The discussion on the prosecution by the police in the National Council indicates inconsistency in the house. When Anti-corruption Commission Amendment Bill was tabled, the basis of discussion was on constitutionality and now with Police Bill, it is based on administrative and logistical issues. Such inconsistency is a concern. Article 28 (3) of the Constitution mandates that the primary responsibility of the Police is “to maintain law and order and prevention of crime and serve as security force.” Article 27(1) mandates that the ACC “to prevent and combat corruption.” Article 29 (1) mandates the Office of the Attorney General (OAG) to “carry out the responsibilities within the domain and authority of the Government and other legal matters.” Article 27(6) and Article 29 (8) vest the parliament to define the functions of ACC and OAG through parliamentary acts. However, none of these provisions neither prohibits nor provides exclusive prosecution authority to any agency.
The preamble of the Police Act, 2009 states that the primary objective of police is “protecting and safeguarding the society and to strengthen and promote the primary responsibility of RBP for maintaining law and order and prevention and detection of crime.” Similarly, the primary objective of the ACC Act 2011 is “to prevent and combat corruption and act against corruption including detection, punishing and rooting out corruption and educate the public about corruption.” And primary objective of OAG is “to carry out the responsibilities within the domain and authority of the Government and such other legal matters as may be entrusted including providing professional legal advice, draft laws and represent the Government before the Courts.”
The only difference between Police and ACC in its primary function is that while ACC’s authority is to investigate, detect and prevent corruption only but the police enjoy the same authority in all kinds of crimes. While the prosecution is one of the primary mandates of OAG, the parliament also authorized both the ACC and Police with prosecution authority as an additional or secondary function. The scope of prosecution of prosecuting authority is much wider and broad in the case of police compared to ACC. For example, Section 71 of the Police Act authorizes the police to prosecute every case unless it is a misdemeanor and above but Section 128 (3) of ACC Act, ACC can prosecute only on three grounds, when the case is delayed without a valid reason, manipulated; or hampered by interference. Yet our legislature had serious debate including obtaining legal expert opinions by the National Council on the constitutionality of prosecution by ACC citing conflict of interest and OAG as the solely authorized prosecutor. Now the same House states that police must continue to prosecute ignoring the same role played by police- both investigation and prosecution. If prosecution by police is constitutional and why not ACC?
The prosecution by police is more prone to abuse as it is too wide, and not easy to differentiate whether a person should be charged with a misdemeanor or lower crime. Police are not trained as prosecutors. Further, Section 27 of the Pay Revision Act, 2019 introduced a 20% Prosecutor allowance for Prosecutors in the OAG. This means Police Prosecutors are deprived of allowance for the same work. Therefore, the legislature must be consistent in their research, debate and discussion and not be driven by logic or administrative convenience some instances and constitutionality in other instances.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.