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Have we undermined the law?

Lately, both media and social media platforms in Bhutan have been flooded with the exchanges of corruption allegations, and threats to sue each other between the government and the Opposition. Both accuse each other that their allegations are politically motivated, which I agree they are. Otherwise, I don’t see any reason for such exchanges of allegations in the public. But what does this mean to law? Should we be worried? I think we should be.

Before I delve into this issue, let me issue a disclaimer that this piece is not intended to side any political party, or is based on partisan ideology. However, it merits academically examining how law may be undermined in such heated exchanges of the allegations. I do so by allowing relevant provisions of law to converse with their press releases, and relevant media reports. Both the government and the opposition as part of the executive and legislative branches of the government have an even higher degree of responsibility to give law its due regard.

Corruption is evil and that is why the Constitution establishes a separate institution to look after corruption issues. There are relevant laws passed accordingly. The Anti-Corruption Commission (ACC) is an independent institution established by the Constitution giving exclusive power to investigate corruption cases. It is required to function as per the Anti-Corruption Act 2011, which provides for a quieter way of dealing with corruption cases not having to throw balls of allegations from one institution to another. The allegations as handled now, appears more like a media trial that confuses people. Right now, both the government and the opposition appear childish in their approaches, and our leaders need to grow up. More importantly, they need to analyze legal issues thoroughly before they release their ‘press releases,’ or issue order to other government or independent agencies.

Among these corruption allegations and other related issues, the first issue we need to understand is, the power to investigate corruption cases, or even other cases generally. On February 1 2018, Kuensel reported that OAG completed the investigation of Tsirang loan scam, which was conducted on the government’s direction. The question we need to ask is under what legal authority did the government direct OAG, and similarly under what legal authority did OAG assume the power to investigate a criminal or a corruption case?

As per Section 83(2) of the ACC Act and unless otherwise mentioned in the ACC Act itself, it is only ACC that has the power to investigate complaints or enquire for information. Section 128 of the same Act states that ACC is required to refer the case for prosecution to the OAG, and OAG under the same provision of the Act and Article 27(5) of the Constitution is required to undertake prosecution of individuals, parties or organizations on the basis of the findings of ACC expeditiously for adjudication by a Court. As per Section 16 of the Office of Attorney General Act 2015 (OAG Act), OAG is required to prosecute criminal cases when referred to it by an agency of the Government under the relevant laws. However, the Section 25 of OAG Act allows OAG to review facts of the case, and if it deems additional facts are necessary, then it can ask the referring agency to provide additional facts. Therefore, there is reason why OAG is not authorized to re-investigate the case, but rather ask for additional facts. As per Article 29(5) of the Constitution and the Section 70 of OAG Act, the Attorney General has the power to institute, initiate, or withdraw any case in accordance with the law.

When you read these provisions together, it is clear that OAG has no authority either under the Constitution or other relevant laws to investigate a case. OAG has power only to either refuse to, or to institute, initiate, or withdraw any case in accordance with the law. Section 83(2) of ACC Act strongly bars any other agency from investigating corruption cases except the ACC.

Therefore, when OAG is not authorized under any law to investigate a case, it follows that the government cannot direct OAG to do something, which they are not authorized to do. Conversely, as the Office Attorney General is government’s legal representative, it has the responsibility to advice government against issuing such directives. However, the government’s press release claim that, “based on prima facie evidence, the government should have directed the Attorney General to directly file case in the courts of law against the former minister…” I could be wrong, but I couldn’t find any legal provision, which allows the government to direct OAG to directly file a case in the courts of law.

What follows is that the Constitution under Article 20(8) prohibits the Executive from issuing any executive order, circular, rule or notification which is inconsistent with any provisions of a law, and such order, circular, rule or notification shall not have the effect of modifying or superseding any provisions of a law. When you look at the effects of the government’s direction allowing OAG to investigate a case, it is clear that it is inconsistent with, and attempts to modify and supersede provisions mentioned above including those of the Constitution. This therefore sets a very dangerous precedent.

The second issue we need to consider is requirement to follow complaint procedures. Throwing stones of allegation to each other is not warranted at all – it is not at all necessary. If there is no mechanism in place to deal with such issues, then may be it is somewhat justifiable, but Section 77 of the ACC Act prescribes procedure for lodging complaints. A person, public servants, or a person who holds a position of authority has the duty to lodge complaint with ACC against any person or entity that has committed or is attempting to commit a corruption. Unfortunately, neither ACC Act nor the Complaint Management Policy and Procedures Manual 2012, define “a person who holds a position of authority.” However, Annex 1A (Complaints Management flow chart) of the Manual seems to suggest that the Royal Audit Authority, the Parliament, the Cabinet, and other government agencies can lodge a corruption complaint.

In the Opposition’s press release, they claim that they have exercised restraint from lodging complaints with ACC on possible corrupt acts of the government. The question is if they genuinely believed that a corrupt act is committed, can they exercise restraint not to report corruption? Section 77 of ACC Act is clear  – that a person or a public servant is mandated to report corruption. The Opposition members either individually or as a person, as a public servant or as members of the Parliament have the legal duty to report corruption. The government as well appears to agree when they responded to the Opposition’s press release, stating that, “the government is surprised to note that the DPT is convinced of the wrong doings and corruption of the government but had thus far condoned it.”

But the larger question is, why all this hue and cry in the media? Don’t they trust the independent institution established by the Constitution? Article 27 (1) of the Constitution, and Section 6 (1) of ACC Act states that ACC shall be an independent authority. Section 77 of the ACC Act provides mechanism to lodge complaints. According to Section 6(2) of ACC Act, ACC shall not be subjected to the direction or control of any person or authority.

When you read these provisions together, either the government or the opposition, or for that matter a person’s responsibility under Section 77 of ACC Act ends once the complaint is lodged with ACC. Neither the Constitution nor other relevant laws provide a person or an authority to report corrupt acts in the media, and initiate media trial to justify their allegations. Once the complaint is lodged, they should allow ACC to do its duty. Such unnecessary heated arguments or allegations may unnecessarily influence ACC’s decision, challenging its independence guaranteed by the Constitution and ACC Act. The government and the opposition should restraint from trying to push ACC through such media drama. It would be wise for our leaders to lodge complaints, let ACC and agencies authorized by law do their work, and not confuse the people and polarize them.

The government and the opposition, I genuinely believe have more pressing work to do than coming up with not very well thought out press releases. All they need to do is lodge complaint through walk-in, telephone, fax, post or ACC website as provided by the ACC Complaint Management Policy and Procedures Manual, and move on to doing other important tasks they are entrusted to do by the Constitution and the people.

Frankly, I don’t like this idea of a political party or the opposition suing the government, or government threatening to sue the opposition. The people of Bhutan didn’t elect members of the Parliament to represent them in the courts of law. They are given this sacred institution in the name of the National Assembly, and the Parliament to discuss and sort out their differences, and work for the benefits of the country and the people. I think people would like to see that our leaders find better ways of dealing with such problems, not threatening to sue each other, and misleading people into divisive thoughts and discussions. The government and the opposition should work to bring people together, not to divide them. They should work for happiness of the people, and if they can’t do that, may be at least they shouldn’t disturb people’s happiness by forcing them to listen to or read these disturbing exchanges of allegations.

 

Contributed by

Nima Dorji

Nima Dorji is a Senior Lecturer with the Jigme Singye Wangchuck School of Law. He is currently pursuing PhD at the University of Victoria in Canada.

 

Disclaimer: The views and opinions expressed in this article are those of the author and do not reflect the views or opinions of the employer, and it is done so in exercise of his fundamental rights of freedom of speech and expression.

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