Libel charge: Question on freedom of Expression

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Supreme Court of Bhutan Photo: BNS file

By BNS Staff Reporter

Justice delivery in Bhutan’s legal system has been always very poor and it has not improved since the advent of democracy in 2008, though a major face-lift of traditional laws came in effect.

At the time when people were questioning about the procedures of legal system after Supreme Court issued clean chit to the former Foreign Minister Rinzin Dorji, another case came as hot cake to debunk the inherent nepotism in the court system of this kingdom.

A freelance journalist Namgay Zam is dragged to the district court for libel.
On August 9, 2016, Namgay Zam had updated her Facebook status with a story of Dr. Shacha Wangmo stating a victim fighting legal battle since 2014.

An i-petition titled, Justice for Shacha, was launched to reach a goal of 1000 signatures. 1002 people have signed as of this report is being prepared.

The issue went viral and gathered mixed responses on social media.

On August 16, 2016 to everyone’s surprise Namgay Zam updated her wall stating, “I, along with Dr. Shacha Wangmo have been charged with libel. The preliminary hearing is on the 18th August (Bench 1) at the district court.”

But Bhutanese blogger Wangha Sangey has no reason to see the bending of laws in Bhutan and thus updates his blog:

“If there is even an iota of truth, the Authority that appoint Judges must act on impeachment.   And if not, this attack has to be taken as attack against Bhutan and accordingly dealt with. The nation cannot have corrupt Justices and the nation must certainly take to task any and all who subvert the peace and stability of the Kingdom by viciously attacking national institutions on baseless grounds.”

It has been learnt that Namgay Zam has written to Journalist Association of Bhutan(JAB) for the support in this regard.
August 16th issue of the Kuensel has quoted JAB President, Rinzin Wangchuk as saying “Association feels that lower court shouldn’t have accepted the case as the same issue is being reviewed by the Supreme Court. This has aggravated the situation and is going viral on social media.”

While the case is being handled by Supreme Court and a subordinate court simultaneously, it appears that the focus of the legal procedure has shifted from the original case of property transaction to defamation on the pretext of libel. There seems to be no question raised by the court whether Sonam Wangmo and her estranged husband also has joint ownership of the property owned by Tandin Bidha.

Now when social media is filled with such a compound case lingering for almost three years, Namgay Zam, who is not a party to the property transaction case, is simply dragged to legal battle.  And for that matter, Namgay Zam is evidently alien to the series of fraudulent acts, forgery and misrepresentation drama played by the two wealthy families of Bhutan.

The libel charge registered against Namgay Zam has opened can of worms through social media seeking definitions of the Article 7 of the Constitution of Bhutan that speaks about the fundamental rights.

Supreme Court: August 18th
The Supreme Court on August 18 has passed the verdict asking Tandin Bidha to pay Nu. 18M to Sonam Phuntsho in 90 days. Otherwise, Sonam Phuntsho would gain half of the worth of the disputed property (Building). The court’s decision to declare the thumbprint null and void without sending it to forensic lab for examination is simply putting the available evidence to silence.

District Court: August 18th
Towards the defamation case, Sonam Phuntsho has claimed Nu.2.5M as the compensation towards the defamation caused. Namgay Zam and Dr. Shacha Wangmo are asked to submit rebuttal on September 26th.

Prime Minister Tshering Tobgay: August 20th
During  the 26th meet the press session, Prime Minister Tshering Tobgay is reported by the Kuensel as saying, ” Defamation case will be a landmark case.”

If, the issue highlighted in the story by Dr. Shacha  stating Sonam Phuntsho doing all such dealings claiming himself as the father-in-law of the Chief Justice Tshering Wangchuk,  is true; and that the Supreme Court passes verdict bypassing all the requests made by Tandin Bidha including forensic examination of thumbprints used by Sonam Phuntsho- it may lighten the trust of the people towards the judiciary system in the Kingdom.

The content of the story as said written by Dr. Shacha Wangmo and posted by Namgay Zam on her Facebook page reads:

“Hello everyone,

I am Shacha Wangmo, 26 years old from Chandana, Toebisa, Punakha. I am a doctor by profession. I graduated from the University of Kelaniya, Sri Lanka in 2014.

I was happily doing my internship in JDWNRH when I got exposed to the harsh reality of life or should I say the harsh reality of the judiciary system of Bhutan.

I have a very small family. I have just one older sister. My sister and I were brought up by a single mother after my father’s demise. My mother worked very hard to give us a comfortable life and a good education. It was her dream to see me become a doctor.

This is how everything started:

I have an estranged brother-in-law who had borrowed around Nu. 7 lakhs almost 2 and half years ago from a person called Ap Sonam Phuntsho, the proprietor of Bumthang Sonam Kuenphen School, who does not fail to let everyone he meets, know that he is the father-in-law of the current Chief Justice, Lynopo Tshering Wangchuk.

Somehow my brother-in-law couldn’t pay back the money and Ap SP started adding compound interest. After compounding for some time, the amount reached 30 lakhs from 7 lakhs as per ap SP’s calculations. Then Ap Sp found out that my brother-in-law has nothing on his name so he made my sister sign as an agreement stating that my sister borrowed 30 lakhs from him. The worst mistake my sister did was listening to my brother-in-law. She also hid this from my mom. Then Ap SP started adding interest on the 30 lakhs. He knew my sister’s weak points- she listened to her husband and was hiding things from her mother. He took advantage of this, and even started eyeing our property in Changzamtog.

