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Monday, March 30th, 2015 - 11:46 AM
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Ambiguity in retroactive application of law

Analysis:Legal experts studying and comparing the country’s two notable court cases of Gyalpoizhing land allotment and the country’s first constitutional ones exposed some ambiguities between the judgments of the two.

It was found that the judiciary’s interpretation of laws pertaining to the two cases were “inconsistent” and “contradictory”.

One legal counsel cited the precedent set in the first Constitutional case where the Supreme Court, citing section 10 of the Constitution had ruled that any law, inconsistent with the provisions of the Constitution would be regarded null and void.

However, when it came to the Gyalpoizhing case, the High Court ruled that Anti-Corruption Commission could prosecute as mandated by its Act although it was in contention to the Constitution.

The OAG declined to prosecute the Gyalpoizhing land case arguing there was no legal basis to route the case through court of law.

“This SC’s interpretation of ACC’s provision also conflicts with the supremacy of the Constitution,” a lawyer from private firm said, adding that while Article 29, section 5 of the Constitution provided attorney general the sole authority to institute, initiate or withdraw any case in accordance with the law, Article 27 section 1 of the Constitution vests ACC the authority to prevent and combat corruption.

“Therefore, the constitution has exclusively granted authority to OAG as the prosecuting agency of the sate while role for the investigation of the corruption offences is confined to ACC,” he said. “How can we have parallel prosecuting agencies.”

On the other hand, the SC stated that the suspension provisions in the ACC Act may be valid but its application in most instances amounts to being inconsistent with the Constitution.

“The court must intervene and rectify the inconsistency and ensure due process of law and application of constitutional guarantees,” the SC guideline stated. “Therefore, under such circumstance, 167(1) and (2) of the ACC Act becomes ultra-vires and inconsistent with Article 7 of the constitution.”

Some private lawyers pointed out that both appellate courts had endorsed retroactive laws, which the Constitution prohibited.

The trial court had applied retroactively in the Gyalpoizhing case, which led to the conviction of the former National Assembly speaker, former home minister and 13 urban land allotment committee members for alleged offences committed before commencement of ACC Act, 2011.

In absence of laws, or prior to the enactment of specific legislations, kashos, circular, policy decisions and established customary practices form the basis for any administrative decision.

Some legal counsels, however, said the fundamental elements of the principle of rule of law ensures that after enactment of a particular law, the administrative authorities should execute and implement those laws and are required to function within the ambit of those laws.

Therefore, critics said that charges for Gyalpoizhing case defendants were in violation of His Majesty’s kashos and circular for the illegal plot allotment for the act committed in 1999 to 2002 after the enactment of Municipal Act 1999 through the will of the people was fundamentally flawed.

Legal counsel Jamyang Sherub Wangdi argued in the courts that ACC had the legitimacy to investigate or charge individuals to courts of law for supposed actions which happened before the ACC Act 2011 which is illegal, ultra vires to the ACC Act, civil and criminal procedure code of Bhutan 2001 and the Constitution.

“The action of the ACC is unconstitutional as there can be no retroactive application of the case that happened sometime between 1999 to 2002,” he had said.

He said that as per section 168(1) of the ACC Act, the authority for the commission to prosecute an individual is vested only if someone is charged with an offence committed under the said Act.

However, in the Gyalpoizhing case, ACC had charged individuals under different laws, which defeat the very purpose of a separate ACC Act that defines the mandate, functions and jurisdiction of the ACC.

In its guideline issued to ACC last week, the Supreme Court stated that ACC Act provided sufficient mandate to the Commission to investigate corruption cases retrospectively.

“Thus, as long as there were enacted laws penalizing criminal and corrupt acts when the offences were committed, it does not amount to retrospective application of criminal law,” stated in the SC guideline. “A crime remains a crime despite the passage of time. The argument that ACC Act 2011 does not apply retrospectively is redundant, as it pertains to the procedural aspect of the law.”

In the Gyalpoizhing case, some defendants were charged under Thrimzhung Chhenmo, which was repealed by the Bhutan Penal Code 2004.  “The acceptance of charges framed against an individual under Thrimzhung Chhenmo by the trial courts not only violated the procedural due process rights but also the substantive due process of the laws,” a legal counsel said.

