Are some more equal than others before law?

Many now question the application of the law

Tashi Dema

While the Royal Civil Service Commission (RCSC) is yet to decide whether to suspend the president of Jigme Dorji Wangchuk National Referral Hospital, who was convicted last week in an illegal land acquisition case in Trongsa, the question of inequality in the application of law has resurfaced.

RCSC’s deputy chief legal officer, Choki Drakpa, said they received the Trongsa court judgment but decided to take appropriate administrative action upon the completion of the appeal period.

Litigants get 10 working days to appeal against a judgment. Lhab Dorji appealed to the High Court against the Trongsa court judgment on November 22, one day after the verdict.

Choki Drakpa explained that section 19.3.2 of the Bhutan Civil Service Rules 2018 stipulates that completion of a criminal trial or civil suit against a civil servant in a court of law shall not prevent the disciplinary committee from exercising jurisdiction under the rule.

“Lhab Dorji has 10 days to appeal to the next higher appellate jurisdiction and considering that administrative action differs on whether a person submits an appeal or not,   the Commission decided to take appropriate administrative action upon completion of the appeal period.”

RCSC had, in earlier cases suspended civil servants who were convicted by lower courts.

The issue was raised when Home Minister Sherub Gyeltshen and was convicted by lower courts, but not suspended.

A practising lawyer said that suspending civil servants and local leaders, who are convicted by the lower court when they had appealed to higher courts and not suspending Members of Parliament (MPs) and ministers, who were also convicted by lower courts undermine section 15 of Article 7 of the Constitution.

Section 15 of Article 7 states, “All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status.”

The lawyer said that anyone’s conviction by the lower courts should stand until the appellate court rulings are rendered. “But the unequal application of law, especially the protection ruling governments provide to their MPs and ministers, breach the principles of law.”

Sources pointed out that most of the unequal applications of law occur in cases investigated by the Anti-Corruption Commission, as they release accused they detain without court approval.

A source pointed out that unequal application of law impacts people’s perception on how justice is delivered. “When those in authority do not comply with the prevailing laws, people lose faith and trust in the judiciary and create misunderstanding.”

He cited a Supreme Court directive issued on July 17, 2013 and stated that the SC through a ruling made it clear that once the lower court convicts a defendant, he or she should be suspended until the higher courts acquit him.

“But like the past two governments that did not suspend their ministers, the present home minister was also convicted by the lower court and he is still serving his post,” the source said. “So just suspending civil servants and local government members when the politicians enjoy all the perks and privileges is not fair.”

Such double standard of law applications, according to another lawyer, forces people to believe that there are two laws in the country.

The Prime Minister, in a Friday Meet session on September 13, said that he would not take action against Home Minister Sherub Gyeltshen, as the legal proceeding was ongoing.

Legal practitioners say that an apex court should issue a decree mandating any public official, convicted by the lower court to remain suspended until Supreme Court issues the final judgment and rules him or her innocent.

“Until then, all civil servants and local government members should not be suspended if the government is not taking any action against a minister,” a lawyer said. “This way, there will be uniformity in the application of the provisions of laws and equality before the law could also be achieved.”

However, a head of a legal division in an organisation said that until and unless someone moves the court that he or she is affected by the unequal application of the law, the court might now issue any such decree. “There is no use making noise when no one is taking heed. If people are affected, they should file a case.”

Meanwhile, the 2013 Supreme Court directives states that the issue related to suspension needs to be revisited and comprehensive guidelines should be prepared either as law by Parliament or Rules by relevant agencies. It was learnt that nothing has been done until now.

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