Friday, January 29, 2016

Choyzang Tashi /ACC/OAG Case Analysis:

There was quite a publicity about alleged corruption cases surrounding Choyzang Tashi, a Director in Government Service. More so because he had served as Regional Director and then as Director of Revenue and Customs. The allegation drew wide public attention because it came up during the ACC massive hunt in the alleged wrong doings of few officials of Revenue and Customs supposed  collusions with businessmen to avoid paying taxes on goods imported into the Country at the entry gates.

Now the case against Choyzang Tashi is in the Court. And strangely the case has nothing to do with Tax Evasion. And shockingly, the actual allegations are far removed from his official responsibility and authority as the Regional Director and then Director of Revenue and Custom.

The case filed in the Court is on charges of Forgery. However, the actual substance of the cases are more a case of Fronting than Forgery. The case is about trade licences issued in the names of the mother-in- law and sister-in-law of Choyzsng Tashi being leased to an Indian national on a monthly fee system. The fee is said to be Nu: 2500 per month. This arrangement is officially termed by Trade Department as Fronting. That means someone other than the actual licence holder is operating the business.

Now the charge against Choyzang Tashi is that he processed the formalities on behalf of his in- laws for obtaining the two licences. We all know that in our extended family society, it is a requirement by tradition for a family member to assist less knowledgeable members to get things done. How is it a crime for Choyzang Tashi to process the trade formalities for and on behalf of his in-laws as long as they the in- laws were fully aware of the deed and in fact had sought his assistance to obtain the licences. There is nothing illegality about it.

What is a forgery crime? It is a crime only if you forge some document or signature of another person with the intention to harm that person or accrue self benefit. Here the in- laws were not harmed. Choyzang Tashi did not personally benefit. In fact he helped his in- laws by processing the trade formalities and obtaining the licences.

Now one might say the trade licence rule was played around because the actual applicants had not signed the application forms. However, how did or how much Trade Department suffer as a consequence. Nothing. The Trade Department did not suffer any tangible loss. If the Trade Department felt the real necessity of ensuring nitty gritty formality correctness it should have insisted upon the licencee signing on the trade licence prior to handing over the same to the possession of the applicant.

Both the in-laws of Choyzang Tashi are Bhutanese citizens and there should be Police Clearance Certificates issued in their names that qualified them to apply for trade licence. Choyzang Tashi cannot fake Police Clearance Certificates for his in-laws.

The crux of the matter is that no matter who signed ( the applicant themselves or by someone on their behalf ), a Bhutanese would not have been issued a trade licence if he or she did not produce Police Clearance Certificate. Trade Department issues licences only to Bhutanese cleared to do business. Whether the applicant name is Dorji or Wangmo related to whom or from which region of Bhutan does not matter. And it should never matter. The fact that Choyzang Tashi a known official processed the formalities could very well speeded up the process. That is how things function in almost all fields. But licence would have been issued in the end even if the applicants had got some other lesser known persons to help them if they were  ill disposed to do the same by themselves.

Therefore, the forgery charges holds no water as long as the Applicants were fully involved as a party to the processing of the formalities by Choyzang Tashi on their behalf and as long as the monthly leased fee for the licences ultimately benefitted the licence holders. It was morally wrong for Choyzang Tashi to arrange the Fronting for his in- laws. But how many of us can pass the various morality tests. Even then let Trade Department authority decide who should be legally held responsible for the Fronting deed the actual licence holder or other third parties.

Bhutanese are still very much bonded to our age old tradition. The more knowledgeable and able must help the lesser able and knowledgeable among the extended family community. The more able are expected to look out for their lesser able members in employments, school seats for children and sometimes even help to set up business. There is no Social Security System in Bhutan. The more able members are the Social Security of the less able members in Bhutan.

How could ACC blow up the allegations to such high proportion? I for one thought that Choyzang  Tasji was being investigated by ACC for possible collusion with businessmen in evading taxes on imported goods. If that was the case then he had compromised and misused his official responsibility and authority and rightly he should be charge sheeted in the Court of Law. But for helping his in- laws in his personal capacity to process trade licence for the in- laws who are legally entitled anyway, it is absurd for ACC to waste such disproportionate time and money.  The case should have been handed over to Trade Department to handle as per Trade Rules and Regulations on Fronting.

The whole case surfaced because a licence in Bhutanese name was operated by an Indian. And so it is a clear case of Fronting and Trade Department has the capacity to deal with such cases under the Trade Rules and Regulations. The charges of Forgery tantamount to persecution under the facade of prosecution. And this should not be happening to Choyzang Tashi or any other Bhutanese.

Fronting is not permitted but it is widely prevalent. People do construction works under someone else contract licence. Bar licences are rented out. In fact there was quite a hala about Drayangs running Bars under leased Bar Licences.

The three in- laws of Choyzang Tashi are also being charge sheeted in the Court. The charges are based on their alleged attempt to tell ACC that Choyzang Tashi was not at fault. They themselves were responsible for Choyzang Tashi processing the licences for them. In total sum this was what happened.

People panic when ACC or Police Teams knock upon their doors in the dead of the night or out of blue. Therefore, their statements made under mental duress could vary. But Drangpons are professionals and their Honours have the inbuilt legal intuition to draw relevant conclusions from seemingly differing statements. 

I share this analysis purely out of my pursuit for Justice. Choyzang Tashi may have heard about me as I came to know about him. I do not know him or his family members socially. This analysis is just thoughts provoked by my natural interest in judicial matters upon reading about the court case courtesy Kuensel Issue of 28th January, 2016.

May Justice Prevail !

1 comment:

  1. Beside Chozang Tashi there are so many bhutanese from head to toes who does fronting business in especially in phuentsholing town, even Tashi commercials, zimdra, BOD, Damchen Petroleums etc all are fronting business that are operating. So, ACC should focus on those Business