…now that OAG has registered the lhakhang Karpo case at Haa district court

Update: After handing over the foreign ministry to the prime minister, foreign minister Rinzin Dorje went on ‘authorised absence’ starting yesterday, after the Office of the Attorney General (OAG) registered the lhakhang Karpo corruption case at the Haa district court.

Lyonchhoen Tshering Tobgay said the foreign minister submitted ‘an application requesting leave of absence until the case is resolved’ to the Prime Minister to attend the lhakhang Karpo case court proceedings.

The Cabinet discussed the letter this week when they met on Tuesday.

“The Cabinet decided to grant the minister an authorised absence to prevent controversy and conflict of interest, seeing that the OAG will be prosecuting the case on behalf of the government,” Lyonchhoen said in a press conference yesterday. “We’re not suspending him.”

On if the minister would get his salary and benefits, lyonchhoen said he could not answer this at this time, but said the Royal Civil Service Commission (RCSC) grants benefits to those on authorised absence.

As per article 17 section 3 of the Constitution, the prime minister sought approval from His Majesty the King regarding the decision.

“We’ve taken this decision in the interest of good governance and democracy,” lyonchhoen said.

The prime minister said there was no provision in the Constitution or any law that states that a serving minister must either resign, be suspended or be granted authorised absence for the duration of the case.

“Recently, RCSC granted authorised absence to the three senior civil servants, while their case is under review. This seems to be perhaps an instrument that we can use,” he said.

Lyonchhoen repeatedly said that the foreign minister does not have to resign or step down from office because a precedence has already been set.

“In the previous government, the serving minister and speaker did not resign or request for any leave of any sort. They continued to function as ministers until the end of their terms,” lyonchhoen said.

“However, in light of the foreign minister submitting his own application, the Cabinet decided that this was a good solution, and that it would prevent conflict of interest; it also sets a good precedence in terms of good governance for democratic Bhutan.”

The opposition leader, (Dr) Pema Gyamtsho, however said the cases were different and could not be treated the same way.

He said the nature of charges were different because one was to do with a case that was 10-15 years old and was regarding procedural flaws, which was the norm those days and one which was not seen as illegal.

The present is a case, which was recent and one, which was pointed out by the Royal Audit Authority (RAA), unlike the Gyalpoizhing case, where RAA had not pointed out.

It was because of this difference that OAG didn’t see it as a case to be prosecuted.

“However, in this case, OAG has accepted that there is a case, which is why it’s prosecuting the case, unlike the Gyalpoizhing case where the ACC prosecuted,” the opposition leader said. “So the PM claiming that this decision is setting a good example of good governance for democracy doesn’t hold water.”


Charges against the minister:

ACC officials, after two years of investigation, found a muster roll fraud, use of substandard construction materials, and awarding of illegal contract to saw timber for the lhakhang Karpo conservation project.

The foreign minister, former Haa dzongda, is charged with abuse of functions, as per Anti Corruption Act 2011, section 58 (1) and (2), which states that, “A public servant, who knowingly abuses functions or position by performing an act amounting to favouritism, nepotism or patronage, etc. in violation of laws, in discharge of his or her functions to obtain advantage for himself or herself or for another person, shall be guilty of an offence.”

The ACC Act also states that an offence under this section shall be a misdemeanour or value based sentencing, whichever is higher, subject to a maximum of the felony of second degree, if the values or the amounts involved in the crime exceed the total amount of minimum wage at the time of the crime for a period of 35 years or more.

The former dzongda was charged with favouring a local saw miller by awarding timber sawing works worth Nu 1.4M without approval of the tender committee.

ACC found that the contract was awarded illegally by the former dzongda, without consulting the tender committee, and the payment was made based on Nu 37.7 per cft, which the committee had initially rejected.

Lyonpo Rinzin Dorje is also charged with using the dzongkhag’s DCM truck to transport his private timber from Haa to Thimphu.  He reportedly told ACC officials that he had paid for the fuel.  However, ACC officials, while cross checking cash memos, found that the date of the fuelling and that of the vehicle movement did not match.  He was told to refund Nu 80,000 for the 10 trips made in transporting his private timber.

While the prime minister said that the foreign minister would defend the case himself, the minister said that he was yet to decide on whether he would hire a lawyer to represent him. “I have no comments,” he said yesterday.

Meanwhile, Haa district judge Duba Drukpa last week said he was uncertain whether he could sit over the case.  He is a dorjipuen (spiritual sibling) of the foreign minister.  The Chief Justice will make the decision after he submits his conflict of interest to him, the judge said in an earlier interview.

The foreign minister, along with seven other officials, is being charged in this case.


Two years ago


In the Gyalpoizhing case, Anti-Corruption Commission (ACC) had issued suspension orders against former speaker and the home minister after registering the case in the court.
ACC officials said it was a usual administrative procedure under the commission’s Act.  Section 167 of the Act spells out that a public official charged with an offence under the Act, would be suspended with effect from the date of the charge until pending the outcome of any appeals.
Following a submission by OAG against the suspension, the High Court issued a temporary restraining order against Anti-Corruption Commission’s (ACC) suspension orders.
The court order was issued, based on article 21 section 10 of the Constitution, which states the Supreme Court and the High Court could issue such declarations, orders, directions or writs suitable to circumstances of the cases. It also cited section 65 (1) of the civil and criminal procedure that allowed the court, on request of plaintiff or defendant, to immediately serve the order, but on the condition that, in absence of it, immediate irreparable harm should be shown to follow.
It was in a similar vein that two of the three medical specialists were saved the suspension that ACC ordered, regarding their travels abroad sponsored by some of their medical suppliers.  The health ministry, during that time, convinced and showed the immediate hardship that would follow at the hospital had the two surgeons been suspended.

Tshering Palden