Some critics also said that the Phobjikha case was dismissed by Wangduephodrang court in 2007 on the grounds that law cannot be applied retrospectively.

“If the court justifies or admits the offence under the repealed law, the institution which is supposed to provide justice through the proper application of the laws breaches the basic tenets of the rule of law,” another legal counsel who represented the Gyalpoizhing case said adding the ruling of both lower courts, therefore, was like prescribing old medicine for a new disease.

“With the adoption of Constitution as the country’s supreme law, any law, unless otherwise protected by the Constitution ceases to operate retroactively,” he said.

By Rinzin Wangchuk 

Late blight bites into Bumthang’s tuber yield

potaSaved: Farmers store what little they could save before the rain ruined it again

Farmers fear the disease will more than halve this year’s potato harvest

Agriculture: A potato disease called ‘late blight’ has resulted in a poor potato yield in Bumthang this year.

The disease is caused by complete “chlorosis”, browning and death of plant tissues, such as leaves, branches and twigs.  This has left many farmers worrying that they will not be able to harvest even the half of what they did last year.

Having incurred loss in 2011, some farmers had opted not to cultivate potatoes last year, but decided to take the risk this year, only to encounter the disease.

The disease had caused essential parts like leaves to dry up early, leaving the size of the tubers small.

Farmers and agriculture officials said it was also because of the untimely rainfall and change in climate, which led to dying of leaves.

Tshering Choden, 39, said it rained heavily in April, when the leaves were in full bloom, but the scorching sun the following day destroyed crops.

Despite having sown about 27 sacks of potato seeds, Tshering Choden said she might not be able to harvest even half of it.  One sack of potato seeds weighs 70kg.

“The size of potatoes this year is very small and the overall yield is very less,” she said, adding she fetched about Nu 100,000 from potato sale last year.

Another farmer, Kinzang Wangdi, 36, said, last year, he sowed 300kg of seeds, which yielded double what he sowed.

“The seeds didn’t even flower well and it all died,” Kinzang Wangdi said. “This year I think we’ll have enough only for self consumption and seeds for next year.”

Farmers said they had asked the dzongkhag agriculture office for help, but the pesticides and chemicals that they provided were of no use.

Dzongkhag agriculture officer, Gyelong, said the chemicals had not worked on the plants, because the rain kept washing it away.

“The main problem started around April with rainfall followed by sun and long dry period,” he said. “The disease had attacked and dried the plants, making it weak.”

Gyelong said there are also other components, which led to the drop in yield.  One was growing the same crop in the same plot every year.  If farmers practise crop rotation, he said, the yield will be better.

“Farmers need to change seeds frequently, they need to keep the field hygienic, they need optimum water supply and weed management, among others,” Gyelong said.

The agriculture office also trained farmers every year on land preparation, soil management, plant protection activities, post harvest technologies and how to handle potatoes.

According to the agriculture office, the average yield last year was 5,200kg per acre, but this year their estimation is only about 4,000kg per acre.

Some farmers are worried about the market price of potatoes this year, and also how they’ll be able to pay back the loan that they had taken from Bhutan Development Bank limited.

By Sonam Choden, Bumthang

Picture story

The construction of a new waste disposal yard in Bumthang was completed and handed over to the dzongkhag on July 29.

The waste disposal area was relocated to the present one near Kilila, 8km from Chamkhar town, after the previous area near Bhutan Power Corporation substation, about 5km from Chamkhar, had proven “unhygienic” for residents and guests.

BPC had proposed relocation last year, agreeing to bear the cost as well.

The works included construction of about three acres of waste disposal yard, 775 metres of approach road along with drains, fencing, wall for the approach road, two gates and a sign board all of which cost more than Nu 7.35M.

Only two doctors at P/ling general hospital

hospiWaiting: With three doctors short, patients queue like so for more than two hours since last two months for consultation in Phuentsholing

While, elsewhere patient’s waiting time has reduced, here it’s the exact opposite

Health: After three of its doctors left the hospital some two months ago, Phuentsholing general hospital has been grappling with a shortage of doctors, with the remaining two doctors attending more than 400 patients a day.

The officiating medical superintendent, Dr Manish Raj Gurung, said the hospital is still waiting for replacement of the three doctors.  One of them left for studies, another got transferred and the third’s (an expat) contract expired.

