High Court to hold show cause hearing today

The appeal cases have been divided between the two benches, one for the foreign minister and the other for the rest of the defendants  

Judiciary: Bench I and II of the High Court will hold two show cause hearings today to ascertain the grounds of appeal, issue a show cause order and set the date for preliminary hearings for the Lhakhang Karpo conservation project case.

High court officials said the court has asked the Office of the Attorney General (OAG) to report before the court today for the show cause hearings. Prosecutors will have to explain why the OAG was appealing against the lower court’s verdict.

Accordingly, the High Court will issue an order to the defendants on why the court shouldn’t entertain the appeal petition the prosecutors submitted.

The OAG on July 7 submitted two appeal petitions to the lower court stating that both OAG and the Anti Corruption Commission (ACC) were dissatisfied with the Haa court’s verdicts, which dismissed two charges and acquitted foreign minister Rinzin Dorje and project manager Wangchuk Tshering. The legality of the document that led to the acquittal of both defendants will now be contested in the High Court.

OAG also appealed against the verdict of project engineer Tashi Gyeltshen, for considering Nu 100,000 as security deposit for un-sieved sand.

The High Court has reportedly divided the appeal cases between the two benches. Bench I will hear the appeal case for Lyonpo Rinzin Dorje while bench II will deal with rest of the cases.

Attorney General Shera Lhundup confirmed that the OAG is handing over the two cases of lyonpo Rinzin Dorje and project manager Wangchuk Tshering to the ACC for prosecution. He said that both defendants were acquitted by the lower court based on the same evidence submitted during their trial hearings.

In his earlier interview, Shera Lhundup had said that in the interest of justice and because of an involvement of a cabinet minister, it would be best if ACC prosecuted the case.

Shera Lhundup had also said that any political misconception in the due process of law must be avoided by adjusting to such circumstances as in the present case.

He however, said that the OAG would continue prosecuting the project engineer Tashi Gyeltshen and sand supplier Tshewang Rinzin in connection to the bribery of Nu 100,000.

However, some private lawyers including those from the judiciary still believe that the OAG, as the state prosecutor, should continue the prosecution of all appeal cases.

“The state prosecutor shouldn’t have accepted the Lhakhang Karpo case in the first place when it was registered with the district court,” a private lawyer said.  “If OAG feels there was a conflict of interest to prosecute a cabinet minister, then who is going to defend and protect the interest of the state.”

A Supreme Court official had indicated earlier that allowing ACC to prosecute might set precedence, which is not a healthy in a democracy.

The issue to prosecute or not by the OAG cropped up in 2012 when the state prosecutor had exercised its discretion to not prosecute the former speaker and home minister in the Gyalpoizhing land case.

The Supreme court’s ruling on July 17, 2013 stated that section 128 (3) of the ACC Act provides for check and balance granting it the option to unilaterally pursue a case, where the OAG blatantly misused its authority whether to prosecute or not or where the decision not to prosecute is influenced by any political advantage or disadvantage to the government of the day.

However, since it was the OAG that appealed to the high court, the case becomes subjudice. This means, OAG handing over the case to ACC for prosecution could mean that the move doesn’t comply with the due process of law.

Going by the SC’s earlier order, any instance of similar adventurism on the part of the OAG will tantamount to obstruction of justice and rule of law. The High Court is expected to issue an order soon on whether OAG can hand over the case to ACC or not.

ACC officials earlier said that the commission might press additional charges against the committee members for signing the undated document. The document in question, which was signed by eight of the 11 tender committee members convinced the Haa court, “beyond reasonable doubt” that the charges framed against the foreign minister and project manager were invalid.

As per the recent Supreme Court order, any aggrieved party, can summit fresh evidences and additional charges for de-novo trial by the first appeal court to ensure fairness and justice.

Rinzin Wangchuk

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