ACC does not agree with the OAG’s findings and is not pleased with the OAG’s handling of the investigation report
The Anti Corruption Commission (ACC) on November 13th, 2012 registered the Gyelpozhing land case for prosecution with the Mongar Dzongkhag court.
This comes after two months since September 19th, 2012 when the Office of the Attorney General (OAG) had informed the ACC saying that there is no legal case in the Gyelpozhing land case.
The Mongar District court Judge Gyembo Dorji who would also be adjudicating the case said, “around a 100 page report has been handed to the court which contains around 75 charges, which include charges against the plot allotment committee members and chairmen and also legal grounds for restitution of plots.”
The charges framed by ACC are broadly the same that have been presented to the OAG by the ACC on August 31st, 2012.
The charges framed in the Mongar District Court include NA 1-2 of the Thrimzhung Chhenmo which are offences of forgery and deceptive practices and Section 294 of the Penal Code of Bhutan which is for official misconduct.
The only change is that earlier charges relating to the fine for illegal registration of plots in violation of the Land Act 1979 is not being pursued as it is understood that the clauses are primarily meant for land transaction between two people.
The charges against the Gyelpozhing plot allotment committees and the speaker are criminal in nature while the rest are primarily civil in nature.
ACC stands by its investigation report
The ACC in an earlier release on its website had said, “The Commission will prosecute the Gyelpozhing land case. The Office of the Attorney General returned the case to the Commission on September 19, 2012. The Commission reviewed the laws, examined their relevant provisions and applicability to the case and consolidated charges for prosecution.”
Talking to The Bhutanese the ACC Chairperson Dasho Neten Zangmo said, “We respect the OAG’s professional opinion but we are going by our own investigation findings which are very clear and we are duty bound to take the case to its logical conclusion.”
She also said that ACC’s findings showed that ineligible people were allotted land and that there was criminal intent.
Talking about the importance of the case the ACC Chairperson said, “This case is not just Gyelpozhing land case per se, but it has serious implications for future issues relating to land.” “Through this case an important precedent has to be set so that this does not recur,” she added.
One of the main arguments of the OAG in dismissing ACC’s charges was that the land allotment committees had prescribed additional criteria within its powers and jurisdiction.
However, Dasho Neten said, “The Dzongkhag plot allotment committees may have been legitimate bodies but they were supposed to conduct themselves transparently, as per the norms and within the uniform criteria set for plot allocation. The committees should have followed the criteria in form and spirit.”
Dasho also clarified that ACC still holds the position that land across the river (where senior ministers among others received land) was government land not meant to be allotted and not part of the town area.
The ACC is of the overall position that various illegalities happened in Gyelpozhing.
ACC not happy with OAG’s handling of report
The ACC despite its diplomatic reply on the OAG’s analysis is not pleased with the OAG’s handling of the ACC report.
Dasho Neten said, “The OAG should not have given out investigation details because it undermines and pre-empts subsequent action. Releasing the investigation details was inappropriate.”
“What they should have done is like in the past, if they feel there is no case they should have returned our report without publicizing it. This (Gyelpozhing) is a break from the norm,” said Dasho.
In what was another break from the norm the OAG in its nine page legal opinion had dedicated three pages to rebutting charges from the Opposition Leader and the media.
Apart from saying that the ACC investigation had been carried out ‘as requested by the Opposition Leader, certain sections of the media and the Royal Government’, it also said that OAG ‘felt the need to assess whether the objectives of the investigation had been met and the main questions answered.’
It was this section of the report that irked the ACC for attempting to link it to the Opposition among others and also questioning if the objectives of the investigation had been met.
In an unprecedented move the ACC Chairperson Dasho Neten Zangmo wrote to the OAG on the issue.
Dasho said, “We have written to them as they are questioning the very objectives of the investigation which means they have questioned our integrity. They are questioning ACC’s intentions and it has undermined our integrity.”
Also for sometime the government had been claiming that it had initiated investigations into Gyelpozhing. This was when ACC had already announced that it would review the Gyelpozhing case well before the government asked for any investigation.
Dasho Neten denied any instructions from any quarters had led ACC to investigative the case. She said, “ACC takes independent decisions based on the merit of the case.”
On questions on why the ACC charges did not include charges of conflict of interest, abuse of power and abuse of privileged information the ACC Chairperson clarified that the laws existing at the time did not address these issues and hence they could not be charged under the retroactive clause. The ACC Act and the Penal Code came in only recent years. She, however, said that it would be up to the courts to make the final legal interpretation and application.