Meanwhile OAG files another case in the High Court challenging ACC’s right to prosecute the Gyelpozhing case
After the High Court verdict upheld the stay order against the suspension of the Speaker and the Home Minister the Anti Corruption Commission (ACC) may soon approach the Supreme Court to appeal against the High Court verdict.
A reliable source said, “The ACC is planning to approach the Supreme Court to appeal against the High Court verdict in the next 10 days as the ACC is not satisfied with the High Court verdict.”
As per judicial procedure the ACC has 10 working days from the day of the High Court verdict on Friday 30th November which may be till Thursday 13th December, 2012.
The Chairperson of ACC, Dasho Neten Zangmo, said, “We respect the decision and wisdom of the honorable high court. However, the problem is not in the failure to review the laws concomitantly; the devil is in the interpretation of laws.”
Dasho said, “This Gyelpozhing case is a true test of the will of the leaders, of the institutions and the people to fight corruption which is central to a vibrant democracy.”
The ACC has little option but to appeal to the Supreme Court as the High Court verdict could have a far reaching impact on the ACC’s functioning in the future.
One key aspect of the verdict was that the ACC should inform the head of the agency before suspending anyone ‘to uphold the principle of natural justice, protect public interests, eliminate substantial risks to the functioning of state machineries and burden occasioning from such suspension, assess the nature or gravity of offences committed and more fundamentally to provide opportunity to make informed decision if there was any contravening provision of laws that may provide personal and Institutional immunities from such suspension order’.
A legal expert said, “The problem here for ACC would be if the head of the agency refuses to cooperate on any of the various grounds cited by the High Court.”
In an earlier interview ACC officials said that they had encountered cases in the past where heads of agencies had refused to suspend high officials or even delayed suspensions.
ACC has so far maintained that the information to the head of the agency was for disciplinary action and not suspension.
Another key aspect is that High Court said that the Home Minister and Speaker cannot be suspended under the ACC Act 2011 as the two were being charged under earlier laws.
The ACC had earlier maintained that it was not issuing substantive charges or penalties under the ACC Act to the two but the suspension was a normal administrative process.
The High Court verdict pointed out that under section 11 (5) of the Speaker Act, 2004 removal from the office of the Speaker would be possible, only if the Speaker is convicted of a crime or treason. Therefore the speaker could not be suspended as his suspension would be equivalent to his removal.
A legal expert said, “The ACC in the Supreme Court will have to prove that the suspension of the Speaker for a brief while does not translate to his removal as these are legally two different actions.”
While ACC is planning its Supreme Court move the Office of the Attorney General (OAG) filed another case in court against the ACC saying that ACC has no legal right to prosecute the Gyelpozhing case which is scheduled for hearing in the Mongar Dzongkhag next week.
In its arguments so far the OAG has quoted the Constitution saying that only OAG is authorized to prosecute people. The OAG using the High Court verdicts argument on the ACC Act being retroactive has said that since the people are not being prosecuted under the ACC Act the ACC cannot prosecute the case. The OAG has also alleged that the ACC has encroached on the authority of the OAG to prosecute the case.
Dasho Neten Zangmo said, “The reason why we took the case was because the prosecutor had said there is no legal case and so then the prosecution was incumbent on us as the investigation agency.”
She said, “the concern should be what happens to the case rather than who prosecutes it.”
Dasho said that the legality of ACC prosecuting the case being raised by concerned parties was expected.
“We are happy that the Gyelpozhing case is throwing up important questions and issues which need to be answered and the right precedence has to be set for a strong and vibrant democracy,” said Dasho Neten.
In an earlier interview the OAG had clarified that it took up the suspension case of the Home Minister and the Speaker against the ACC based on a cabinet letter that asked the OAG to look at the legality of ACC’s actions in the Gyelpozhing case and take necessary legal action.
The latest case by the OAG against the ACC is a continuation of the first case which it won in the High Court.
Earlier the ACC had expressed dissatisfaction with how the OAG had handled the Gyelpozhing case and dismissed all charges against the accused in the ACC Gyelpozhing report.
Dasho Neten in an earlier interview said, “The OAG should not have given out investigation details because it undermines and pre-empts subsequent action. Releasing the investigation details was inappropriate.”
She had also said, “We have written to them (OAG) 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.”