In 2015 the same ACC had taken a different stance to another similar letter
On 18th September 2020 the National Council had sent a letter to the Anti Corruption Commission (ACC) to validate if there were any contraventions of sections 54, 58 and 63 of the ACC Act (ACAB) over the appointment of Tenzin Lekphell, an active DNT party member, as the Secretary General to BIMSTEC.
Section 54 is ‘Active trading in influence’ where a person directly on indirectly gives an advantage to another person to use his or her influence to obtain work, employment, contract or other benefits from a public agency.
Section 58 is ‘Abuse of Functions,’ where a public servant knowingly abuses functions or position by performing an act amounting to favoritism, nepotism or patronage etc in violation of laws in discharge of his or her functions.
Section 63 is ‘Failure to declare conflict of interest,’ where a public servant or his or her relative or associate has a private or personal interest in a decision to be taken by a public agency.
However, three days later on 21st September 2020, the only ACC Commissioner in office and also the acting Chairperson Ngawang Pem wrote back saying that ACC does not have the ‘legally required mandate to provide legal opinion on the possible contravention of the said provisions under the ACAB.’
The letter from the ACC said that ACC can only form its opinion after completing the due process of the investigation on the matter which would take its course of time. It said the opinion thus formed is further subject to scrutiny by the OAG.
It concludes saying, ‘Therefore, we regret to inform your excellency that the ACC is legally constrained in providing any legal opinion.’
The ACC letter in effect had closed the whole chapter on the BIMSTEC SG issue from the ACC’s side.
Though the ACC says that it can only form its opinion after an investigation it did not investigate the matter despite an official letter from the NC flagging the matter officially to ACC, and pointing out even specific ACAB provisions that may have been violated.
Single Commissioner decision
What has caused some disquiet in ACC is that the decision was taken when there was only one Commissioner in office given that the former Chairperson and a Commissioner had finished their term and the full third Commission was yet to be constituted.
Though there was no illegality as such in the lone Commissioner taking the call, a source in the ACC said that it would have been better if this issue had been deliberated with a full Commission. ACC at the time was in a transition stage without a Chairperson and a full Commission. This is especially in the context of it being an official letter from the National Council.
The current Third Commission was instituted on 14th October 2020 with a new Chairperson Deki Pema and two Commissioners A. Karma Rinzin and Jamtsho.
Different stance by same ACC in 2015
ACC’s letter and stance on 21st September 2020 to the NC also contradicts with its own stance a few years ago in 2015.
The former Prime Minister Dasho Tshering Tobgay on 23rd June 2014 had written to the ACC to look into or investigate if there was any conflict of interest in the government’s initiative to import electric vehicles.
The ACC based on the verbal communication and written letter of the PM investigated to see if any sections of the ACAB or other provisions had been breached. It investigated the matter over a period of four months.
The ACC in its 2015 Annual report came out with its findings. It said that the review could not establish direct conflict between the private interests of the Prime Minister and the Government’s actions on import of EVs in the country.
However, the ACC at the time had said that receiving of EV gifts by the government from Nissan and Tesla companies had violated the provisions of the gift rules of 2009. It said it has the potential to impact fair and transparent tendering process and even if the decision is not affected there is a differing public perception that cannot be dismissed.
The ACC in its report said that the government signing MoUs with Nissan and Mahindra undermined provisions of the Constitution that provided for fair market competition and has given undue benefits to private interests of the two dealers.
Based on these ACC observations the former government shelved its whole policy of allowing the import of second-hand electric vehicles.
It is important to note that these observations were effectively the legal opinion or view of the ACC in reply to a written request by the former Prime Minister.
ACC’s views also did not have to go through the OAG.
The NC letter was addressed to the Prime Minister and said that the NC has reviewed the government’s decision on the nomination of Bhutan’s candidate as the next SG of BIMSTEC.
It said that the ECB has confirmed that Tenzin Lekphell is an active and registered member of the DNT. The NC said that it is of the view that given this association the nomination of the candidature could possibly contravene sections 54,58 and 63 of the ACAB 2011.
The NC had said that section 7 of the NC Act mandates the NC to to ensure that the government safeguards the interests of the nation and fulfills the aspirations of the people through public review of policies and issues, bills and other legislations, and scrutiny of state functions.
It had said that ensuring transparent and accountable governance is the key to the pursuit of GNH and for fulfilling peoples aspirations.
The NC said that in view of the above it expresses its concern over the nomination and calls upon the government to urgently review the matter and rule out contravention of the above-mentioned sections or any other sections of the ACAB 2011 before commencement of the next BIMSTEC Ministerial meeting.
The letter was copied to three people. It was copied first to the Officiating Chairperson of the ACC to validate contravention of the above sections and any other sections of the ACAB 2011.
It was then copied to the Foreign Minister and Secretary for information.
On 25th of September 2020 the Prime Minister Dasho (Dr) Lotay Tshering in a press conference had said the appointment of Tenzin Lekphell was lawful. The PM also said that if ACC finds anything wrong or if he has violated any of the laws then he would take personal responsibility and ask for forgiveness from the citizens.
The ACC by 21st September 2020 had already replied to the NC saying it cannot look into the issue.