ACC and OAG battle it out in the High Court

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.

 

 

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23 comments

  1. Whats the battle between OAG and ACC, I mean a wrong doing must be accused, you cant find roots as to where it says what and when. OAG is definitely siding minjurla and tsitimla. Please bear in mind that people are watching and knowing every action. Under any law, a crime is crime, unless artistole was alive to debate over it, and we the people dont want to see a criminal against our land walking the streets as if he had nothing to do with it. Its a shame, OAG is trying to digg answers to hold suspensions. I hope the supreme court doesnt side with OAG as well because minjurla is son in law of someone, please bear in mind once again!! people know about it and be careful- thts our only advice!!

  2. We should ask the AG to resign on moral gorund as he has brought the institution to a level no one will respect. He is a lousy chap

  3. I am so shamed to see n hear how OAG is functioning under the the present AG. This guy is too bad to be AG of our country. He to me is a bais in his stand

  4. Till date Acc has handed many such cases to OAG and OAg has fought the case and many has been put behin bars and terminated from their Jobs. But when it comes to Home Minister & Speakers issue OAG has lot of thing quote to save them. AG Phuntsho Wangdi please bear in Mind there are hundered and thousand of such issue in line which will come up later and are you in position to fight against ACC on their behalve too if not do what you have to do and do not follw wrong instructions. When is comes to Gyalposhing case ACC is not defaming the government but ACC is trying to root out the corrupted individuals who has done lots to damage to this country and its people. AG are you paid by Minjur and Jigme or paid by Government. OAG think twice before you act and being the Governments Legal Orginisation please dont twist the law by quoting baseless acts and laws which may hamper the entire Law of this Country.. As per publics comment and ACCS justification given above we dont find any stands in OAG suppoting those two corrupted lousy Leaders.

  5. It is morally wrong, (if not legally ) to support Individual when it was supposed to represent state. The speaker and Home Minister is by no means a government. If OAG wants to point of some legal procedures they ACC might have not followed, they should have done in court but shouldn’t have asked for stray order for suspension of two individuals who are charged for criminal actions that can be interpreted as against state. OAG really needs to gets its duties and responsibilities right.

    On the other hand, how can ACC suspend two members of parliament as if they are some officials. Does it mean that if ACC find a justice involved in some criminal case and suspend him just because ACC acts say public figure or something like that when it is parliament who can impeach justice? Elected members of parliament and elected members of local government has huge difference.

    It is rediculous on part of ACC to suspend people referring ACC Act andf charge them under Penal Code and Thrimchung Chenpo. it is either suspend them under ACC Act and charge them under ACC aCT or Charge them under Penal Code and Thrimzhung Chenpo and leave rest to wisdom of court…

  6. I AM TOTALLY CONFUSED…WHO IS REPRESENTING WHO…
    PLEASE DONT MAKE IT COMPLICATED FOR COMMON PEOPLE TO UNDERSTAND…
    PUNISH THE CULPRIT  IF WRONG AS PER THE LAW…
    RATHER THEN HEARING FROM THE SPEAKER AND HOME MINISTER, WHY IS OAG SPEAKING ON THEIR BEHALF…
    ARE THEY THE ONE TO COMMIT THE WRONG OR THE GOVT?
     I FEEL IF ITS THE GOVT THEN OAG SHOULD INTERFERE, IF ITS INDIVIDUAL THEY WHY?????
    BRINGING UP LOTS OF QUESTION MARKS IN THE MINDS OF THE COMMON PEOPLE…

  7. Its a sad precedence that the OAG is going beyond its boundary. OAG being the legal representative of the government is now becoming more individualistic. If individuals can be represented by the OAG then, the future looks very bleak.
    The question here is WHO IS OAG REPRESENTING? If OAG is representing the government, then should we say that the government is criminally charged? If its representing those two individuals…then can OAG represent individuals? If so, then why should OAG represent them? Why didn’t the OAG represent other Public Servants in the past???
    I think something is very fishy and is demoralizing the Bhutanese values as a young and unique Democratic society…

  8. Why ‘The Bhutanese’ is supporting ACC????????????????  Do you want to see democratic transition of our country being disturbed? ‘The Bhutanese’ newspaper is truly ridiculous. 

