Laws and the constitutional roles of ACC and OAG should not be intermixed or encroached upon each other, says  the High Court

Lhakhang Karpo: The High Court Bench I issued an order yesterday asking the Office of the Attorney General (OAG) to continue prosecuting foreign minister Rinzin Dorje in the Lhakhang Karpo case it appealed to the court.

The court also directed the OAG to submit the grounds of appeal within 10 days from the issuance of order for prosecution responsibility.

The order issued after the counsel of the Anti-Corruption Commission (ACC) moved the court for taking over the roles of prosecution from the OAG in the ongoing Lhakhang Karpo case during the show cause hearing on July 27.  The court overruled the submission based on the interpretation of Article 29 of the Constitution concerning the functions and constitutional roles of the OAG and that of the ACC as per Article 27 of the Constitution.

Article 29 section 5 states “The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law.” Article 27 section 1 states “There shall be an ACC, headed by a chairperson and comprising two members, which shall be an independent authority and shall take necessary steps to prevent and combat corruption in the kingdom.”

Article 27 section 5 states “Prosecution of individuals, parties or organisations on the basis of the findings of the commission shall be undertaken expeditiously by the OAG for adjudication by the courts.”

The interpretation of Article 29 section 5 provides that the Attorney General has the sole power to institute, initiate, or withdraw any case in accordance with the law.  This provision when read with section 3 and 4 of the said Article, vest the Attorney General with the power to tender any legal advice as the chief legal advisor and the legal representative of the government and in the performance of duties. The Attorney General shall have the right to appear before all courts.

“This court establishes that by the interpretation of the above cited clauses, the Constitution mandates the prosecution of individual, parties or organisation on the bases of the findings of the commission by the OAG,” the court order stated.

However, the OAG as the chief prosecutor and legal advisor has the sole authority to institute, initiate, or withdraw a case but must be guided by provisions of the laws, justice and good conscience while exercising due discretion when deciding to prosecute or not. It must be based on evidence and probable appreciation of it by the courts in dealing with matters relating to the institution or withdrawal of cases. “Therefore, the Attorney General must be independent of political interference and act in accordance with law,” the order stated.

The court also observed that the constitutional duty of the ACC is primarily vested with the constitutional responsibility to take necessary steps to prevent and combat corruption and to investigate corruption offences for considering prosecution by the OAG. Hence, the court observed that the constitutional role for investigation of corrupt offences is confined to the ACC and the prosecution to the OAG.

The next issue of concern for the court, the order stated, is the interpretation of section 128 (3) of the ACC Act concerning its power to prosecute. It provided that the commission may carry out its own prosecution or take over the prosecution process when the case is delayed without valid reason, manipulated or hampered by interference.

Under the present circumstances, the court is not convinced that such issues have presumably arisen to discontinue the prosecution by the counsels of OAG as provided in the ACC Act.

The court further observed that the Constitution enshrine principles while substantive laws provided details. Section 6 of Article 27 of the Constitution provides that the ACC shall function in accordance with the ACC Act and similarly section 8 of Article 29 provides that the AOG shall function in accordance with the OAG Act.

“Therefore, the laws and the constitutional roles of these two constitutional functionaries should not be intermixed or encroached upon each other unless in the circumstances as provided under the ACC Act.

The particular section of the ACC Act empowering the commission to prosecute itself or take over the cases has to be understood from the intent of the subordinate legislation subservient to the Constitution. The Court order also stated that the role of the prosecution confined to ACC under the said section, in order to sustain must be read as stringently as possible, as the roles and responsibilities of each institution provided in the Constitution cannot be overridden.

The court order stated that the OAG’s legal status goes with the sovereign will of the people which is formed as the basis of government elected through periodic election. Accordingly, the government of the day is answerable for the action of the government and the Attorney General is bound by laws and the Constitution in the discourse of duties in matters relating to advising government, giving legal opinion, and for prosecution of offences referred to by the institutions without fear, favour or undue delay.

“As the Constitution and the ACC Act mandate the ACC to make all prosecutorial references to the OAG except under section 128 (3), it is constitutionally and statutorily obligated to abide by the lawful advise and legal opinion of the OAG so that no institution remains subservient to each other and involve into an embarrassing controversy,” the order stated.

Attorney General Shera Lhendup welcomed the court order. “We are grateful for the final wisdom of the court that settles down institutions and habitual claims of self righteousness,” he said. “We fully respect the order and is obliged to execute it as per every hairline of the wise order.”

“After all, none is infallible and ultimately subject to social censures of democratic culture,” he said. “There is limit to institutional courtesy one can extend towards the hard work one has dedicated during one’s term but ultimately we all must come to term with the timeless rule of law.”

By Rinzin Wangchuk