Bench 1 of the Thimphu District Court dismissed the OAG’s sedition case against Penjore on four grounds.
The first is that during the investigation and when the remand order for Penjore had been sought, the case was about defamation but now it had turned into sedition.
The second point was while there was no allegation or complaint by the judiciary, the RBP and OAG charged Penjore saying that the judiciary is also a victim in this case.
The third ground is that the Office of the Attorney General and the State cannot be treated at the equivalent level.
The fourth ground is that if the court proceedings are initiated in this case then it will set a bad precedent for the due process of law.
The miscellaneous hearing of the OAG Vs Penjore case where the OAG is supposed to submit the charge sheet to the court was scheduled to be around 10.30 am on Friday morning.
However, in a surprise move and not in keeping with normal court procedure, the OAG’s official Facebook Page uploaded nine pages of the charges in English and 15 pages in Dzongkha at around 9.30 am which is a full hour before the official hearing.
While the case until now had been about defamation, the OAG in its facebook post said it has officially charged Penjore for sedition and submitted for the cancellation of bail and sought his detention similar to defendant Khandu Wangmo who the OAG claimed is under similar charges of the law too.
The comparison by the OAG of Penjore and Khandu Wangmo cases is totally inaccurate as both of them are involved in very different cases.
Penjore was seen waiting outside the court with a group of journalists, all equally clueless about the charges that OAG would be bringing in.
However, Penjore and the journalists were soon learning about the charges on Facebook even before the hearing began.
Ironically, for a case about a facebook post, Penjore found out from the facebook post of the OAG that his charge is no longer defamation, but it has instead been upgraded to a much more severe charge of sedition which is a felony of third degree with a minimum imprisonment of five years and a maximum of nine years.
Added to this was the fact that the OAG wanted to cancel his bail and get him locked up again.
The sedition charge came as a big shock as the RBP investigation of Penjore had found defamation and libel which is petty misdemeanor but no sedition.
The addition of sedition charges was, therefore, clearly done by the OAG itself.
Earlier, legal and judiciary experts the paper had talked to had clearly said the OAG cannot add sedition charges to a defamation case when the RBP as the investigating agency did not find sedition.
The OAG in its charge sheet argued that it has the jurisdiction based on article 29(5) of the Constitution and section 67 and 70 of the OAG Act to prosecute the case.
However, earlier, legal and judicial experts that this paper talked to had already disputed the locus standi of the OAG based on the lack of complaints from the supposed agencies the OAG was filing the suit for.
A legal expert had also said that article 29(5) of the Constitution gives general powers to the OAG otherwise it would not be able to even prosecute ACC and RBP forwarded cases to it and the article does not give OAG the locus standi to prosecute any case it wants.
The OAG argued that it did not require a complainant to file a case and its has the powers to initiate cases that involve national security, sovereignty, public interest, high crimes and to uphold the rule of law.
The OAG argued that its highest responsibility is to initiate and direct police investigation on public crimes.
The OAG while laying the facts of the case said that Penjore has been making allegations on social media against Judges from April 2015 itself when he lost his hotel case against BNBL. The OAG gave some examples of such posts over the years.
The OAG argued that defendant’s series of posts have created other equally accusatory and misleading posts by others including, The Bhutanese, and social media users which have been viewed by thousands, further communicating misinformation that has borne disharmony, suspicion and discontent among the people.
However, the OAG’s accusation against The Bhutanese does not hold water as the paper never raised the merits or demerits of Penjore’s past hotel case at all and the paper also did not endorse any of his past posts against Judges or other figures.
The paper’s only stance was on the way in which a defamation case was filed by the OAG against a private individual in the absence of complaints, the locus standi of the OAG, the powers of the OAG and Penjore’s 16-day detention.
The paper only raised points of substance based in law and that too after consulting relevant legal and judicial experts and at no point launched personal or defamatory attacks on anyone.
The OAG then accused Penjore of making “the most seditious statement to The Bhutanese newspaper condemning the institutional reputation of the RBP by saying ‘I was treated like a terrorist,’ and also condemned the regular and established pre-trial detention facilities…”
The OAG said he undermined the institution of the RBP and portrayed the absence of rule of law in Bhutan, that greatly damages Bhutan’s image internationally as well.
However, this argument by the OAG is a complete misrepresentation of what Penjore said and meant. The word ‘terrorist’ was not to malign the RBP or even the OAG as he did not make any false allegations about his time in detention, but he expressed that was how low he felt he was being treated, despite serving for 22 years in the government and helping build 3,000 km of farm roads as head of the Central Machinery Unit in Bumthang.
For instance, it has already been established that he was arrested without a court warrant and even his 16-day detention has been questioned given that it is a petty misdemeanor case.
The OAG then asked the court to charge him for sedition under section 331 (a) and (e) saying Penjore’s writings for many years maligned the country by scurrilous and malignant statements on social media platform against the State, with the particular intent to defame, encourage contempt and incite hatred against persons occupying positions in public institutions and undermine rule of law, democratic principles, and reputation of the country.
OAG said such actions of the defendant undermine the unity, and integrity of Bhutan by creating animosity and disaffection among the people.
OAG’s prayer to the court was to convict Penjore for sedition ‘committed through seditious libel against the Royal Government of Bhutan: to safeguard the unity, integrity, and harmony of the country and to uphold the Rule of Law. Further to deter such unreasonable actions on the part of every Bhutanese citizen, and encourage transparent, reliable, informed and accountable print and social media posts for ultimately preserving the peace and stability of the country.’
The court dismissed the case instead.
The OAG said it will not appeal the case to respect the independence of the Judiciary.