In what the Judiciary of Bhutan has called as a “case involving a deliberate miscarriage of justice,” two judges of the High Court have been suspended. The case concerns drug smuggling and possession involving two defendants. While details of the case have been elaborately provided in a press release by the Judiciary, there is no concrete information about the duration of the suspension, if the two defendants would face further trial, and others.
Meanwhile, the Prime Minister’s Office (PMO) said that the Prime Minister received the information a few days ago and that a letter has been written to the Attorney General (AG), Office of the Attorney General (OAG) seeking his stand on the case.
According to Article 29, Section 3 of the Constitution, “the Attorney General as the chief legal officer shall be the legal advisor to and legal representative of the Government.” Sections 4 and 5 say, “In the performance of his or her duties, the Attorney General shall have the right to appear before all courts,” and “The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law,” respectively.
While the paper could not contact relevant agencies about further details of the case, the Judiciary’s press release states that the Thimphu Dzongkhag Court, based on the evidence, convicted both the defendants and sentenced them to an imprisonment term of 5 years each.
As per the Narcotics and Psychotropic Act of Bhutan 2018, Spasmo Proxyvon Plus (SP+), the drug that was in possession of the two falls under Schedule VII. According to the Act, if one is found in possession of more than 20 pieces (10×2) of the drug, it is a felony of third degree, leading to imprisonment of 5 to 9 years. If one has 19 pieces or less of the drug but tests positive for the drug, the victim is considered as an abuser. If, with the same quantity, the accused tests negative, he/she will be charged for possession. Thus, it indicates that the two were charged with the above offence.
There is also a lack of clarity concerning the suspension of the judges. According to the Judiciary, “the suspension of the two Justices is in keeping with the Judiciary’s mandate as enshrined under Article 21 of the Constitution and in line with the transformation efforts.”
However, legal experts say that suspension can be interpreted in many ways and that justices of the High and Supreme Courts are Constitutional post-holders, who do not fall under the Judicial Service Act of Bhutan.
Meanwhile, sources said that in the coming days, more details about the case, including the OAG’s stand will emerge.
Following is the press release from the Judiciary
Suspension of Two Justices
The Judiciary of Bhutan has suspended Justices Pema Rinzin and Tshering Dorji of Bench I, High Court with immediate effect.
Reason for Suspension
The two Justices have been suspended for having caused a deliberate miscarriage of justice in a case related to drug smuggling and possession involving two defendants. One of the defendants is the son of a Kuensel Reporter. The other was caught with possession of SP+, and upon interrogation, he named the Reporter’s son as a supplier. Upon investigation and search, a large quantity of Spasmo Proxyvon Plus (SP+) was discovered in the possession of the Reporter’s son.
The Office of the Attorney General (OAG) prosecuted them for drug smuggling and possession in 2019. There were also numerous bank transactions and WeChat messages between the defendants. The Thimphu Dzongkhag Court, based on the evidence, convicted both the defendants and sentenced them to an imprisonment term of 5 years each. The defendants appealed to the High Court and their case was assigned to Bench I.
While the case was sub-judice at the High Court, it was found that the Kuensel Reporter, the present Attorney General and one of the two Justices had gone for an overnight trek to Phajoding. After the trek, Bench I rendered a judgement in the case, with a total reversal of the Thimphu Dzongkhag Court judgment. The judgment reasoned that the defendants tested positive upon a urine test, based on which instead of 5-year imprisonment, the two defendants were ordered to undergo compulsory treatment in a rehabilitation centre for a duration of 3 to 6 months.
Problem with the Bench I Judgement
The Narcotic Drugs, Psychotropic Substances and Substance Abuse Act (NDPSSA) differentiate between the offence of illicit trafficking and substance abuse. While the offenders of substance abuse are liable to undergo compulsory treatment and rehabilitation for a certain period, the offence of illicit trafficking of narcotic drugs and psychotropic substances is a felony crime. Moreover, one of the defendants was found to have been convicted for the same offence in 2015, making him a recidivist which Bench I failed to consider in the judgment despite having substantial evidence in this regard.
Further, it was observed that though the OAG normally appeals against such total reversal of judgments, in this particular case, the Office did not appeal to the Supreme Court. How the Issue came to Light As part of the recent Transformation and Assessment exercise of the Judiciary, controversial judgments were assessed and reviewed. During the process, the Grievance Cell of the Judiciary received complaints citing collusion among the Kuensel Reporter, the Attorney General and the Presiding Justice in the particular case.
Accordingly, the committee of three high officials from the Supreme Court and High Court investigated and looked into the legitimacy of the complaint received by the Grievance Cell. Based on the committee’s report, the Supreme Court issued a direction to the High Court ordering a review of the case, in the interest of justice and upholding the Rule of Law. A Special Bench at the High Court, after a thorough review, found that Bench I had indeed caused a grave miscarriage of justice.
The Special Bench reversed the decision of Bench I affirming the Thimphu Dzongkhag Court’s judgment. The defendants appealed to the Supreme Court. The Supreme Court dismissed their appeals stating that the judgment of the Special Bench is fair and has observed the due process of law. The suspension of the two Justices is in keeping with the Judiciary’s mandate as enshrined under Article 21 of the Constitution and in line with the transformation efforts. It is a testament to our commitment to uphold the principles of justice and fairness.
Sangay Rabten from Thimphu
