Tshering Palden

Druk Phuensum Tshogpa has successfully withdrawn its defamation case against Dasho Paljor J Dorji with only Nu 0.45 million to be paid as compensation. 

The closing of the case, however, could open a floodgate of problems for the party as the court has found a ‘prima facie case of sedition against the party.’

Dasho Paljor J Dorji’s legal counsel, Younten Dorji, in support of the statement that his client made on Facebook about the party, had submitted video footage of the party’s July 19 meeting where some members made comments and raised issues that were seditious according to the defence.

“It’s the opinion of this court that the individuals who made the scurrilous, sacrilegious and treasonous speeches at the meeting have violated the laws of sedition and treason as definedinthePenalCodeofBhutan,” the court’s verdict stated.

A preliminary examination of the video clip of the July 19, 2013 meeting of the party revealed that there is a prima facie case of sedition against the party. The court took cognizance of the crimes and to ‘ensure that those guilty are punished.’

The court has ordered the Attorney General to direct and coordinate with investigating agencies to conduct thorough investigations into the al- legations of sedition and file appropriate criminal charges against the perpetrators in court. 

The court did not take it on itself to investigate the allegations and ordered the Office of the Attorney General to investigate instead, as it was presented with the issue of whether it is legally authorised to adjudicate and decide the case on merit and pass criminal sanctions on the parties.

It was also faced with the issue of whether criminal liability can be determined only after the filing of criminal charges by the relevant

state agencies in accordance with the criminal procedure. Meanwhile, a change in court procedure came into effect while the trial of the defamation case was underway. This has barred the trial court from conducting further investigation into the allegations and evidence presented before it.

Until then, courts in the country did not strictly follow and apply the fundamental distinction and criminal jurisprudence.

In a civil case, if it comes to the notice of the court that parties had committed criminal offences such as forgery, breach of contract, and defamation, among others, the court suo moto conducted the investigations of the alleged crime and if found guilty, convicted the defendants.

The courts passed criminal sanctions even without criminal charges having been filed by the prosecuting agencies of the state.

Civil cases involve at least one plaintiff, the person who has been injured, and at least a defendant, the person who did the act or omission causing the injury.

Criminal wrongs are punished by imprisonment and fines. On the other hand, victims of civil wrongs are compensated with money for their injuries or damages. Just as crimes and civil wrongs are different, the manner in which civil and criminal cases are processed or tried is also different. The criminal process starts with the arrest and detention of the accused, and the filing of the criminal charges by the prosecuting agencies such as the police and the Office of the Attorney General. The relevancy and admissibility of the evidence as well as the standard of proof is also different in the criminal case.

The court can convict the accused only if the charges are proven beyond a reasonable doubt. On the other hand, the standard of proof required in civil cases is the preponderance of proof. The Supreme Court issued a notification on July 17, 2015, stating that in civil cases the judges do not have the authority, and therefore are not allowed to convict the defendant, even if the court comes to know that crimes have been committed. Instead, the court must hand over the case to the relevant authorities for investigation and filing of criminal charges.

Following the notice, the High Court and the Supreme Court reversed three judgments of the Thimphu dzongkhag court and acquit- ted an individual from all criminal liabilities because the investigation and criminal charges were not filed by prosecuting agencies.