A lesson to be learnt from the OAG situation

The conduct of the Office of the Attorney General (OAG),  has been controversial to say the least, from giving a clean chit to all the accused in the Gyelpozhing land case to now defending two private cases against the Anti Corruption Commission (ACC), a government agency, which in the opinion of many should be the other way around.

In stark contrast is the behavior of the ACC which has not only upheld its mandate but also gone on to bring the powerful to book under its Act.

The ACC enjoys tremendous public prestige and trust and is seen as strengthening democracy while the OAG has been seen as spineless organization willing to bend to any request from its political masters.

The radically different way in which both these government organizations are behaving and evolving are mainly due to the respective laws that govern these institutions.

The ACC Act 2011 not only gives the Commission autonomy but also gives it teeth and keeps it largely clear from any interference.

By contrast the OAG Act 2006 is not in keeping with the spirit of the Constitution approved in 2008. Under the constitution the OAG is supposed to be an autonomous organization and the chief legal advisor and representative of the government.

However, the outdated OAG Act 2006 far from making the OAG autonomous makes the entire OAG a handmaiden of any political government in power. In the Act the OAG is appointed by the PM, is accountable to him and is also removed by him. In many ways the outdated Act insures that the OAG has less protection and autonomy then even an ordinary civil servant.

This situation of the OAG in either it’s conflict of interest in issuing a clean chit or blindly following cabinet instructions to defend the private cases of the Home Minister and Speaker is what happens when organizations are not accorded enough legal autonomy.

Ever since the start of democracy in 2008 sections of the government have floated an argument that the various constitutional and autonomous bodies are too independent and that their activities are even hampering the performance of the government.

However, if these bodies were not made independent or autonomous to build their own institutional character, no matter how eccentric, the result would not have been very different from what the OAG is going through.

The stark contrast between the OAG and the ACC should convince  all stakeholders once and for all that it is far better to have more autonomy and independence for constitutional bodies than less. The lesson also is to give minimum legal powers to any government over autonomous and constitutional bodies or risk undermining the very foundations of these bodies.

Genuine autonomy and independence of democratic institutions is also in the long term interest of the government as it will provide sustainability and credibility to the democratic and political process. Effective and autonomous institutions are like strong medicines which may be bitter to taste but are good for the system. The actions of the OAG may provide temporary relief to its political masters but the resultant public outrage and anger is manifold which would not have been the case if the OAG stuck to its mandate.

The OAG lesson should also apply to another important entity in the state which is the Media. While the constitution guarantees the freedom of the Press and expression the latest draft of the Media Act to be put up in Parliament gives too much power to the government over the media like its previous entity of the Media Act 2006. As shown in recent examples politicians blatantly interfered in the MoIC and BICMA to deny or delay media licenses which ordinarily should be given without any political interference.

Politicians also interfered with the advertising policy to punish and favor media houses. What does not help is that Bhutan already has some of the most restrictive media laws in the world that gives a lot of discretionary say to government agencies over the press which will eventually be misused by politicians.

For e.g. in international best practice the media is regarded as the fourth estate but in Bhutan official view holds the media as ‘an arm of governance’ and also a ‘GNH Media’.

The National Council as the house of review and the National Assembly as the representatives of the people should consult media professionals and avoid controlling and discretionary clauses in the Media Act that can lead to the media being controlled by any government in the present or future like the OAG.

What the government and lawmakers also have to keep in mind is that in any situation the constitution is the supreme law and will triumph over any petty Acts and rules that are not in keeping with its provisions.

In the end, the lesson of the OAG fiasco is that under democracy and the constitution the old concept of a paternalistic government that can be trusted to run everything cannot be allowed. For the sake of a healthy democracy key democratic and autonomous institutions that have the potential to come in conflict with the government (for the greater good) should be kept as far away as possible from unwanted political influence.

 

 

 

 

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13 comments

  1. OAG has a political masters like theBhutanese paper has its hidden political masters and ghost legal experts. I am afraid ACC is giving too  much importance to whatever is written in the media. ACC seems to be under heavy pressure (political or not) to challenging the current government and its cabinet. 

    • Phuntsho seriously i wanted to know in what way you want the ACC to carry their Jobs. Your name is Phuntsho and you could be AG Phuntsho wangdi always defending ACC and this paper on behalve of PM. We pray that please save or country of land scam creatures like PM,Zimba,Minjur and Tsheltrim. They even have the guts to go against Royal Kasho which in another word they are not better than the Ngolops. Hey God Save us from corrupted leaders.

