In Bhutan, a Facebook Post Leads to Defamation Charges
Image Credit: Image courtesy of Namgy Zam

In Bhutan, a Facebook Post Leads to Defamation Charges


As a journalist in Bhutan is facing charges of criminal defamation for sharing a Facebook post, the government of the Himalayan kingdom has jumped on the case to justify new restrictions it wants to impose on the use of social media.

Prime Minister Tshering Tobgay says he disapproves of any “divisive debate” and expects a “landmark” judgment in the defamation lawsuit filed by a businessman against freelance journalist Namgay Zam. Tobgay’s government is working on a social media policy to determine what can and can’t be posted on Facebook, Twitter and so on.

Tobgay says he is in favor of “vibrant discussion.” In the Bhutanese context, that could mean disciplined expressions that would help preserve the aspect of Bhutan’s culture that sees public criticism of the elite as being offensive.

Enjoying this article? Click here to subscribe for full access. Just $5 a month.

Hence the fuss about Zam’s Facebook post, which was about the businessman, Ap Sonam Phuntsho, also known as Ap SP, and his civil lawsuit over a property dispute at the Supreme Court. On August 10, Zam posted on her Facebook page an online petition written by another young woman, Dr. Sacha Wangmo, whose family is fighting the case against Ap SP.

Ap SP is demanding Ngultrum 2.59 million, or $38,500, from Zam and Wangmo. He says Zam’s post went viral, causing an “irreparable damage” to his reputation. The damages he is claiming are worth 10 times the average annual salary of a management executive in Bhutan.

However, this case is not just a private feud between two parties with a journalist caught in the crossfire. It’s much more than that.

Ap SP is the father-in-law of the Chief Justice of Bhutan, and Dr. Wangmo alleged in her online petition –among other accusations — that he tampered with the documents he produced in the court to claim her family’s property and that he threatened to use his relative’s influence in the court.

While the Supreme Court verdict — coincidentally delivered hours after the Thimphu district court held the first hearing in the defamation suit on August 18 — went in favor of Ap SP, he doesn’t find himself vindicated yet.

Bhutan’s judiciary is arguably the least corrupt in South Asia, but its reputation among the country’s people doesn’t appear to be as good as the establishment would like us to believe. There is no concrete data to prove that, but it was visible in the comments that poured in after The Bhutanese newspaper posted the news about the highest court’s verdict on its Facebook page.

Of course, the country’s topmost judge, or any official for that matter, cannot be held responsible for a relative’s action or reputation. But at the heart of the debate is how the elite in the country and their close relatives are treated differently than common citizens, although the country professes to care for the happiness of all its citizens through its much-touted policy of Gross National Happiness.

While the decision of the Supreme Court must be honored by all parties concerned, the order seemingly failed to uphold the universally accepted principle that justice should not only be done, but must also be seen to be done, as well as the judiciary’s constitutional mandate “to inspire trust and confidence and to enhance access to Justice,” as stated in Article 21(1).

This consideration speaks to Zam’s likely intention behind reposting Wangmo’s grievances. The property lawsuit raised some serious, and as yet unanswered questions.

At the trial court, Ap SP claimed to have paid an advance of Ngultrum 18 million, or $270,000, to Wangmo’s sister, Sonam Wangmo, to buy the property she jointly owned with her mother, Tandin Bidha. Sonam challenged that claim — and then disappeared. Bidha also challenged the sale deed. The court found that her supposed thumb print on the document was indeed fake. Ap SP accused Sonam of the forgery and absconding, but the court declared the agreement to be null and void. The High Court reversed that decision.

Ap SP claims he gave Ngultrum 18 million to Sonam within five months, including Ngultrum 12 million, or $178,735, at one go. All payments were in cash. Ap SP was, however, not asked how he managed to get so much cash or what his source of income was, and nor were the receipts for the advance payment or the agreement sent for a forensic test, despite Wangmo and Bidha’s plea to the court to do so.

This left room for suspicion amid unanswered questions.

Ap SP, with whom I spoke on the phone, could have possibly explained how and why he had so much money in cash, if given a chance. The judiciary would have done itself a favor by asking him for an explanation.

Such inquiries were reasonable also because Ap SP’s name figured in the 2011 WikiLeaks cables for what the U.S. Embassy in New Delhi called “continuing and serious fraud issues.” Specifically, the cables describe his role in an alleged scheme to smuggle Bhutanese nationals into the United States.

Ap SP explained to me that he merely sought to help a Bhutanese woman get a U.S. visa by lying to the American embassy that she was his wife. He claimed the woman parted ways with him after reaching the United States. However, according to the WikiLeaks cables, Ap SP arranged for several Bhutanese nationals to travel to the United States under false pretenses.

Did any government agency in Bhutan investigate the case? If so, the information has not been made public. Like the recent property case, questions remain unanswered — and when Zam tried to draw attention to that angle, she was hit with a defamation lawsuit.

The issue is perhaps mainly about Bhutanese sensitivities, and not so much about favoritism or nepotism — at least one hopes so. It’s not just the government; even many Bhutanese people don’t want to publicly discuss Ap SP’s case, as the chief justice (his son-in-law) is appointed by the king, though in consultation with the National Judicial Commission.

The king is respected and trusted by almost all Bhutanese people and is credited with protecting the landlocked country’s stability and sovereignty, despite it being sandwiched between two competing Asian powers, India and China.

However, sections of Bhutanese society apparently fail to distinguish between the authority that the king has earned due to his wise and benevolent leadership and the authority that the Bhutanese elite enjoy by the virtue of their office and relationships. It benefits the elites — and not the country or the institution of monarchy — when an inquiry into their deeds is equated with pointing the finger at the royalty.

Even the country’s private media are reporting on the defamation case and the property dispute as straight, “he said-she said” news stories, while media outlets that are under partial government control are writing vague but preachy editorials on the “responsibilities” that accompany the right to freedom of speech, merely alluding to the two cases.

Bhutan is now a constitutional monarchy, and a democracy that the people received as a gift from their king in 2008. The people’s full participation in matters that concern the nation — including the smooth operation of the judiciary — will only help fulfill the king’s vision.

Bhutan’s unique situation is understandable. It cares for its reputation and has a sense of geopolitical vulnerability, based on the region’s history. But officials’ apparent fear that civil freedoms might result in divisions and unrest, which could be exploited by some vested interests or foreign forces, doesn’t hold water any more.

Peace is a noble national goal, but seeking peace by limiting civil freedoms with debates that are “vibrant” but not open and free is like a pigeon who closes his eyes when the cat comes. Ignoring the need for the people to debate Bhutan’s weaknesses is not a certificate of patriotism, and nor are efforts to acknowledge the country’s soft spots a mark of disloyalty to the nation — at least they shouldn’t constitute criminal defamation.

Sign up for our weekly newsletter
The Diplomat Brief