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OAG and ACC make competing claims over prosecution

The Anti Corruption Commission (ACC) and the Office of the Attorney General (OAG), two institutions, seem to be not seeing eye to eye these days.

The contention is the authority to investigate and prosecute, which the two bodies are subtly accusing each other of doing or over doing.

They had faced off in the past. But the recent one follows the ACC’s moving the Supreme Court for taking over the roles of prosecution from the State Prosecutor over a tax evasion case.

The ACC appealed to the Supreme Court on August 29 after the Attorney General (AG) refused to appeal against the High Court’s larger bench ruling.

While the case is in the Supreme Court, there are questions asked on the two institutions contesting their role.

 

ACC’s mandate

ACC is empowered to prosecute under Anti-Corruption Act 2011. They did in the past.

A lawyer said that both ACC and OAG must avoid any action to protect their own institution or vested institutional interest. “Prosecution must be based purely on the basis of merits and in the interest of the nation and not because they disagree with each other,” he said. “As state machinery, they must exhibit adequate restrain in terms of institutional ego, stop blame game and work for the nation.”

Legal experts are vocal when asked about the issue. One said that where objectivity and integrity appear to be lacking in the veto decision of attorney general (AG), remedial action to defend the integrity of the criminal justice system is desirable, irrespective of who has prosecutorial and investigative role.

“OAG is the single minded entity of the AG. It is unquestionable strength of character and personal integrity of AG which is of paramount importance,” he said.

He added that ACC wearing the prosecutors hat like in the Gyalpoizhing and Trongsa land fraud cases and judiciary exercising its wisdom considering the larger national interest only demonstrates an evolving healthy check and balance system to promote accountability, transparency and public confidence in the criminal justice system.

However, the Constitution clearly states “Prosecution of individuals, parties or organisations on the basis of the findings of the ACC shall be undertaken expeditiously by the OAG. A lawyer said that the Constitution is clear on the roles. “Prosecution is with the OAG while investigation is the role of the ACC. Hence, the Constitution does not give right to the ACC to prosecute,” he said.

The lawyer who practices as legal counsel, however, said that Section 128(3) of ACC act allows the commission a leeway to carry out its own prosecution or take over the prosecution process when the case is: (a) delayed without valid reason; (b) manipulated; of (c) hampered by interference.

He said that if ACC submits an appeal for prosecution then the commission has to satisfy the court on any of the above provisions. “ACC has to prove either of the three grounds. Otherwise ACC is not legally and constitutionally allowed to prosecute.”

This provision, according to legal experts, should be read as the last legal recourse. “Both High Court and Supreme Court are mandated to interpret Constitutional principles. However, they have not done so either out of ignorance or intentionally letting the controversy to continue,” one legal expert said.

The High Court in 2015 overruled the ACC’s submission for taking over the roles of prosecution on the Lhakhang Karpo case stating that the court was not convinced that such issues had presumably arisen to discontinuance the prosecution by OAG as provided in the Section 128 (3) of ACA.

The court observed that the constitutional duty of the commission headed by a chairperson is primary to prevent and combat corruption and to investigate corruption offences for considering prosecution by the OAG. “Therefore, the roles and responsibilities of each institution provided in the constitution cannot be overridden,” the ruling issued on July 28, 2015 stated.

The ruling also stated that as the Constitution and ACC act mandate the ACC to make all prosecutorial references to the OAG except under section 128(3), it is constitutionally and statutorily obliged to abide by the lawful advise and legal opinion of the OAG so that no institution remains subservient to each other and involve into embarrassing controversy.

However, some still view it as unconstitutional as ACC and OAG often intermixed or encroached upon each other responsibilities although the constitution delineates clear roles of the two institutions.

ACC officials said that ACC is fully aware of its constitutional mandate to take necessary steps to prevent and combat corruption and the provisions in the ACA 2011. “ACC does not consider it unlawful in submitting appeals to higher courts when not satisfied with OAG’s decision not to appeal,” an ACC official said. “Ultimate ruling on the appeals submitted, whether to accept or not, rest with the judiciary.”

 

OAG’s mandate

The Constitution empowers the AG to institute, initiate, or withdraw cased in accordance with the law. While interpreting this provision, the High Court ruling stated that the AG, as the chief prosecutor and legal advisor to the government, must be guided by provision of laws, justice and good conscience while exercising due discretion. In other words, deciding to prosecute or not must be based on evidence and probable appreciation of it by the courts.

An important part of the AG’s responsibility in conducting criminal prosecutions, according to the former chief justice, Sonam Tobgye interpretation in his book “The principles and philosophies of the Constitution,” is to represent the public interest, which includes not only the community as a whole and the victim, but also of the accused.

“AG being the guardian of the rule of law has the power to institute or withdraw any case in the interest of the government and welfare of the people,” the former chief justice wrote in his book.

A lawyer said that there are various tests to be conducted for a case to be submitted for prosecution or withdrawal or to be refused to be prosecuted based on the tests as per the Office of the Attorney General Act (OAGA) 2015.

Some critics and even ACC officials also raised their concerns when the state prosecutor plays the role of supreme investigating agency to scrutinise the work of the constitutionally mandated state investigating agency. “Such duplication of the roles by OAG raises serious suspicion on the credibility and integrity of both the institutions,” an observer said.

OAG had dropped many cases referred by ACC from criminal prosecutions after initiating its own investigations on cases like Trongsa land fraud case, alleged bribery charge against the former survey and land records assistant director, takin restocking case and the embezzlement against the former RICBL’s CEO.

“I am not confident about OAG’s investigation because OAG is the state prosecutor where investigation is not in their domain,” a lawyer said.

OAG officials, however, said prosecuting agency could also investigate under its act. The act states that when the case proceedings are ongoing before the courts, if the office deems it necessary to seek additional information or evidence in the interest of the case, it could with assistance of the investigating agency or on its own obtain such information or evidence.

“We require further information and investigate when the facts are disconnected, liabilities misapplied and evidence we received are of poor quality,” an OAG official said.

The OAG in 2017 investigated a case in Tsirang. Calling it legal vetting, AG Shera Lhendup said legal vetting on the ground is compelling when the investigation done is unable to settle down clamoring public complaints.

“The Tsirang instance is a case in point where our vetting had let to assign liability to few perpetrators for collecting fees without legitimate license. The issue was settled for good with those legal vetting and action taken there on which the investigation alone couldn’t,” he said.

“Such legal vetting, if done rarely, has medicinal touch to hysteric public issues,” the AG told Kuensel.

Rinzin Wangchuk

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