ACC to state its position in court today
The Anti Corruption Commission (ACC) defended its suspension order for the Home Minister Lyonpo Minjur Dorji and Tshogpon Jigme Tshultim saying that since it is an administrative procedure and not a disciplinary action there was no requirement to inform the head of the agencies.
ACC has been asked to come to the High Court today to present its position.
ACC also said that earlier it was only under the 2006 ACC Act that heads of agencies were informed and asked to suspend officials.
“Under the 2011 ACC Act we have started directly suspending people as an administrative procedure. It is administrative as once the person is reinstated after being found innocent all benefits are also given back,” said an ACC official.
Earlier on November 15th the ACC had issued a suspension order for the Speaker and the Home Minister. The OAG approached the High Court on November 19th against the suspension order and got a temporary stay order until a final judgment was announced.
The OAG had quoted section 168 of the ACC Act 2011 which says, ‘The Commission shall, where a public servant has been charged for or convicted of an offence under this Act, inform such fact to a head of individual agency for the purpose of taking necessary disciplinary action against such public servant as required by laws’.
This section was OAG’s main defense in saying that in the case of the Speaker and Home Minister the head of the agencies were not informed for suspension.
However, an ACC official said, “Section 168 pertains to disciplinary action which is not applicable here as the Home Minister and Speaker were suspended as per administrative procedure under section 167 (2).” According to this section ‘A public servant who is charged with an offence under this Act shall be suspended with effect from the date of the charge till pending the outcome of any appeals.’
The OAG is also fundamentally questioning if ACC has the right to suspend the two at all.
Attorney General Phuntsho Wangdi said, “We also cited section 167 (2) as it does not say who is to suspend the Home Minister and the Speaker. At the same time section 168 clearly says that the head of the agency is to be informed.”
However, an ACC official said that it was implicitly understood in the ACC Act 2011 that it would be the ACC that would suspend the two as part of administrative procedure when a case was charged in court.
One of the other main defenses of the OAG was that it was inappropriate to subject members of Parliament like the Speaker and the Home Minister to the same standard of administrative measures applicable to other public servants. The OAG’s petition said that under the National Assembly Act 2008 only the Speaker could suspend an MP and that too for a maximum of 20 days.
However, according to the ACC Act the definition of a public servant who is to be suspended also includes ‘elected official who receives salary, allowances and benefits from public funds.’
The speakers power to suspend an MP under the National Assembly Act 2008 only relates to ‘Rules of Debate and Maintenance of Order in the House,’ section of the Act more as a disciplinary issue to maintain order and decorum and does not cover the issue of corruption and criminal activities.
An ACC official said that in addition to the Speaker and the Home Minister a civil servant who was the former member secretary of the Gyelpozhing plot allotment committee Dechen Singye was also suspended.
It is understood that under the ACC Act 2006 when ACC wrote to agencies to suspend people as part of the administrative procedure the agencies would either delay or not cooperate with ACC’s suspension orders especially when it came to senior staff.
In 2006 when the Phobjika case was brought to court ACC wrote to the government to suspend the the former Wangdi Dzongda and then Labor Secretary Dasho Pema L. Dorji but this request was ignored and he was not suspended though the ACC Act called for his suspension.
Therefore, when the more comprehensive 2011 Act was brought in place ACC took on the powers of suspending people directly.
In corruption cases the ACC usually detains people behind bars and suspends them during investigation so that they cannot use their official position to interfere in the investigation. Another suspension automatically comes into effect when the case is registered. This happened both in the Samtse Mines case and the Ministry of Health case.
In the Samtse Mines case in 2009 one of the main charged NRDCL MD and former mines head Sangay Gyaltsen was not only suspended from his job but he was also detained behind bars along with Nagay and Samdrup.
In the Ministry of Health procurement case senior MoH officials like Deputy Secretary Nado, DVED Director Ngawang Tenzin, senior officers Rinchen and Pema Dorji during the course of the investigation were not only suspended but also detained.
In the Gyelpozhing case none of the criminally charged were detained or suspended during the investigation as they were not looked at as likely to hamper the investigation or misplace evidences.
In terms of suspension so far this is the first case in court of its kind.
ACC only made one exception for suspension for an orthopedic specialist in the MoH case due to the public interest involved as his suspension would cause widespread problems. However, ACC did not entertain the case of a dentist and kept him on suspension as his services were not considered essential.
As per the RCSC rules civil servants on suspension have to go on half pay but for ministers and MPs there are no such clauses.