Curtains fall on OAG sedition theatrics

OAG’s 9-page sedition charges against Penjore dismissed within 9 minutes by the Court, displaying that the judiciary is willing to protect citizens’ rights and assert its independence

By Tashi Namgyal

In what could be a landmark case involving freedom of speech, freedom of expression and freedom of media, the dismissal of the Office of the Attorney General’s (OAG) sedition charges against Penjore by Bench I of the Thimphu District Court has sent out a strong message.

Observers and legal experts are already lauding the wisdom, discretion and maturity displayed by the Court in this particular case. Many said that if this case was accepted by the Court, every Tom, Dick and Harry will file sedition charges against the other which will undermine the sanctity of the legal system.

“It is a strong message that we cannot shoot a duck with a cannon ball,” a former Drangpon said.  “I think it is a win for freedom of expression in general. Penjore was just the trigger to set things into motion.”

He said that from a legal perspective, the dismissal of this case by the court tells that the judiciary is a separate and independent body, and that all are equal before the laws (Section 2 & 3 of the CCPC).

A senior journalist said, “If the Court accepted this case and convicted Penjore of sedition, it would not only be Penjore on the receiving end, but it will very well be the end of freedom of speech and expression in this country,” a senior journalist said.

“The Courts will be thronged with sedition cases every other day,” he added.

On the charges OAG submitted to the court

Legal experts opined that OAG is the legal arm of the government which provides legal opinion and represents the government before the courts/tribunals.

A private lawyer said that it is never in the mandates of the OAG to oversee and take action on the defamation of officials, institutions, country, etc. and other crimes.

“In this case, the OAG had gone beyond its mandates,” he said, “known as ultra vires in legal terms”.

The OAG also made the charge sheet public on its official Facebook page on Friday morning.

Law experts said that usually a charge sheet is not made public by the prosecutor-OAG/RBP/ACC. It can be made public by the accused if he/she wants. Nonetheless, there is nothing wrong with the OAG making the charge sheet public, before or after, provided that the charge sheet is submitted to the court.

“But the OAG can be sued if that charge sheet which is made public is not submitted to the court at all,” the expert said.

He said that making a charge sheet public before the court hearings will evoke public sympathy, which might in turn put pressure on the judiciary and eventually the verdict or the outcome of the case.

The OAG in its charge sheet accused defendant Penjore of sedition under Sections 331 (a) and (e) of the Penal Code of Bhutan 2004.

It stated that defendant Penjore had “maligned the country for many years by making series of scurrilous and malignant written statements on social media platform “Facebook” against the State, with the particular intent to defame, encourage contempt and incite hatred against persons occupying positions in public institutions, and undermine the rule of law, democratic principles and reputation of the country.

It further accused the defendant of “undermining the unity and integrity of Bhutan by creating animosity and disaffection among the people…”

However, Thimphu District Court dismissed the case stating that there was no concrete and seditious content in the charge sheet filed by the OAG against Penjore.

The primary reason for dismissing the case being change in charges, the OAG earlier sought remand order for Penjore with defamation and libel charges. However, when the OAG submitted their charges on Friday, Penjore was accused for sedition.

It was also found that the OAG mentioned judiciary in the case, against which, the court justified that there was no complaints from the judiciary at all.

In the nine page submission, the OAG labeled the case as ‘The State Vs Penjore’. For this, the court reasserted that the OAG and the State must never be treated as the same, and that if the court accepts the case, a wrong precedent would be set which will undermine the rule of law.

What next?

Although Penjore is dismissed of sedition charges, he is not immune from the defamation and libel charges. The OAG could still pursue with the case.

However, it is learned that the OAG will not appeal the case (sedition) to respect judicial independence. The corpus will also not pursue defamation and libel charges since the defendant has already served pretrial detention.

Meanwhile, law experts said that Penjore must not take this as a win on his part completely.

“He was a victim of an error committed by the OAG in applying the law. He can still be charged for his social posts if wanted by the victims other than OAG, but the OAG cannot take up such case for others,” an expert said.

Meanwhile, individuals and nitizens who had been closely following the ‘State vs Penjore’ debacle said the Court dismissing the case is an indisputable act by the judiciary in upholding the rule of law and ensuring that freedom of expression was not trampled in the country.

A senior journalist of a weekly said the Judiciary showed both wisdom and mercy in its handling of the case yesterday, and in doing so it has elevated itself and Bhutanese Democracy to a higher level.   

“It was the perfect chance for the Judiciary to ‘fix’ Penjore after his years of criticism of the Judiciary and Judges on online forums. I think many lesser institutions and people would have jumped at the chance to take revenge on Penjore. Let’s get real – many of our senior officials and agencies are prone to being vindictive when criticized,” he said.