Questions over compensation of property as the precedent set

Rinzin Wangchuk 

Aggrieved and frustrated by not receiving justice, denying opportunities to present evidences submitted in documents and audio recordings, including forensic reports before the lower and appellate courts to prove their innocence led to assaulting incident at the Supreme Court recently, according to Lhab Dorji’s relatives.

Although Kuensel didn’t get access to the statement, the former dzongdag’s relatives shared some of the content of the statement submitted to police after the family was arrested.

Recalling the incident last week, one of the relatives said that Lhab Dorji was yelling at Anti-Corruption Commission’s (ACC) investigation director, Gyeltshen asking him if he was “satisfied with convicting him (Lhab Dorji). And then he assaulted Gyeltshen.

The incident, according the relative, was evident that Lhab Dorji was targeting Gyeltshen who made him a convict and made his family bankrupt. Gyeltshen was accused of hiding crucial documents and coercing former Drakteng gup Tenzin to change his statement several times so that ACC could charge the former dzongdag for forgery.

Lhab Dorji was given a concurrent sentence of five years – for four counts of forgery, three counts of official misconduct and deception.

The other factor that provoked the appellant, the relative claimed, was the presence of a “big team” from ACC on judgment day. “This probably meant celebration of their triumph to the agitated appellant,” the relative said.

The same concern was raised both at the High Court (HC) and SC.

Both appellants submited that ACC had sent several officials led by a commissioner simply to register the case at the Trongsa court. “Such an act of the respondent is totally unprecedented and its amounts to throwing weight to the court. “It is certainly unhealthy and under such circumstances, it is possible that judges would succumb to ACC’s pressure though judges ought not to,” the appellant submitted.

The appellant also came to know that during the course of the proceeding, ACC had made a detailed powerpoint presentation to the court in his absence, violating the due process of law. “The appellant is deeply aggrieved by such an act. The right to a fair trial, the equality before the law and equal protection law, guaranteed by our Constitution had been denied to the appellant,” they submitted.

One of the relatives said that they also submitted statements to the police requesting to charge the ACC’s commissioner for provoking Lhab Dorji’s three children into unruly behaviour during the altercation. The three children are still under police custody.

Could appellant courts entertain new evidences? 

The aggrieved party claimed that they were not given the opportunity to submit additional evidences although they made a presentation at the HC. However, HC dismissed their submission saying that the appellate court cannot accept new evidences.

Legal experts agreed that court cannot admit fresh evidences, but can accept those relevant to the case and permits exhaustive hearings in the appellate court.

In this case, according to a legal expert, the decision may change or remain same as the lower court. “However, if an appellant submits complete new evidence to the appellate court which is bound to change the decision of the lower court, then as per CCPC, the appellate court must remand the case for retrial by the lower court,” he said. They will not accept the new evidence.

In case of a miscarriage of justice based on evidences which were discovered after the conclusion of trial, the SC can have the right to review its own decisions and rectify errors. “The point is our appellate courts hardly review issues beyond the lower courts’ judgments.”

All equal before law

Following the recent SC incident, there is an emerging public view of inequality as similar cases were handled by appellate courts. One question is on the justice rendered in terms of prison term and seizure of properties notwithstanding the legality of state land transactions.

Comparisons are made between the Trongsa case with numerous similar cases of state land encroachment and transactions.

The SC on April 29,  upheld lower courts’ ruling sentencing Lhab Dorji to jail for five years while his wife Karma Tshitim Dolma and former Drakteng gup Tenzin were sentenced to a prison term of six years each.

Although the SC did not specify what actions to be taken on the Viewpoint Resort,  Lhab Dorji’s wife constructed at Thumangdrak, affirming the lower court’s verdict would mean the ACC, which was both the investigator and prosecutor, is not responsible for any compensation as the land was a “proceed of corruption.”

The Trongsa court, however, gave the option to dismantle at their own cost or compensate the owner should the government wishes to take over the property.

The defendants submitted ACC to keep the resort and compensate them with Nu 306M (value of the resort)  with an addition of 15% interest rate per annum from the date of the ACC’s freeze notice until its final payment. They claimed that the ACC freeze notice had directly caused opportunity loss and irreparable damage to the resort.

Contrary to the Trongsa land case, several former local leaders in Thimphu involved in illegal state land encroachment, registration and transaction cases were convicted with a prison term ranging from three months to not more than three years.

The maximum sentence the lower and higher courts handed down was a non-compoundable prison term of three years to a former national assembly member. He was convicted of illegally registering and transferring government land in Thimphu after a high-level committee investigated the case between 2002 and 2003.

Illegal structures

There were similar cases where illegal structures built on government land were taken by the government and paid compensation. The SC on April 20 affirmed a lower court’s judgment to take over a two-storied building constructed on government land at Gangchey, Chang gewog and paid the cost of the building.

The owner was convicted of encroaching on 31-decimal government land and was awarded two-year prison term. However, she was given an option to pay thrimthue Nu 90,000 in lieu of imprisonment. She sold two plots from the 31-decimal land and constructed a two-storied building on the remaining 0.9 decimals plot. The Office of the Attorney General (OAG) will enforce the judgment (compensate) after assessing the value of the building.

From 22 judgments that the OAG was supposed to enforce, only one case was resolved so far.

The OAG in December last year reimbursed Nu 36.410M to a building owner who constructed a three-storeyed building on State land in Olakha. This was as per the order of HC, which had upheld the trial court verdict. The land was illegally registered by her father, a former Chang gup, and later registered in her name by forging document and showing it as inherited land. The court sentenced her to four months compoundable prison term.

OAG didn’t appeal to the SC although they said the cost of the building (compensation) valued by a committee from the finance ministry, ACC and their own officials was very high. ACC also didn’t appeal.  In the JPLP tax evasion case when OAG accepted HC’s ruling and decided not to appeal, the ACC appealed to SC and won the case. About  Nu 27.71M increased from Nu 126.89M to Nu 154.61M after ACC appealed to SC.

In another case, the OAG also wrote to the National Land Commission to remove three illegal state landholdings from the record after finding out 1.37 acres of state land at Tshalumaphey, Thimphu was encroached and registered as private land through fraudulent means. The former senior land record officer, former Chang gup and nine others were involved in the case.

Three women bought 58 decimals of land from one the accused from Tshalumaphey and constructed permanent and semi-permanent structures. Since they were innocent buyers, both the lower and higher courts didn’t convict them. However, the rulings were silent on what should be done with the structures. OAG officials said that a precedent was already set by compensating for structures built on state land.

OAG is also yet to restitute the 3.72 acres of land that was illegally encroached and sold by the former Chang gup to 18 lawful landowners. The SC passed the judgment on December 8 last year.

Meanwhile, in what is a contradictory court ruling, both lower and appellate courts sentenced a former NLC land record officer to three months in prison for forgery in connection with the fraudulent transfer and encroachment of 1.33 acres of government land in Debsi, Thimphu. However, the courts also ruled that it was not government land but a registered private land. The SC upheld lower court rulings on November 10, 2021.

Both ACC and OAG officials were confused with the ruling. “How can the courts convict the defendant for forgery if it was privately owned land,” both officials said.