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DNT VP innocent until proven guilty, say lawyers

The Druk Nyamrup Tshogpa vice president’s (VP) nomination to contest the general election has raised questions given the fact that he is among the six people charged of alleged fraud in an insurance claim case.

The VP, who was also the former Dzongkha Development Commission secretary, Sherub Gyeltshen, filed his nomination as the party’s candidate from Mongar constituency to contest the general round of the parliamentary elections 2018.

One of the mandatory documents for the nomination of his candidature was the affidavit from the court ruling him out of any criminal conviction.

The VP is among the six people the Office of the Attorney General charged in the false insurance claim amounting to Nu 226,546 at the Thimphu dzongkhag court on May 14.

Sherub Gyeltshen was charged with fraud for submitting false intimation letter to Royal Insurance Corporation of Bhutan Limited (RICBL) stating that his Toyota Prado that allegedly met with an accident at Lamperi on the Thimphu-Wangdue highway on July 19, 2016, around 10.50pm.

DNT president Lotay Tshering, while responding to a question about the case when the party declared the candidates for the general round, said that one has to be criminally convicted to be disqualified from contesting in elections.

“Dasho Sherub Gyeltshen’s case is a civil case which is not even decided,” he then said.

DNT has maintained that it was a politically motivated case from the beginning.

The party officials said that the case was charged to court with exceptional haste and had received unusual attention from the OAG.

Sherub Gyeltshen had said he is not worried about the case.

There are two provisions under the Election Act 2008 that are related to issue like this.

Section 179 subsection (G) states that a person shall be disqualified as a candidate or a member holding an elective office under the Constitution if the person has been accused of a felony in a pending case and the competent Court has taken cognisance and charges have been framed against him or her.

The case in Thimphu dzongkhag court is a criminal case. However, the charges come under petty misdemeanour.  The prison term ranges between a month and a year.

A felony is a crime punishable with imprisonment for a minimum of three years under the penal code of Bhutan or any other laws of any nation.

Lawyers explained that as long as he is not charged for a felony, he couldn’t be disqualified as per this provision.

Moreover, Sherub Gyeltshen, they said, has the Constitutional right to be considered innocent until proven guilty. “So legally, there is nothing wrong in him contesting despite a pending case in court,” a lawyer said.

Section 179’s subsection (A) of the Act states that the candidate or a member holding an elective office will be disqualified if he or she has been convicted for any criminal offence and sentenced to imprisonment.

This section is drawn from Article 23 of the Constitution on elections. The Constitution disqualifies a candidate or a member holding an elective office under the Constitution if the person is convicted for any criminal offence and sentenced to imprisonment.

The Election Commission of Bhutan (ECB) interprets criminal conviction as a judgment by a court which declares a person guilty of an act of violation of a law and for which he or she is given a prison term.

The ECB has guidelines for implementation of the two subsections, A and G, under Section 179 of the Election Act relating to disqualification of nominations of voters convicted for a criminal offence or pending criminal charges, 2018.

Sentence of imprisonment, according to the ECB, means an order of a court within the country or a criminal court outside Bhutan requiring a person to serve a prison sentence for committing a criminal offence.

In the guidelines, ECB states that a person found guilty of an offence under the Penal Code or for a similar offence by a court outside Bhutan shall be considered to have a criminal record irrespective of whether it is a compoundable or non-compoundable offence or whether he or she has or has not served a term in prison or paid fine in lieu of imprisonment and barred from contesting elections under Section 179 (a) of the Election Act.

Tshering Palden

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