The High Court yesterday upheld its decision to sustain its interim stay order issued against the Anti-Corruption Commission’s (ACC) suspension order for the Home Minister and the Speaker.
ACC’s suspension order for the minister and speaker for the alleged offence committed prior to the current posts has been found to be not within the purview and scope of the ACC Act 2011 and the National Assembly Speaker’s Act, 2004.
The judgment says the ACC Act, which came into effect on July 5, 2011 does not retroactively allow the Commission to suspend public servants who are charged of an offense prior to the commencement of the Act.
The Court said that only those who were being charged under the ACC Act could be suspended using the Act. The Speaker and the Home Minister are being charged under the Thrimzhung Chhenmo and the 2004 Bhutan Penal Code and not the ACC Act which came in only in 2006 and was amended in 2011.
“The general principle of retroactive or retrospective application of laws, and the canons of legislative construction presume that legislation is not intended to apply retroactively unless a particular provision or the language expressly makes it retroactive,” said the High Court.
The High Court said this judgment would also apply to all 72 civil servants who had been suspended by the ACC till date.
The High Court also 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. ‖
The High Court ruling also states the Office of the Attorney General (OAG) has the ‘locus standi’ or has the right to represent the government in this particular case to test the legality of suspension. The court said that this was possible under Article 29 section 3 of the Constitution where OAG is legal representative of the Government and also as per the OAG Act, 2006.
“The OAG being mandated to represent the government which invariably is established to protect the interest of the state and having submitted before this court, OAG does not have the right to defend the individuals for the alleged offence,” clarified the court. The High Court upheld the submissions of the parties that any personal criminal charges may be defended in person at their own costs or through a legal counsel of one‘s choosing as per section 33 of the CCPC or through a Ngotsab (representatives). This means that the OAG cannot defend those accused in the ACC’s Mongar Court case.
The High Court also made it clear that the Commission is empowered to suspend public servant under section 167(2) for the offence committed under the Act but the Commission is also obligated to inform the head of the agency of such order as per section 168 of the Act.
The High Court said that generally, the mandatory pre-requisite to notify or inform the head of agency under section 168 by the Commission (in the understanding of its legislative intent) is 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.
The High Court noted that section 93 of the Civil Service Act, 2010 provides that: A civil servant shall not be suspended or prosecuted in the court of law by any party for any act alleged to have been committed by him or her without notifying the Commission.
“What we thought was right, what we thought it should be was uphold by the court. All these should be done according to the laws, this is called ‘due process of law’, this is called ‘rule of law’,” attorney general Phuntsho Wangdi said.
The court order, however, stated that the application of sections 312 and 313 of the National Assembly Act, 2008 are the procedural requirement to disqualify a member and the duty of the speaker to relieve such member after having voted with two-thirds majority for not complying with other provisions of the said Act and not when a member of parliament is charged for corrupt acts or criminal offences.
The court applauded the ACC’s drive and it’s determined ‘effort to prevent, detect and root out corruption,’ at all levels with keen acknowledgement and the necessity of upholding ‘the fundamental principles of due process of law in a criminal proceeding and in a civil or administrative proceeding’.
The High Court verdict further states that constitutional bodies such as the ACC and OAG are to provide constitutional and statutory roles of ensuring effective check and balances and should work in harmonious interpretation, rather than impeding upon each other’s power.
The Home Minister Lyonpo Minjur Dorji said, “All these issues had to be sorted out and each individual and institutions has their own laid-down mandates that have to be done. None of us is almighty and we are all accountable be it media or parliamentarians. We all have our own responsibility, the democratic responsibilities. This is how it had to be sorted out. All laws that have been enacted have to be respected and foremost; the almighty law is the constitution, which has been followed.”
The ACC on November 15, invoking section 167 (2) issued a suspension order against the two members of parliament for the alleged commission of criminal offences in the Gyelpozhing land allotment case and having charged in the Mongar District Court on November 13, 2012.
Minjur Dorji & Puran Gurung / Thimphu