as to whether the arrest of Penjore without an arrest warrant, and his 16-day detention for a petty misdemeanor case which are potential violations of his Constitutional rights, will be explained and remedied by the same Court.
Even at this stage, the verdict in the Penjore case will have far reaching implications on the freedom of speech and also freedom of media, especially since it is the State prosecuting a private citizen for defamation.
