Transporting private timber by using a pool vehicle while being a dzongdag was not an emergency but a violation of laws

Judiciary: Reversing the Haa dzongkhag court’s ruling, the High Court’s Bench I yesterday convicted former foreign minister Rinzin Dorje to a year in prison for misusing the dzongkhag’s pool vehicle to transport private timber from Haa to Thimphu.

Defendant Rinzin Dorje had used the pool vehicle 10 times to transport private timber between July 2011 and June 2012 when he was the then Haa dzongdag.

The court, however, granted the defendant an option to pay Thrimthue in lieu of imprisonment amounting to Nu 45,000. The court also ordered him to pay a penalty of Nu 111,640 within 10 days of the verdict.

The verdict stated that defendant Rinzin Dorje during his tenure as dzongdag had violated beyond reasonable doubt, the Civil Service Act and Anti-Corruption Act.

The Office of the Attorney General (OAG) appealed to the High Court in July after the Haa court dismissed the second charge of embezzlement of public property based on the finance ministry’s circular of January 13, 2000, which allowed a civil servant to use pool vehicles under pressing and emergency personal needs. The lower court asked the former minister to restitute Nu 4,166 to the government for being unable to produce two receipts for fuelling the vehicle.

OAG’s prosecutors argued that the transportation of private timber to be construed as an emergency by the lower court was beyond the scope of its definition. The OAG sought an interpretation of the word emergency and to hold the defendant liable for administrative sanction and not as initially charged in the trial court for misuse of public property.

The defendant’s legal counsel argued that MP Rinzin Dorje, based on the circular having countered ‘pressing and emergency personal needs’ had transported the timber in strict compliance with the rules and norms established by the government and submitted that the objective of the circular must be ascertained by the court.

The appellate court, based on the submission of the parties, employed the interpretation of the word ‘emergency’ by examining the established legal principle known as “emergency doctrine.’

Emergency doctrine is a legal principle exempting a person from the ordinary standard or reasonable care if that person acted instinctively to meet a sudden and urgent need for aid. According to the court’s interpretation, emergency is a situation where aid and assistance are required to minimise risks, exigency or to address certain pressing and personal needs.

Under such legal principle, emergency is also termed as ‘immenent-peril doctrine’ or ‘sudden-emergency doctrine’ where a legal principle, for instance that the consent to medical treatment in a dire situation is inferred when neither the patient nor a responsible person can consent but a reasonable person would do so to save life.

It also stated that emergency can also be equated with the situation of ‘rescue doctrine’ or ‘emergency employment doctrine’ on the basis or principle that a deployment of men and material may be a requisition in enlisting another’s help or engaging property in dealing with an emergency situation and least that misery may not be overcome without such assistance.

Based on these established legal doctrines, the court observed that emergency concerning the transportation of timber using the pool vehicle during several occasions is illimitably beyond the definition of the word ‘emergency.’

“It can be only determinable in remoteness of intelligence that timber has to be first sawn, stacked and further transported which in one’s own peril of knowing the inconstancy should have every opportunity to arrange private transport occasioning private construction,” the verdict stated.

“Therefore, the transportation of private timber while being a dzongdag or civil servant with purpose and intent involved during such course is the pure misuse of government pool vehicle in contravention of the circular and in violation of laws,” it stated.

Clause 5.3 of the circular stated that the concerned heads of agencies shall levy a fine of Nu 1,000 on the defaulting officials for misuse of pool vehicles within the duty station. Further, unauthorised travel beyond duty station will entail an imposition of a fine of Nu 1,000 and three times the mileage at the prevailing government rates.

The court, based on the circular, affirmed the prosecution’s prayer in levying a fine of Nu 10,000 for 10 trips and prevailing mileage rate of Nu 14 applicable at that point of time.

“However, in the principle of criminal justice system, a defendant shall not be exonerated from proven criminal liabilities, if charged through due process in the court of law,” the verdict stated. “Hence, the court overruled the prayers of the prosecution to drop the charges for the misuse of government property on the basis of the principle of equal justice, fairness and equal treatment.”

The court observed that the constitutionalism and rule of law expound profound legal principle that in criminal prosecution, no innocent shall be punished while the guilty shall not escape.

The parties have 10 days to appeal to the Supreme Court if they are not satisfied with the judgment.

The misuse of pool vehicle by the former foreign minister was found when the Anti-Corruption Commission (ACC) investigated the Lhakhang Karpo conservation project corruption case from October 2012 to April 2014. The commission found that Rinzin Dorje and his subordinates on his instruction had signed the movement orders of the DCM truck.

Rinzin Wangchuk