While hospitals elsewhere are working on reducing waiting time for patients, those in Phuentsholing hospital stand in queue for more than three hours to see a doctor.

Although the hospital has written several times to the health ministry, they have not yet received any positive response.

Most patients, who come to hospital as early as 8am to beat the queue, said they are irked with the waiting time, prompting many to say that it was a disgrace to see a hospital without enough doctors.

Tshering, 28, who came to the hospital with her year-old feverish daughter, said it was ridiculous that, of the five chambers at the hospital for doctors, only one is open.

“Whether you’re severely sick or not, we need to queue up,” she said. “This is a place with a huge population and yet only two doctors are available.”

Another elderly man said that just one doctor attending so many patients together could compromise on the quality of service. “That’s why we feel doctors just ask us what happened, look at us and prescribe medicines without even examining us well,” Tawchu Sonam, 32, a corporate employee, said.

The prime time for people to visit the hospital is between 9am and 11am, with more than 100 patients queuing up in front of the reception. “But even if they come in early, it still takes time because of only one doctor,” another patient Pema Wangda said. “Let’s hope the new health minister, who has lived in Phuentsholing before, does something about this issue.”

Residents said they often see patients arguing to enter doctor’s chamber first.  Dr Manish Raj Gurung agreed that the waiting time is worsening every day because of doctor shortage at the hospital. “If there were about five doctors at least at this time of the season, it would be good service to the sick.”

More than half the patients the hospital sees at this time of the year come with viral fever, common cold, skin infections and UTI.  Very few come to consult specialists. Phuentsholing general hospital, according to the annual health bulletin, 2013, is among the top three hospitals in the country that sees the highest number of patients in the country.

Doctors said they manage the outpatient department and ward simultaneously, with each of them managing to check about 150 patientsa in six hours, spending only about three minutes on each patient.

“It’s obvious patients will complain because we’re helpless too,” he said. “We can’t even adjust staff from other units because they’re also facing a shortage of people.”

He also added that, when the medical assistants have to leave for outreach clinic duty, some as far as three days walk away, the mother and child health unit, which has only four people, runs out of health workers to attend to those coming in for regular routine check-up.

“But they’ve been managing so far,” Dr Manish said. “We remain inside the chamber and we don’t even know what’s happening between patients.”

Meanwhile, the officiating medical superintendent said that the ministry has “marked” to send in doctors, including expatriates, but has not mentioned when. “We do under but we can hope to get one if not three doctors.”

By Yangchen C Rinzin,  Phuentsholing

Corporate social responsibility in action

plantationPlant and protect: The plantations near Wangdue zam

Among others, a plantation project to green the Wangduephodrang-Tsirang highway

PHPA: To make up for the loss of vegetation caused by the construction activities of Punatsangchu hydropower projects, plantation programs have been carried out along the Wangduephodrang-Tsirang highway.

Covering more than 10km along the highway, the Punatsangchu project I, so far, planted more than 3,000 saplings, which are grown in warm broadleaved and dry chirpine zone.

Locally raised on a five-acre land, species such as oak, silver oak, jacaranda, jummune, cypress, cassia, zyzyphus and bahunia are planted to add green along the highway, which is barren and dusty.

Chief environment officer of Punatsangchu I, Lobzang Dorji said, apart from giving life to environment, the plantation would beautify and add freshness in the landscape.

“The flowers and fruits will bring additional nourishment to the environment,” he said.

Facing the famous Chhimi lhakhang in Punakha, the project has also carried out mass afforestation activities at Wolokha barren area.  It cost around Nu 7.1M.

Stretched across an area of 64.21 hectares (ha), the project has planted a variety of tress, mostly pines.  In collaboration with the project, department of forest has covered 54.21ha of the total land.

The project has also invested another Nu 3.7M in a private consultancy firm for road mapping of a reclamation project, which will be built between Punatsangchu I and Punatsangchu II.

Lobzang Dorji said, once complete, the reclamation project will have a garden, park, an artificial forest area, recreational centre and river protection facilities with a proper lighting system that will give the place a new look.

Besides, the project also contributed thousands of saplings to gewogs in Wangdue, and schools and institutes in Punakha.

“We aim at increasing the forest cover in the valley,” Lobzang Dorji said.