The property at Changzamtog is a five-stored building comprising of 21 units with joint ownership. The Thram is in my mother and my sister’s names. Ap Sonam Phuntsho maintains that my mother and sister sold the building to him at Nu.350 lakhs on 31st March 2014. He claims to have signed the agreement with my mother and sister in Thimphu, and that he has paid Nu.120 lakhs as token money. My mom had no idea about this. My sister, by then, had tried seeking judicial help. She appealed to the district court against Ap SP. She still hid everything from my mother fearing that my mom would get sick since she is a heart patient.

District Court Bench four:
When I came to know about the case, the verdict was almost being passed in favour of Ap SP. The verdict stated that the building belonged to Ap Sonam Phuntsho. This was happening without my mom’s knowledge and consent. I appealed to the court stating that I, being the daughter of Aum Tandin Bidha had some right over the property (that was the only way to halt the court proceeding). The court kindly gave me a week’s time to study the case. In that one week, I discovered that the thumb impression of my mother on the sale deed was forged, and that my my sister had been forced to sign several documents under compulsion. She had appealed to the district court stating that she had been forced to sign the documents under compulsion, and that she had been conned.

I tried my best to settle the matter outside the court so that I could keep my mom away from the stress. I didn’t want to worsen her sickly condition and give her a heart attack. I went and met Ap SP. The first meeting itself gave me a clear picture that he is not human. I asked him if he could tell me the real amount without compounding interest, so we could settle things peacefully, but all he said to me was that he was not going to budge an inch. He told me to my face about another case of his (Major KT Penjor’s wife owed him 17 lakhs which he compounded to 79 lakhs. He had the guts to tell me all the details to prove that he could compound interest any way he wanted). I warned him that if my mom appeared in court, he would get penalized. But he was so confident that nothing and no one would be able to penalize him. Now, after having gone through the whole judiciary system, I know why and how he was so confident. At that time, the judiciary system was alien to me. All I knew and believed was that justice prevails, and truth always wins. Now, I know how stupid I was.

After a while, I had no option but to involve my mother. I had to tell her about the case, but sadly on the day that I told my mother, my sister disappeared. It has been almost two years since she disappeared. She is still missing. We have no idea about her whereabouts. We don’t know if she is alive or dead, whether she ran away on her own or whether its someone conspired to keep her away from the case. If she was here, things would have been really easy and simple. My mom prays every second for her to return to us soon, and safely.

After everything was laid bare to my mom, she bravely acted on the situation. She appealed her case to the district court (same ongoing one) stating that she and my sister had not borrowed any money and nor had sthey old any property to Ap SP. She requested the court to send the thumb impression for forensic examination, and also consider BNB as a first rightful mortgagee. That was when Ap SP confessed that the forensic examination was not required as it was not my mother’s. He also confessed that he had not paid the amount to my mother and sister. After his confession, the district court passed a verdict stating that all the agreements were invalid. Since the signatures on the receipts produced by Ap Sp were tampered, the property’s first rightful owner is BNB, and then only my mother Tandin bidha. Ap SP was warned.

Ap Sp appeals to High Court:
My mother and I met with the Chief Justice after the high court passed the order to freeze our house rent, stopping us from paying the loan installment. We assumed that his father-in-law must have been abusing his name without his knowledge so we tried to explain our situation to him, but he refused to listen. We told him about his father-in-law threatening us several times using his name. Sadly, we could not convince him. He asked my mother to leave his office repeatedly, but my mom persisted in pleading. I got frustrated, and was very disappointed in him. I literally dragged my mother away from his office after saying several nasty things to his face. Someone as ordinary as me got away with this behavior because I believe his conscience was not clear.

High court:
The high court nullified the detailed investigation done by the district court (without any clarification) and passed a verdict stating that my mother, Tandin Bidha, is liable to pay the huge amount of Nu. 195 lakhs to Sonam Phuntsho within 3 months. If she fails to do so, the building has to be handed over to Ap Sonam Phuntsho. The court completely wrote off BNB as the first mortgagee. In fact, the legal representatives from the BNB were not even called for hearings.

Supreme Court:
I, on behalf of my mother appealed to the Supreme Court. All we asked for in our appeal was to send the thumb impressions on my mother’s name for forensic examination and consider BNB as the rightful owner, but after sitting on our case for about five months, they dismissed the appeal stating that there was no basis the and High Court had passed a just verdict.

I finally appealed to His Majesty in January 2016 after which the case was reopened. Again during the hearings, we only requested them to send the thumb impressions on the sale deed for forensic examination, and consider BNB as a first rightful mortgagee. But every hearing has disappointed me more and more.

When my mother repeatedly requested for the forensic examination of the thumb impression and Ap Sonam Phuntsho’s source of income, my mother was told that the “forensic examination must have been already done by the lower courts.” This clearly indicated that they had not gone through the documents submitted by the district court. Instead, my mother was questioned about how she managed to build two buildings in Thimphu. They never asked Ap SP about his income source, and how he manages to have a lot of cash to lend to people. Throughout our court journey, no one asked him to justify his income.

We approached ACC too. The Commissioner there asked his staff to write a detailed story but asked us for additional evidence. They asked us if we had phone records or people as witnesses. I know they are just doing their job, but how can ordinary people like us get the phone records of such mighty people? We were wasting our time there.

Our appeal to all level of courts is to verify the thumb impressions on the agreements that are supposedly my mother’s. My mother has not borrowed any money from Ap Sonam Phuntsho. In fact, my mother saw him for the first time only in court. My mother is the rightful owner of the property that Ap SP claims to have bought. He has encroached on private property and has even taken furniture from our building while the case is ongoing and the court has banned the legal owner from collecting rent. Ap SP appears to be the most powerful person today. He is above the law. He is not punishable for forgery nor for money laundering. He is not punishable for trespassing. His admission to such unlawful acts does not mean anything to many of our judges.

I do not believe that justice will prevail even this time round. I cannot even bring myself to hope.”