ACC questioned the very legal basis of OAG to appeal against the suspension and said the suspension was legal while the OAG said it was illegal
Traditionally, on the same team with the ACC investigating cases and the OAG prosecuting them, the two government organizations went head to head in the High Court over the validity of the suspension order issued against the Home Minister and the Speaker.
The ACC apart from defending its legal stand to suspend the two questioned the very eligibility of OAG to contest this case while the OAG tried to show that the ACC’s suspension clause did not apply at all.
Can the High Court hear the case?
The High Court in turn on Thursday asked OAG to bring forth clear legal basis to show if the High Court was the proper court to hear the OAG’s suspension appeal.
The, High court justices had noted that the main Gyelpozhing case was registered at the Mongar district court. One of the four justices (Drangpons) said a “writ” has to be established, because the case is with Mongar court.”
The OAG on Friday, cited article 21 (10) of the constitution which empowers the high court or the Supreme Court to issue declarations, orders and directions and is not just restricted to writs. “We are asking for a declaratory order,” an OAG representative said.
Talking to The Bhutanese, the Attorney General (AG) Phuntsho Wangdi said “as the constitution vests this power only to the Supreme Court and high court and not to other courts, if we go to any district court, in this case the Mongar Dzongkhag court, they will send us to the high court or the Supreme Court. There are no other options than to approach the high court or Supreme Court”.
“We have not asked for the writ, we have asked for a declaration. So, we are saying that the high court has the jurisdiction,” he explained.
However, ACC representatives objected that article 21 (10) has no relevance to the case at hand.
The High Court will give its final view on this issue in its verdict.
Who is the OAG representing?
ACC during the hearings on both Thursday and Friday, raised the question on who does the OAG represent?
The ACC representative said, “Firstly, the ACC would like to know whether the OAG is a plaintiff, a defendant or a defense council.”
“As far as ACC is concerned, it has neither filed any charges against OAG nor any government agency or agencies,” added the ACC representative.
He also said, “ACC would like to know who is representing the Government in this case, whether OAG or ACC, and whether OAG can represent individual citizens who are charged for personal misconduct and if so under which law.”
The representative said that this will prevent from wrong precedence to be set for future cases in this young Democratic country.
“The commission’s rebuttal against OAG’s stand may become irrelevant without knowing the answers to these fundamental questions,” he opined on behalf of ACC.
The ACC said that chapter 3, section 12 of the OAG Act of Bhutan 2006, mandates the OAG to represent the Government in civil litigation and criminal prosecution before the Courts of Law and tribunals and perform such other functions as may be referred to by the Government.
“Therefore, the Commission would like to know if OAG is representing the Government and if that is the case, the ACC and OAG should be one as we have always done since inception of ACC in 2006,” said the ACC representative.
He said that if that is not the case, then the ACC would like to submit to the Court to dismiss the petition submitted by OAG and issue a writ of mandate as per section Article 21, section 10 of the Constitution of Bhutan 2008 to the OAG.
Article 21, section 10 says, “The Supreme Court and the High Court may issue such declarations, orders, directions or writs as may be appropriate in the circumstances of each case.”
However, the AG talking to the paper said “under article 29 (3) of the constitution, we are a legal representative and advisor to the government. There was no copy of the suspension order sent for us but the government had sent it to us to see the legality and if necessary take legal initiative.”
“We are currently not talking about the facts of the case. We are concerned about the suspension order. It’s a question of law and not facts. We are looking in the interest of the government and not into the interest of the individuals,” he explained.
The AG said “since OAG cannot intervene directly and notify ACC that their actions are illegal, we have written to the high court stating our view and seeking the view of the high court.”
The validity of the suspension
OAG’s main point was that ACC could not suspend people, unless he or she was charged under the Anti-Corruption Act (ACC Act) of 2011.
The AG said “our main argument is that for ACC’s suspension order to be issued the particular individual have to be charged under the ACC Act and not penal code or other Acts.”
The charges against the two Parliament members were beyond the purview of the ACC Act therefore the commission could not suspend them, the OAG representatives said at the high court.
Talking to The Bhutanese after the hearing yesterday, an ACC official said that ACC was well aware that the prosecution was being done on the basis of the Thrimzhung Chhenmo and the Bhutan Penal Code 2004. “This is why we are not charging them under the ACC Act 2011 which carries far more penalties and would implicate more people,” said an ACC official.
He said that ACC was not applying the ACC Act to charge the accused or take disciplinary action but was only applying suspension as a standing procedure which is allowed.
“This administrative procedure is practiced in many countries and Bhutan too has adopted and also put into practice,” said the ACC official.
The AG also said “even if ACC have charged under the section 167 of its Act, it doesn’t mention that ACC can directly suspend people or who is going to suspend the concerned individual.”
He said section 168 of the AC Act clearly states about how to proceed with regard to suspension orders. “If it is a charge, a letter has to be sent to the head of the concerned agency .There is due process of law which has to be followed. Ultimately, even if the court’s judgment is for conviction, they have to report to the head of the agency who will deal as per the laws of the concerned agency,” he explained.
OAG representatives cited example of the health ministry case where section 168 of the AC Act was followed as ACC informed the head of the particular agency.
In the court the ACC representative said, “Since inception of ACC in 2006, ACC and OAG, have worked together cordially and during these seven years, we (OAG and ACC) have prosecuted 47 criminal cases in which 72 individuals were suspended from their services. Some of these were affected upon intimation by OAG that the cases are registered in courts. The ACC’s authority for such suspensions has never been an issue to OAG and as well as the defendants.”
The ACC representative said that Section 168 of the Anti-Corruption Act refers to Commission’s duty to report on charges and convictions for corruption for disciplinary action and not suspension and suspension orders were not issued based on section 168.
“Section 167 of the Anti-Corruption Act refers specifically to suspension of public servants in general and section 167(2) of the Act specifically refers to suspension of public servants when charged in a court for criminal proceedings,” said the representative.
He said the suspension order was an administrative recourse to facilitate administration of Justice by providing a level playing field and not a disciplinary action or a punishment for the wrong doing that relevant heads of agencies had to be informed.
Taking into consideration submissions made by the both parties, high court justices concluded by assuring a quick verdict that will be made public any day.
While OAG as representative of the government had asked the court for cancellation or a temporary restraining order against the suspension orders, ACC as the representative of the state asked the high court to dismiss the petition submitted by OAG as being devoid of “legal standing”, issue an order to sustain the suspension orders and issue a writ of mandate.