At the community level, the project has provided a compressor truck for Mesina town at Lobesa, and a DCM truck for Punakha municipal to collect garbage and take it to Omtekha landfill.

More than 100 dustbins were also given to 103 residents in Lobesa.

By Tenzin Namgyel, Wangdue

Delay in plan implementation stymies local governance

11th FYP: While the second Parliament is yet to convene for the first sitting, which would then finalise and endorse the new government’s Plan, gewog officials in Trashigang expressed worries that implementation was getting delayed.

While a plan draft is in place, officials had explained that it was up to the new government to re-work on it and take its ownership.

Gewog officials said, once the plan was readied, the new government would have to mobilise funds, if it was not already done.  But injecting the fund, following certain procedure, for execution of developmental works would take more time.

“By then, it could go up till next year,” one said.

Some civil servants in the dzongkhag said it could either be end of 2013 or beginning of 2014 that PDP government would be able to actually begin with the development activities and programs of 11th plan.

Many said it would be mid September by the time the new government endorses the plan, that too only if Parliament session begins in the month of August.

Saying that no work could be done “without any money in hand”, one said it could only be done if government pumps some money from its own coffer as soon as possible.

“But that would be difficult since our government is low on budget,” he said.

The delay in the release of capital budget, some officials said, would obstruct development progress in both dzongkhag and gewogs.

Meanwhile, Trashigang dzongkhag administration is already doing paper work for the 2013-14 fiscal year.

“The officials are visiting proposed sites for feasibility studies, besides conducting surveys, designs and making estimations,” another civil servant said.

“This is to ensure that we’re prepared to begin as soon as the funds arrive,” the planning officer said.

By Tempa Wangdi, Trashigang

BJMC’s two losses and subsequent protests

footballGame over: BJMC Manager(right) takes his complaint to the officials at the changing room

King’s Cup: Besides the rain, it was the cautionary cards from the referee and plastic bottles from the spectators that powered in yesterday’s match between Three star club and BJMC.

Although BJMC, the Bangladesh team lost to Three star 1-0, the team could not accept defeat.

At one time during the second half, BJMC players were pulled back from the pitch and they intended to quit the match.

This did not go down well with the spectators who started throwing bottles at the Bangladesh players.

“You cannot put a Nepalese referee when a Nepalese team is playing by any international standards,” BJMC manager Amar Khan Joy said. “He (referee) was showering yellow cards as if he bought it from a shopping mall that he was distributing it for free.”

He said the referee’s decision was biased.

Whenever they were in a comfortable position to attack, he said the referee declared a foul which hampered the team’s strategy to counter-attack.

On the other hand, Bhutan Football Federation officials explained the referee gave the Nepalese team as many cards.

It was just that the same Bangladeshi player, BFF officials said, who was awarded two yellow cards resulting in his removal from the game.

The coach of the Three star said the referee being a FIFA certified referee would not, by any means, be biased.

“Our players were also given yellow cards and the referee also declared fouls on us at critical moments but we didn’t complain,” he said.

The Bangladeshi players blamed Bhutanese officials and the match committees for “poor official standard and management”.

The match went smooth until the first half.

During the 60th minute, Khan D Taza, the defender of the BJMC was given his second yellow card for pulling the Nepalese striker and was expelled from the game.

“That was a sure goal,” Three star coach said.

In absence of one of their main defences, BJMC, in the 69th minute suffered a goal.

Three star striker Dodos Zikaki used his nimble feet to bring the ball across the left corner towards the goalpost and crossed it to the right side of the box. Pukar BK of the same team intercepted the ball and kicked it to the opposite direction, confusing the goalkeeper, and into the net.

The lone goal sparked aggression in the Bangladeshi players, who also grew physical and began protesting.

“BJMC is a good team but instead of protesting unnecessarily, if they had focused on the game, they had a good chance for an equaliser,” a football enthusiast and regular spectator said.

At the dying minutes of the game, more players were injured.

Meanwhile, some officials said that from the very first day, BJMC was rude to officials.

In their second match, despite winning, a BJMC official was sent off the pitch for abusing officials on the field.

In their first match, they lost against Thimphu City FC and they protested claiming both goals they conceded were offside.

However, an official said after a second glance at the vedio-recording of the match, any foul play was ruled out.

