The Bhutanese Leading the way.
In September 2012, around 20 days after the Anti Corruption Commission (ACC) submitted its Gyelpozhing Land Scam investigation report to the Office of the Attorney General (OAG) saying 67 of the 99 plots are illegal, the OAG under then AG Phuntsho Wangdi issued a bland press release on its website saying there was no ‘legal basis’ to pursue the case.
It said this decision was based on 14 days of review of the case by five OAG lawyers who had no association with the case.
The ACC subsequently prosecuted the case on its own and won the case in the Mongar Dzongkhag court with the decision being upheld in the High Court and finally in the Supreme Court in July 2013.
There was no action against the AG who completed his five-year tenure till 2015.
In December 2016 the OAG under AG Shera Lhendup announced that the OAG is dropping the Trongsa Land Scam case, 18 months after the ACC had handed over the case to the OAG.
Here too, the ACC had to prosecute the case on its own and secured conviction and restitution of the lands in all three courts till the Supreme Court in 29 April 2022.
There was another clash between the ACC and OAG under the same AG in August 2019 when the AG declined to appeal a high court larger bench ruling that sharply reduced the fines and sentencing in the Jatan Prasad Lal Prasad (JPLP) tax evasion case.
The ACC felt it had a strong case to appel to the Supreme Court. Even the the two internal committees of OAG which are the sub-screening corpus and general corpus recommended to appeal the case but the AG overruled them.
There was already controversy in the case as the AG personally went to Phuentsholing and reduced JPLP’s bail amount of Nu 184 mn to Nu 80 mn without consulting the ACC.
An ACC Commissioner in a press conference at the time said that it is a matter of fact that the legal company of the defendant JPLP is Bhutan Law Service which was formerly owned by the AG.
The SC decided to accept ACC’s appeal as per section 128 (3) of the ACC Act which says ‘The Commission may carry out its own prosecution of a person charged with an offence under this Act or take over the prosecution process from the Office of Attorney General when the case is: (a) Delayed without a valid reason; (b) Manipulated; or (c) Hampered by interference.”
In May 2021 the SC sentenced JPLP to five years in prison and asked JLPL to restitute Nu 154.61 mn in taxes and fines.
Shera Lhendup completed his five-year term in mid-2020.
With the recent Trongsa case judgment there are increasing voices on how the OAG will be held accountable over the case it had dropped in 2016 saying there was no case.
With this being the third such instance there are also questions about what must be done to stop it from happening again.
ACC’s view
An ACC official said that the Trongsa case is the third such case where a major corruption case dropped or not appealed by the OAG has been successfully prosecuted by the ACC.
The official said that there must be an accountability mechanism put in place to prevent this from happening again.
He said that the position of the AG is nominated by the Prime Minister, reports to the PM and is therefore accountable to the PM.
The ACC said that with the current OAG the ACC has formed a joint committee to resolve any issues from sharing information to communicating on prosecution of cases.
The legal views
A judicial expert said that from the above instances it is even more reason to keep in place ACC’s prosecution powers that are being debated in Parliament as part of the ACC Amendment Boll 2021.
He said that in the Gyelpozhing case as soon as the verdict came out the then AG should have taken moral responsibility and resigned.
He said when that does not happen then the Prime Minister as the appointing and firing authority to whom the AG is accountable should take action.
He said it is worse to prosecute a person wrongly, but to not prosecute a person for the wrong reasons is also equally wrong.
The Judicial expert said that the OAG should have a proper system in assessing cases for prosecution or not and the OAG should assign a lawyer in big cases to the ACC so that the OAG is clear on the case details.
The expert said that the OAG is not a Constitutional body but a legal arm of the government accountable to the PM directly. He said that ideally the term of the AG should not have been fixed in the OAG Act but he or she should serve at the pleasure of the Prime Minister.
The Judicial expert said that the PM has the right and powers to even institute an enquiry against the OAG when such things happen and if the PM does not act then the Parliament has the power to do so through its committees.