    • you are idiot and ridiculous…..do u want country to run by corrupt politicians…………corruption is menace to democracy ……ACC is doin best to prosecute those involved….and BHUTANESE is just updating its fellow citizens……..heads off to Bhutanese for relentless reporting …………………

      • Civil Society, on 13th October, the Bhutanese paper has used the word ‘poignant’ against our king and queen. This newspaper failed to understand that media has certain limits.

        This newspaper is culpable for misinforming the public and in crude terms whether I am ridiculous or not will depend on 2013 election. Am pretty sure DPT and present PM will once again rule our country. Cheers for DPT and an act of crass from DPT and ‘the Bhuatnese’

    • Looks like you are either one of the beneficiaries of the scam or other related scams uncovered by the Bhutanese. The Bhutanese is not disturbing the transition of democracy but rather making it more vibrant. I think it’s you who is sounding ridiculous.

    • Wake up man and think hard! I guess you are dreaming……. don’t blame this paper for doing a good job……

  9. I am confused with ACC & OAG regarding legality in suspension and legality in defending.So complex situation just to punish wrong doers.Now i realized that there is no proper law.

    OAG: What are u going to do, if you win the case, you mean criminal should not be punished? if not than y r u defending individual?

    ACC: If you win the case it is ok! but if you loose the case u just resign? will it be enough?

    We are watching very closely, both of u are quite old and please don’t set dangerous precedent for us please.

    Best of luck both of you!

  10. And also am hearing investigation by ACC is undergoing at Mongar, Bumthang, Haa etc.
    Before convicting legalities has to be finalized between two bodies, ultimately criminal should go unpunished
    Thanks

  11. Hello “The Bhutanese”

    We also want updates regarding, Phobjikha, Trowa, Chang Ugyen, Lottery, Denchi etc.
    You seems very silent on this cases nowadays.

  12. Hi country man How about having this hearing public, so that every one of us can be a judge. It will be transperent and fair to all. One thing in Bhutan is that there is never a public hearing. This should be a nice and interesting case to have live telicast and have public hearing

  13. If AOG fail to carry its duty responsively then i think AG should be made to resign on moral ground.

  14. why is OAG is defending two individuals who are involved in land scam those two accused were involved when they were dzongdas ….not within the preview of govt………… OAG is supposed to represent govt. internationally and and govt. claims but here OAG is representing those two individuals…..OAG please define your roles and responsibility……next time when i am caught up in corruption you ahve to defend my stand….because i am also individual like them……if that what defines your ..responsibility……

    • hi gay, OAG is not defending two ministers, but the OAG inform us to ACC processing wrong thing to our peoples. 
      the ACC and OAG are looking for small people and deal the cases are. I have seem many many cases are but only small peoples are investigation and frizzed the earn property and all 

  15. I support”thebhutanese news paper” in general and Mr.Tenzin Lamsang in particular.I suggest Mr.Lamsang not only concentrate within Thimphu.. your valuable service is needed in the other part of Bhutan..wherein corruption/nepotism/favoritism are/is in practice..involving Ministers/high officials/influential person/Rich businessman and Govt. servants …but common people are remain silent due to fear of direct or indirect harassment by the concerned officials and their

  16. Guys, OAG is not defending two private individuals. OAG is not defending the Home Minister and the Speaker in Mongar Courts. Neither of them approached OAG to represent them. OAG was instructed by the cabinet to find out the legality involved in the case and they are not defending the accused here. I will change my stance if OAG represented them in Mongar Courts where ACC had file the case. HC and SC have the legal authority to issue orders or discretion against or for any case. In this case, given the circumstance and importance of positions the accused hold it is perfectly alright to cancel the suspension orders issued on them. I am sure ACC would have accepted the request even if the government wrote it. So there is no need for us to panic. There is no need for us to preempt results. Democracy is taking its perfect shape. Hola Bhutan. 

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