They blame Parliament and Judiciary for not upholding the Constitution
Could the Anti-Corruption Commission (ACC) both play the role of an investigator and prosecutor? This is the big question as the section of the Anti-Corruption Amendment Bill 2021 will be re-deliberated in the upcoming Parliament session.
If ACC could both investigate and prosecute is not new. It began right after the first elected democratic government passed the Constitution, the supreme law of the State, in 2008.
With the third Parliament session starting from June 2, the Joint Committee (JC) of Parliament will re-deliberate section 128(3) of the Anti-Corruption Amendment Bill 2021 to see whether to uphold last year’s decision or not. The section provides the Commission to carry out prosecution or take over the prosecution process when cases are either delayed without valid reasons, manipulated or hampered by interference. Both National Assembly (NA) and National Council (NC) retained this section when they deliberated the Bill last year.
The ACC’s mandate, as per the Constitution, is to investigate and take necessary steps to prevent and combat corruption. Prosecution of individuals, parties or organisations on the basis of the findings of the Commission should be undertaken expeditiously by the Office of the Attorney General (OAG) for adjudication by the courts.
The Parliament in 2011 amended the Anti-Corruption Act (ACA) 2006, but retained the same provision, which is seen today as a direct violation of the Constitution. As per Article 1(10), any provision of laws which are inconsistent with the Constitution is null and void.
Needs for soul searching
The Sixth session of the third Parliament directed the JC to re-look into the provision after the NA’s Good Governance Committee (GGC) dropped ACC’s proposal to insert an section to the exceptions where ACC proposed to prosecute cases if the OAG returns, withdraws or does not appeal a case without valid reason. NC was in favour of ACC’s proposal. If the Parliament enacts the Bill, it would further deform the law, according to legal experts.
The Commission proposed the new insertion, as a check and balance measure although this may be used in the rarest of rare cases.
Legal experts and those involved in drafting the Constitution feel that the JC should look into the constitutionality issue to prevent further controversies. “This is the right time to rectify section 128(3), which is ultra vires to the Constitution,” one constitutional expert said.
NC’s GGC chairperson, MP Nima said that members met informally with OAG, ACC and judiciary to get their feedback and views on the impugned section 128(3). He said that the OAG was strongly against the prosecution role played by ACC.
Legislators not consulting legal experts leads to enacting deformed laws. “This results in controversies during the enforcement,” a High Court justice said. “If Parliament allows parallel prosecutions in a small country like Bhutan, it will have a serious consequence on people’s liberty and rights guaranteed by the Constitution,” he said.
There are three MPs with law background in Parliament. “It indicates that they are not guiding their fellow MPs in making laws,” one practicing lawyer said.
Constitutional experts say that the legislature should pass laws that serve the purpose and intent of the Constitution. “It should not be served for institutions which are emotionally competing for their existence,” one expert said. “Our Constitution is very clear”.
Article 1 Section 10 states that “All laws in force in the territory of Bhutan at the time of adopting this Constitution shall continue until altered, repealed or amended by Parliament. However, the provisions of any law, whether made before or after the coming into force of this Constitution, which are inconsistent with this Constitution, shall be null and void”.
Conflicting court orders
Although the Supreme Court (SC) issued an order in 2013 stating that it was not unconstitutional for the ACC to prosecute, legal experts still maintain that it is “unconstitutional” as the SC overlooked Article 27 section 5 which is conflicting with ACC’s own Act. Some concerns were also raised on conflict of interest related to both investigation and prosecution carried out by ACC. “When ACC plays both roles, they can become vindictive to win the case,” one said.
Contrary to SC’s order, the High Court (HC) on July 28, 2015, issued an order based on the Constitutional principles and harmonisation of the laws when the counsel of ACC moved the court for taking over the prosecution role from OAG on the Lhakhang Karpo case. The court overruled the submission by interpreting Article 29 of the Constitution concerning the functions and constitutional roles of the OAG and that of the ACC as per Article 27.
The court reasoned that without the fulfilment of Section 128(3) of ACA 2011, ACC cannot invoke the section to prosecute cases. The HC ruled that in the present circumstances, the court was not convinced that such issues have presumably arisen to discontinue the prosecution by the counsels of OAG.
The HC also issued another order in August 2018 dismissing ACC’s submission to prosecute a Desuung case. The order stated that the ACC does not have the legal standing to pursue the case. It stated that the commission was involved in the case only as an investigating agency and has no hand in prosecution. Allowing the commission to prosecute the case would be unconstitutional, it stated.
A judiciary official, however, said that the SC order was subject to review and not legally binding. Registrar General of SC, Gembo Dorji said that stakeholders will have to abide by the SC’s order since SC is the guardian of the Constitution and the final authority on its interpretation.
ACC officials earlier said that the particular section should be retained to bring check and balance between OAG and ACC. The past cases that were successfully prosecuted by ACC, according to a statement shared with the media last year, bears evidence to the need of such measures besides the SC clearly stating that the Section 128(3) is not ultra vires to the Constitution.
ACC’s chairperson, Deki Pema, had said that prosecution under such exceptional circumstances and rare occasions could hardly constitute distraction towards a subsidiary activity as it would indeed not only be consistent, but actually necessary to the mandate of preventing and combating corruption.
ACC prosecuted Gyalpoizhing case, JPLP tax case and the recent Trongsa land case and won the cases.
This happens only in Bhutan!
Lawyers and legal experts Kuensel talked to agreed that OAG could have dropped the Gyalpoizhing case in 2012 as there were two politicians from the ruling government involved. However, two other cases according to practicing lawyers set a bad precedent.
For instance, in the JPLP tax evasion case when OAG accepted HC’s ruling and decided not to appeal in 2018, the ACC without any jurisdiction appealed to SC and won the case. “How can the Supreme Court entertain such an appeal since prosecution was successfully done by OAG in two lower courts,” a practicing lawyer said.
Legal experts said that the SC allowing ACC to appeal was “unprecedented”. “No law supports such practices,” one said. “This happens only in Bhutan.”
When Kuensel asked whether there is a provision where ACC could appeal, both media spokespersons from ACC and SC didn’t have answers other than citing the same analogy of ACC Act Section 128(3).
In the Trongsa case, ACC reinvestigated to gather additional information after the OAG dropped the case for lack of evidence and not following due process of law. In an earlier interview, OAG officials said that instead of referring back to OAG with additional evidences, ACC took the case to Trongsa court.
OAG dropped 17 cases referred by ACC from prosecution over the past five years. OAG officials said that ACC had taken selective cases to prosecute.