The judiciary is not comfortable with the ACC prosecuting the appeal case

Judiciary: The judiciary fraternity is likely to advice against the Anti Corruption Commission (ACC) prosecuting the appeal case of Lhakhang Karpo conservation project at the High Court (HC).

The High Court is yet to receive three appeal cases from the Haa district court, which is expected to forward the files on Monday.

However, some judiciary officials have already indicated that the Office of the Attorney General (OAG), as the state prosecutor, should continue the prosecution. “Otherwise, it may set a precedence which is not healthy in a democracy,” a Supreme Court official said.

Such concerns are being raised after the OAG decided to hand over the case to ACC when it reaches the appellate court. Attorney General Shera Lhendup in an earlier interview had said that for the sake of fairness it would be more appropriate for ACC to take the prosecution task.

“In the interest of justice, it would be best if the appeal prosecution is carried out by the ACC itself because of involvement of a cabinet minister,” the Attorney General had said.

The legality of the document that led to the acquittal of the foreign minister and the project manager will now be contested in the HC following an appeal by the OAG on July 7.

The document’s legitimacy is one of the grounds of appeal against the Haa court’s verdict. 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.

The OAG had charged Lyonpo Rinzin Dorje for taking an unilateral decision in awarding timber sawing works worth Nu 1.403M (million) to LD Sawmill without consulting the tender committee and paying the sawmill at the original rate of Nu 37.70 per cubic foot (cft).

OAG’s prosecutors had already questioned the legality of the undated document, as the signed document hadn’t specified whether the committee had endorsed the work to be awarded at the original quoted rate.  The document was also overwritten.

While testifying, some of the seven tender committee members, including lyonpo Rinzin Dorje, who was the then chairman as the dzongdag, admitted before the court that they signed the document without any knowledge of what they were signing for. They also admitted that the committee hadn’t convened a meeting to discuss the actual awarding of contract work.

Most committee members were also ignorant of the decision to re-tender, the negotiation with LD Sawmill to reduce rate for sawing timber and of seeking a directive from the finance ministry. In fact, the foreign minister had been defending before the court, from his opening statement until the last evidence submission on April 20, that he took a unilateral decision to re-tender the sawing of timber as the lowest bidder quoted rate of Nu 37.70 per cft was 100 percent higher than the market rate.

However, dzongkhag forest assistant officer, Kado, who was one of the committee members, said that he approached the members individually to get their signatures on the undated document.

The committee members hadn’t discussed the issue but had signed on the same comparative statement for setting up the sawmill and sawing of timbers for the project that was prepared earlier after opening the tender in September 2011.  The prosecutors requested the court to fix accountability of committee members for not performing their duties with due diligence.

As per the penal code, a defendant shall be guilty of the offence of official misconduct, if the defendant knowingly refrains from performing a duty, which is imposed upon the defendant by law.

Section 99 of evidence act also stated that when any fact is within the knowledge of the person, the burden of proving that fact falls upon the person.

Project manager Wangchuk Tshering told Kuensel that he got this undated document from one of the files from the dzongkhag planning office.  The prosecutors also questioned the court for issuing back dated work orders to LD Sawmill by the project manager.

The OAG has also appealed against the verdict of project manager Wangchuk Tshering, who was acquitted after the court could not establish that he had a ‘criminal intent’ to embezzle funds.

The OAG is also appealing against the verdict of project engineer Tashi Gyeltshen, for considering Nu 100,000 as security deposit for un-sieved sand. Both accused had submitted conflicting statements to court.

Rinzin Wangchuk