By Tshering Dorji

29 teams enter knockout round

Archery: Of the nine venues, the 17th Yangphel open archery tournament completed league rounds in seven venues except for two in Thimphu and one in Phuentsholing.

A total of 29 teams from Punakha, Trongsa, Paro, Mongar, Gelephu, and Trashigang will play knock out rounds in Thimphu from August 13 after the three venues in Thimphu and Phuentsholing complete their league rounds.

Each team from the six districts played 45 rounds in three matches, the last of which ended in Punakha on July 29.

Seven teams each from Paro and Punakha, four each from Gelephu and Trongsa, five from Trashigang, and two from Mongar qualified for the knockout stage. ‘Rigsar Construction’ is the leading team from Paro with 17 points from 99 kareys

Trashigang completed their league on July 26 and from there comes five teams- U. Noks, Dorji Bhari B, T.Tobgyal Const, KDS & Dungsum Yongthrab, to be part of those 72 teams that will compete in the knockout round.

On July 27, Tenzin Namgay of Lingpas pulled a surprise performance, hitting 18 kareys, the highest one-day individual score of the tournament so far at Thimphu Upper archery range. He will now contest in the top 15 archers on August 18.

The highest one-day score ever of the tournament stands at 20 kareys by Tshering Gyelsthen in 2010. Tshewang Dorji of Pelden Group hit 19 last year.

A total of 267 teams participated in the tournament.

Meanwhile, Kurjey Drupchhu beat Bhutan IT and Bjenap Doros in the upper archery range yesterday morning at the Changlingmithang. In the afternoon match, Gangri tours and treks won against Ramis and Druk Darla construction in the same range.

On the other side, team Vajra defeated teams Mountain journey tours and treks and 45 Rounds in the morning match. Team Lamten United secured victory over Five United and Yonggyel in the afternoon matches.

By Tashi Phuntsho

Subsidy will be restored by August first week

fasTaking stock: Refilled gas cylinders stay piled at the depot in Motithang yesterday

Although the official confirmation comes from the prime minister’s office, trade officials said they were unaware

Fuel: Subsidies on cooking gas and kerosene will be restored first week of August.

This official confirmation came from the prime minister’s office yesterday evening.

This means Bhutanese consumers will be able to buy these products at prices that existed before July 1 when the subsidy was lifted.

An LPG would cost Nu 504 and not Nu 1,196.

Prime Minister Tshering Tobgay and Indian Ambassador VP Haran met yesterday and discussed the issue of subsidy withdrawal by the Indian external ministry in July.

A news release from the prime minister’s office stated that following his request, Ambassador VP Haran informed him that the Indian government would restore all subsidies starting first week of August.

Trade department officials claim they were, however, not informed of this confirmation.

Earlier this month, Indian media reported that India’s foreign secretary Ranjan Mathai had instructed the petroleum ministry officials to reinstate the subsidy on both fuels from August.

When the subsidy was lifted, which led to a significant jump in the prices of these products, words around town was that the move was politically driven as it came a fortnight before Bhutan went to the polls.

Before the election, the Indian external ministry had asked the Indian Oil Corporation (IOC), which supplies the fuel to Bhutan to lift the subsidy as it would be unable to reimburse the subsidy to IOC.

India’s stand on the move was that there existed discrepancies in terms of how much Bhutan reported as imports and how much India recorded as exports to Bhutan.

There was also a huge jump in the level of subsidy for these two products.

For example, the subsidy bill for cooking gas and kerosene imported by Bhutan had increased from Nu 330M in 2011 to Nu 550M in 2012, which was a 66 percent increase.

This meant Bhutan was misusing by way of deflecting the subsidised goods back to the Indian market.

After the elections however, Ambassador VP Haran clarified that the sudden increase in the subsidy had nothing to do with deflection and it was rather because of increase in global oil prices.

The subsidy level increase is at par with the increase in these fuel prices in the global market, which the government buys but sells it to its people at a subsidised rate.

The difference in prices is the loss the government bears.

Meanwhile, gas depots in the capital city are preparing for a loss, which they will be bound to incur during the time the subsidies are restored.

Tashi Commercial Corporation’s gas depot manager in Motithang, Karma Thinley explained that the company has to keep its stock so that the supply is not constrained.

