The Anti-Corruption Commission (ACC) dropped the case against Major Dorji T and Lt. Col Kinley Dorji while appealing against the High Court’s (HC) judgment, which acquitted 11 officers and seven non-commissioned officers (NCOs) and reduced sentences for four officers and two NCOs.
The commission officials stated that they did not appeal against the judgment rendered to the two officials, as there were no corroborating evidence.
The military court in Lungtenphu convicted Major Dorji T in December last year for embezzling Nu 287,711 while serving as the administrative officer of the fourth batch Desuung training programme.
The High Court’s bench II acquitted him of the charges on October 26.
The military court also convicted Lt. Col Kinley Dorji of embezzling Nu 315,069 while serving as the administrative officer during the second batch desuung programme. The HC’s bench I acquitted him on October 3 along with Major Sonam Lhagyel, Major Jurmin, Major Ugyen Nidup and Lieutenant Ugyen Dorji, and NCOs Peljab Wangchuk, Peljab Sonam Dorji, Peljab Sangay Drakpa and Peljab Tashi Phuntsho.
ACC has appealed against HC’s bench III judgment rendered to Lt. Col Karma Tharchin, Lt. Col Rinzin Yeshey, Lt. Col Ugyen Norbu, Major Lingi Jamtsho and NCOs Peljab Sonam Dendup and Pelpon Zepa on October 24 to the larger bench on November 9.
The larger bench dismissed the case on the same day, stating that ACC does not have the right to appeal, as it is not the prosecutor and that it would be unconstitutional to accept the appeal.
The larger bench cited section 27.5 of the Constitution, which states, “Prosecution of individuals, parties or organisations on the basis of the findings of the Commission shall be undertaken expeditiously by the Office of the Attorney General for adjudication by the courts” as the reason for dismissing the appeal.
It stated that the section makes it evident that the commission has no right to prosecute. “Even in the present case, the prosecuting agency is Royal Bhutan Army and only RBA prosecutors can appeal.”
It also cited that the Anti-Corruption Act 2011’s section 128 (1 and 2) spells out specifically that the commission’s primary duty is to investigate and not to prosecute. “Thus, for the commission to prosecute cases or appeal on judgments taking the role of a prosecutor is unconstitutional and will also violate the Anti-Corruption Act 2011,” the order stated.
The order stated that the individuals and the prosecutor, the RBA, had not appealed within the appeal period. “As per section 31.2 of the Civil and Criminal Procedure Code, ACC being an investigating agency only in the case does not have the legal standing to petition.”
While Major Kinga Norbu, Major Sonam Tshering, Major Tshering Tobgyel, Major Ugyen Lhendup and NCOs Peljab Wangchuk and Tanka, who were convicted by the HC’s bench II on October 26, appealed to the larger bench and the case is under trial, ACC officials said that they will appeal against the other officers who were acquitted by bench I to the larger bench.
The commission officials say they wait until the last date to appeal, as they wait for the RBA prosecutors’ decision. “We appeal since they don’t do it,” an official said.
The officials said they would now approach the Supreme Court (SC) and appeal against the larger bench’s dismissal of the case of Lt. Col Karma Tharchin, Lt. Col Rinzin Yeshey, Lt. Col Ugyen Norbu, Major Lingi Jamtsho and NCOs Peljab Sonam Dendup and Pelpon Zepa.
The ACC had already appealed to SC after the larger bench dismissed the appeal against Major Sigay Tshewang in August.
It was learnt that no hearing was conducted on the case until yesterday.
ACC officials did not share the grounds of appeal this time although their grounds of appeal during Major Sigay Tshewang was that given the mandate to prevent and eliminate corruption, the commission having a role in the case was affected by the judgment of the court.
An official from the commission said they do not want to reveal the grounds of appeal to the media this time, as they have some other elements.
Meanwhile, dropping the case against the two officers have raised some brows, as people following the case closely question how ACC could drop the case when it was followed until the HC.
A source said the modus operandi was the same for all officers and there were also other officers, who were charged with much lesser amount. “ACC should not have charged the two officials to the military court only if there were no corroborating evidence.”
An ACC official, however, said it was RBA prosecutors who charged Major Dorji T and Lt. Col Kinley Dorji to court and not ACC. “We just gave them our report.”