      • Druk Pai Butshu, I only said ACC is giving too much importance to whatever is written on media. And you  should have understood only that statement. Yet you chose to go beyond that statement like the reporters of this paper. You must be a reporter too then. Since you asked me how ACC should function I would like to reflect on their approaches when dealing with corruptions and the people accused. Their approaches are double standard, they storm in, they play with the accused, they talk with so much authority and arrogance, they almost act like Gods when dealing with the accused who hold lower positions such as Gups, Drives, technocratic officials, etc. All these after getting anonymous complaints. But with the big guns they can’t investigate on anonymous complaints. They need evidence to investigate big guns against investigating lower position holder people to establish evidence to consolidating their charges. Now if you asked me, do I have problem with their double standard approaches? Hell NO. I absolutely do not have problem with that because that is only so much they can do. 
        With respect to breach of Royal Kashos and its applicability, you and I do not know. Don’t assume that what this paper analyzed around the Royal Kashos is correct.  Let the court decide on that.  
        I had commented on your nick name as my reply to one of your thread comments but moderator did not post it. Looks like he did not like it. You might have liked it though. 

  2. Very badly reasearched piece. I see more of opinion writing than reporting in this paper kudos to it’s head honco.

  3. Like OAG doing all this stuff with the backing of the politics, ACC is put under the immense pressure from the Media and the public to involve in the case of Gyalpoishing prosecutions.

  4. IT SEEMS LIKE OAG IS FOR THE GOVERNMENT AS ACC IS FOR THE BHUTANESE CITIZENS…

  5. It is no news

  6. Unfortunately after its handling of the Gyaposhing controversy, OAG’s credibility was very badly damaged and most of the Bhutanese public have lost faith in it.  

    Let us hope and pray that the High Court will do the right thing and not let our Kings down as They have placed so much faith and energy in democracy.

    Should the HC use some legal ‘abra-cadaba’ and try and convince the public that OAG has a case and that ACC was wrong, it will be a national shame and let us not be surprised if Dasho Neten tends in her resignation. Should that happen it will be a sad chapter in our democratic history and beginning of the end.

  7. “……Effective and autonomous institutions are like strong medicines which may be bitter to taste but are good for the system” Are strong medicines really bitter? I am hearing this for the first time.

    Like someone has commented, I think there is need to substantiate the points mentioned with the source of information. Otherwise it mostly is just a personal opinion.

    If the news are not supported by authentic support, the readers lose faith in the paper and no wonder there will be a time when the media houses should close down. Unlike in the past where people believed everything that is written on a paper, today there are people who really know the truth and analyze before they believe.

  8. Initially ACC submitted the report, OAG said there is no legal basis, when ACC forwarded case directly there is no legality. To my limited knowledge, since case is suppose to be between ACC and criminals, My questions to OAG are?

    1. From where you came to defend individual?
    2. Is this your legality?
    3. Who is paying for your responsibilities?
    4.what is your legality who are already behind bar and suspended?
    5. What will be your legality for future criminals?
    6.What is your legal responsibilities to hold office?
    7. Why you go for bending legality with influential people?
    8. What legal basis is required to punished criminals?
    9. You look “Joker and Funny in public domain” how do you feel?
    10. Are you honest in delivering your responsibilities?

    • At the end all are unpurified, trying to defend ones own stand and damage each other. The Very pity thing is that no one is trying to bring the truth or understand the truth behind. Media like this paper tried to bully too much on onesided and acted unprofessional not bringining forth the truth. There is nothing to blame ACC or OAG or anyone but the true colour of terrorist who is damaging Bhutan for ones personal matter and interest. Peoples’ re[presentatives are elected by people and they can be put down by people if public interest are not responded in due course. On the other hand, in absence of appropriate acts in place everyone take undue advantage for ones own benefits and never think of negative consequences for the nation and soveriegnity. Till democracy, the bhutanese were fortunate to be graced and guided our beloved kings. Now with democracy, things have changed and security and soveriegnity has put to in 2nd place by its own people.

    • Why ACC and OAG didn’t follow constitutional procedures in earlier cases? For that, both the constitutional heads should be penalised or dealt accordingly. Only then this present cases can be handled in right procedure in accordance with the constitutional acts.

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