When the prices drop, we would even have to sell the old stocks, which had been bought at the existing rates at the new ones, meaning the difference in the price will have to be borne by the company.

For example if today 100 cylinders were bought at the existing rate of Nu 1,196 and if prices dropped suddenly to Nu 504 a cylinder, the company will have to bear at least an additional Nu 69,200 for the 100 cylinders.

Karma Thinley estimates at least 300 cylinders would be bought at the existing rates and stockpiled. Should the new prices be effective from August 1, the losses would be around Nu 270,000.

Soon after the July rush for LPG, the depot had been informed by the trade department to control the supply of cylinders and maintain limited stocks to avoid losses.

“Earlier, we used to keep as many as 1,000 cylinders in stock,” he said. “But in July we realised we would only run into losses should there be any price changes.”

The sale of LPG had dropped significantly after July 1. Before, the depot sold around 400 cylinders a day, after July 1, the sale dropped to an average 160 cylinders a day.

This could mean consumers are waiting for the prices to drop.

“Our manual works have been reduced greatly because not many people are coming to buy cylinders today,” Karma Thinley said. “But with people who come to buy cylinders, we spend a great deal of time arguing and explaining the increase in prices.”

A corporate employee said while she waited for the prices of cylinders to drop, she was using electric cookers as an interim measure and going sparingly on the gas.

“It was worth the wait after all,” she said.

By Nidup Gyeltshen 

Thimphu shops see a run on scarves

Khada: Ap Sangay, a shop owner in Thimphu, had to rush in search of additional scarves (khada) from other shops, having run out of stock, towards the evening of July 27.

More than 300 people walked into his shop, looking for scarves that day.

“I even went to shops near centenary market and around Thimphu town hoping to get scarves in bulk,” Sangay said.  But the shops had little or no scarf let to sell.

His friend, Lekey Dorji, who also owned a shop in town, said this was the first time after the coronation celebration in 2008, where they sold about 400 scarves in just one day.

Tashi tshongkhang in Thimphu had also sold more than 100 scarves costing between Nu 30 to Nu 150.

“Majority bought the medium sized khada, which cost Nu 50, and during such occasions, many went for those with Tashi Tagay (eight lucky signs) print,” the owner said.

Huge number of people living in Thimphu and those that had come in from other dzongkhags had bought the symbolic scarves to welcome the new prime minister and his cabinet on that day.

By Bhutanese tradition, khada offering during celebrations was significant of wishing good luck.

The khada offering ceremony began in the prime minister’s office and respective ministries after, the team received dakyen from His Majesty on Saturday morning.  In the evening, it continued at their homes in enclaves for the minister, while for the prime minister, it was at his home in Taba.

Following the event, the newly appointed ministers, who were showered with scarves of all kinds, are left not knowing what to do.

The minister for foreign affairs, Rinzin Dorji, said that, since it was a huge bunch of scarves, he wasn’t sure what to do with them all.

Smiling, he said he might have to give some to relatives running shops in order to recycle.

The new health minister, Tandin Wangchuk, said, since each scarf cost Nu 100 to Nu 250, he distributed most of it to those, who came to wish him that day.

“While in Punakha, when we went to offer prayers to machhen of Zhabdrung, we distributed some to people, who came without scarves to wish us,” he said. “We also left some with our relative-monks here to use on future occasions.”

He intends to use them during the appointment of Parliament members in days to come.

DN Dhungyal, the minister for information and communication, said he kept scarves in office for re-use in future, while also distributing it to some people.

All the ministers encouraged re-using of scarves to save cost as well as to prevent wastage.

Besides individuals, even offices and organisations bought scarves in bulks.

“Our office bought about 240 scarves for 21 staff, which cost about Nu 33,000,” Thinley Wangchuk, a corporate employee said. “We went in a group, officially representing the organisation.”

Meanwhile, shopkeepers said scarves come in about six different qualities, and the prices vary, depending on quality.

While families opt to re-use it for different events, shopkeepers said they don’t take back the sold scarves since they came from different occasions, which was not always auspicious.

“Some also come in wrinkled, which customers refuse to buy,” Sangay said.

Shopkeepers are already gearing for yet another bumper sale, when the rest of the assembly members will be officially appointed.

By Dawa Gyelmo