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SC dismisses Nima Construction’s writ petition

Five-year old twin cases that have moved up the judicial system come to a conclusion

Suspension: The Supreme Court (SC), the highest appellate authority, has denied Nima Construction’s petition to issue a stay order against its contract license suspension order and upheld the High Court’s (HC) verdict.

With the court ruling in favour of Anti Corruption Commission (ACC) last week, Nima Construction will have to abide by the commission’s two-year suspension order that was issued on June 23 last year.

The SC stated that, although Nima Construction, as a private entity, had to maintain and protect its profession and integrity as per its mandate, the court established that Nima was not only involved in corrupt practices in the past, but also breached the country’s laws and rules.

“The ACC suspended its contract license for this reason, and not for vindictive reasons targeting Nima only,” the SC order issued on February 27 stated.  “There were several other companies, whose contract and trade licenses were suspended, because of the same reason.”

The SC also quoted His Majesty’s address to the nation during the National Day celebrations in Kanglung on December 17 last year -“Corruption is unambiguous – there is no great or small corruption. And no one can be above the law. But there is an even greater threat – ignoring corruption. That is why, corruption must be curtailed”.

And the section 40 (2) of Anti Corruption Act 2011, according to the SC order, also states that suspension and/or debarment shall be for a period commensurate with the seriousness of an act, constituting a cause for suspension and/ or debarment, which may range from a minimum of one to a maximum of five years, except that an individual or entity, who commits an act constituting a cause for debarment for more than once, shall be compulsorily debarred for a period up to five years.

“Therefore, the SC didn’t find a basis to overturn the HC’s ruling that was passed on September 1 last year,” it stated.

The SC also handed over Nu 45,000 deposited as litigation cost by Nima Construction to the ACC, after the court dismissed its petition.

Nima Construction appealed to the SC after the HC dismissed its writ petition on the grounds that, as SC is the highest appellate authority and final authority on its interpretation, the lower court had no authority to interpret or review the judgment.

The HC order stated that the SC issued an order on December 12, 2012 to take appropriate administrative action against the firm on the directives of the ACC.   The SC directed the relevant agencies to take administrative actions within three months and report to the ACC and to the court about the actions taken.

Nima Construction filed a writ petition on July 17, challenging the ACC’s suspension order as “arbitrary and unconstitutional.”  The ACC also violated principles of natural justice, doctrine of proportionality and applied the law retroactively, Nima challenged.

The firm’s contract license was suspended based on two cases, Yarkay Construction versus Ministry of Works and Human Settlement (MoWHS) concerning Supreme Court construction tender in 2007-08, and GT-03 case of Zhemgang-Trongsa highway in 2007-10.  It was alleged that the tender committee unfairly favoured the petitioner in the award of the Supreme Court contract.

In both the cases, the petitioner was never a party and, not being summoned, never made an appearance before the court of law. “Therefore, the impugned suspension order resulted in the grave injustice of petitioner being deprived of its constitutional right to liberty, due process and the right to practice lawful trade respectively,” the petitioner’s legal counsel submitted.

In the second case, pertaining to the GT-03 Zhemgang-Trongsa highway construction, the legal counsel said the petitioner’s employee was charged, but the petitioner was never charged with any wrongdoing. “Thus to suspend the petitioner’s license on the basis of a case, where the petitioner was not even charged with an offence, is a grave injustice,” he said. “The suspension is also unwarranted, as the petitioner had already been reprimanded by MoWHS for the events surrounding both cases.”

The issue surfaced in October 2007 after the MoWHS disqualified Yarkay group from partaking in the Supreme Court construction project.  Yarkay then filed a case with the Thimphu district court in November.  It took almost five years for the case to be settled.

By Rinzin Wangchuk

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