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However, the outdated OAG Act 2006 far from making the OAG autonomous makes the entire OAG a handmaiden of any political government in power.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 In many ways the outdated Act insures that the OAG has less protection and autonomy then even an ordinary civil servant.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