A lawyer the paper talked to said that it is not healthy when ACC is doing both the investigation and prosecution as it gives too much powers to the ACC and can make it a very intimidating force.
He said that ACC to win the case in court can use its investigation and interrogation powers to even pressure witnesses to back its case in court.
At the same time the lawyer said questions have been raised of the OAG in the past over such issues and it is important for AGs to avoid conflict of interest in cases. He said the PM should appoint an ombudsman for the OAG to keep track on the issue of prosecuting agencies not misusing their powers. He gave the example of the JPLP case which showed the OAG in very poor light.
PM and NA Committee Chair say no change
The Prime Minister Dasho (Dr) Lotay Tshering said that the OAG is not like any other institution as it is mentioned in the Constitution and though he nominates the AG it is appointed by His Majesty. He said in the above three cases none of the AGs are in office.
He said that even then holding any AG accountable is not like a normal civil servant and removal of an AG will be a moment of national crisis. He said that even in the future if OAG drops a case and ACC prosecutes it successfully he will not go after any AG asking them why it happened or who should be held accountable.
The PM said that there is already a natural check and balance where the ACC under certain circumstances can prosecute the case on its own. He said that he personally got up in Parliament during the deliberations on the ACC Bill to retain the prosecution powers of the ACC for that reason.
With the PM not wanting to hold the OAG accountable now or in the future, the only other option is the Parliament. Here the relevant committee is the Good Governance Committee of the National Assembly who is supposed to ‘Review and study the status of the quality of public service delivery by the government ministries and agencies including the public corporations.’
The Chair of the committee MP Tenzin (Khatoed-Laya) who said he was speaking as an individual MP also ruled out any ad-hoc review by the committee on the issue.
He said that three branches of executive, legislature and judiciary have their own responsibilities. He said that both the ACC and OAG are mentioned in the Constitution and have their respective Acts and powers. He said matters will come to the committee only if the Tshogpon assigns the issue or the public raises the issue and the Tshogpon assigns it to the committee.
The OAG’s view
The Bhutanese sent some questions to the OAG which responded in writing. The OAG said the OAG and the ACC has instituted an Inter-Agency Task Force (IATF) to review any controversial cases unlike in the past, and they hope it will iron out the issues through consultation, collaboration and corporation while maintaining its own constitutional mandates and institutional independence.
It said currently any return of cases to RBP or ACC are based on evidentiary and public interest test by the concerned prosecutor subject to reviewed decision of the case screening corpus.
The screening corpus after such independent review and considered decisions is further appraised to the AG for final decision as per the Rules of Procedure for Prosecution, 2018.
OAG said any return of cases is accompanied with written reasoned grounds as to why such cases cannot be pursued before the Court or for an appeal to the higher courts.
“Even before returning the case, the investigating agencies are consulted with issues such as to the need for additional information, requirement for further investigation, merits of the case and evidences. When necessary joint discussions are carried to verify the facts and position on the case,” said the OAG.
It said the OAG and ACC has conducted bi-lateral meetings to strengthen the collaboration through IATF and the OAG and RBP has also initiated joint prosecution training and bi-lateral meetings to formulate “Uniform Investigation Manual” and “Common Charge sheet”.
The OAG said it has recently embarked on reforms toward the standardization of criminal prosecutions.
It said in order to reduce case clogging in the appellate courts, OAG expounds the provisions enshrined in the procedural law on grounds of appeal to the High Court and Supreme Court.
In terms of accountability for the three cases the OAG said that the OAG wins and loses cases on a daily basis
The OAG said that in any reversal of decisions by the higher courts no accountability can be fixed so long as the concerned judge has its own reasoned decisions in accordance with law, and so is the case with OAG dropping cases through a reasoned decision.
The OAG said the constitutional role of the ACC is confounded to investigation while the OAG is for prosecution. The OAG said that it will be only the wisdom of Parliament to uphold Constitution or allow ACC’s prosecution. The OAG said it still believes that the Constitution must be upheld.
