Uncertain fate for 2 Justices after suspension and AG cites moral responsibility for trip in resignation

The two High Court Justices Pema Rinzin and Tshering Dorji of Bench I, who were suspended for deliberate miscarriage of justice in a drug smuggling and possession case have an uncertain fate after their six-month suspension.

This paper, after talking to a senior official in the Judiciary, initially said the Justices would be reinstated after six months, however, the Supreme Court has said that what will happen after the suspension is not decided.

The Supreme Court press release had said the suspension of the two Justices is in keeping with the Judiciary’s mandate, as enshrined under Article 21 of the Constitution, and in line with the transformation efforts. Article 21 only deals with the suspension of the two Justices.

Since their reinstatement is not certain, and in the scenario that the Justices are to be removed, then it has to be done by way of impeachment in Parliament with the concurrence of not less the two-thirds of the total number of Members of Parliament, since the Justices are Constitutional Post holders.

Article 32 of the Constitution is on the impeachment of holders of Constitutional offices. Here it reads, the Chief Justice of Bhutan shall preside over all impeachment proceedings, and ironically, it states that the Attorney General shall submit a written report on the Articles of impeachment to the Speaker. In the absence of an AG, an Acting AG can also do it.

The procedure of impeachment is not clear as a law has not been made, and an earlier attempt by the National Council which drafted an Impeachment Procedure Bill in 2019 was withdrawn by the National Assembly in 2020, saying the time is not right.

The six-month suspension period of the two Justices show that by the end of their suspension, a new National Assembly will be in place by February 2024.

A judicial expert, on the condition of anonymity, said that with their reinstatement after the suspension uncertain, the signal from the Supreme Court is not good for them, and so a quiet way for the two Justices would be to take the path of the Attorney General and resign.

The judicial expert said that this would also avoid a messy and public impeachment proceeding because once the Justices resign then the Parliament cannot do an impeachment proceeding.

The last Justice to be suspended under Article 21 was Justice Kuenley Tshering in 2021 due to the criminal conspiracy case. Drangpon Yeshey Dorji was also suspended under the same article and in the same case. They were then prosecuted in the courts and were convicted.

The above case leaves open a less possible but uncomfortable option of a formal case being filed for legal prosecution of the two Justices.

The judicial expert said that an impeachment proceeding was not required for Justice Kuenley Tshering as his criminal conviction in court meant that he is automatically removed from his position.

The High Court has three benches with three justices each. This has led to questions on if a third justice was involved. However, the Supreme Court clarified that only two of the Justices gave a verdict in the case.

The third Justice on Bench I is supposed to be the High Court Chief Justice, but at the time, the High Court Chief Justice was heading the larger bench of the High Court that was later done away with.

AG takes moral responsibility for the trip

The Attorney General Lungten Dubgyur, in his resignation letter submitted to the Prime Minister, took moral responsibility for going on the overnight trek to Phajoding with the High Court Justice and the Kuensel Dzongkha Editor.

It was the AG himself who posted a Facebook photo of the trip with the three of them on Facebook before taking it down later. The trip had happened when the drug case was sub-judice at the High Court.

The AG who had initially left his office is currently back since he has to give a one-month notice for the resignation as per the OAG Act 2015, but it is understood that the AG is not taking any major decisions in this period.

In the meantime, it has emerged that the complaint first came to Grievance Cell of the Judiciary in the form of an envelope posted to the office.

The letter in the envelope cited collusion among the Presiding Justice, the Attorney General and Kuensel Dzongkha Editor, in the drug case.

It talked about the Phajoding trip based on the photo put up by the AG on Facebook and then cited how the 2019 district court verdict sentencing the two defendants for five years for drug smuggling and possession had been overturned in the High Court. The letter said one of the defendants was the son of the Kuensel Dzongkha Editor.

It also pointed out that the OAG which normally appeals against such reversal of judgments, did not appeal to the Supreme Court.

After this a three-member team consisting of the High Court Chief Justice, Supreme Court Registrar and High Court Registrar investigated the complaint.

When questioned, Justice Pema Rinzin admitted that he had gone on the trip to Phajoding with the AG and the Dzongkha Editor.

The investigation team then studied the High Court verdict and found issues as it was not found to be an issue of the interpretation of the law but rather a disregard of it as the offence of illicit trafficking of drugs is a felony crime with prison sentence.

The High Court instead of upholding the 5-year imprisonment sentence ordered the two defendants to undergo compulsory treatment in a rehabilitation center for a duration of 3 to 6 months.

The Supreme Court issued a direction to the High Court, ordering for a review of the case. A special Bench at the High Court, after a thorough review, found that Bench I had indeed caused a grave miscarriage of justice. The Special Bench reversed the decision of Bench I affirming the Thimphu Dzongkhag Court’s judgment. The two defendants were convicted for five years.

The investigation team took the verdict as the main evidence and the trip to Phajoding as a supporting evidence.

The OAG has a corpus or committee that decides whether cases should be appealed to higher courts or not. The internal rule in this so far is that generally any case which has different judgments by two courts should be appealed.

Reliable sources told this paper that when it came to this case, it did not come before the OAG corpus, and in fact, the AG had given instructions that the High Court verdict should not be appealed.

In 2019 when the case was first prosecuted in the Thimphu District Court, the AG was Shera Lhendup and later when it was prosecuted in the High Court, the AG was the current AG Lungten Dubgyur.

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