Can the OAG represent the Home Minister and the Speaker?

Legal experts and precedence says no but the OAG says yes

The legal challenge to the Anti Corruption Commissions’ (ACC) suspension order has raised the legal question about if the Office of the Attorney General, a government organization, is defending the two private cases of the Home Minister and the Speaker.

The Anti Corruption Commission has explicitly stated in the past that the Gyelpozhing cases are against individuals and not against institutions or the government. This would mean that the suspension orders for the Speaker and Home Minister are also against the individuals involved and not the government and in fact it is a government agency, ACC suspending two individuals.

Two legal experts that the paper talked to said that the criminal charges against the Speaker and the Home Minister and their suspension orders have nothing to do with the government but are private cases.

They also feel that the OAG has overstepped its legal and constitutional mandate in being the legal advisor and chief legal officer of the government and not individuals in the government.

“The OAG is not a private legal arm but the government’s legal arm and hence cannot defend individual’s suits in the court. The individual suits must be defended individually by hiring private lawyers against the government which in this case is represented by the government agency ACC,” said one legal expert.

Another legal expert said, “The OAG should actually be representing the ACC which is a government agency doing official government business and not two private individuals who have their own private cases to defend. The OAG can defend the government on the tax case as it was a case against the government but not in this case.”

A sitting judge and senior member of the judiciary on the condition of anonymity said that the OAG representing the Speaker and the Home Minister is a potential legal issue and the legal clauses needed to be looked at to see if this can be allowed or not.

The Attorney General Phuntsho Wangdi said, “This issue is a question of law on whether the suspension is legally allowed or not. The suspension letter was not forwarded to us by the ACC but by the Cabinet asking the legality and so we have to respond as the legal advisor to the government.”

The Attorney General also said that under Article 29 section 4 of the constitution ‘the Attorney General shall have the right to appear before all courts in the performance of his or her duty.’

However, according to the first legal expert the same Article 29 also makes it very clear that the OAG is to only represent the government and no one else elaborated under sections 1 and 3. Section 1 says that ‘OAG is to carry out the responsibilities within the domain and authority of the Government’ and Section 3 says, ‘The Attorney General as the chief legal officer shall be the legal advisor to and legal representative of the Government.’

In the Judiciary an important component is the legal precedent set by past verdicts especially of the Higher Courts.

The second legal expert pointed out a similar legal precedent in a 2008 case with verdict number 19923. In this case a Bhutanese lottery agent, Sangay Dorji was taken to court in 2007 by the cabinet on charges of defamation, sedition and false information made against two of its ministers Lyonpo Yeshey Zimba and Lyonpo Wangdi Norbu and a government secretary Sangay Zam. The cabinet through a similar letter had asked the OAG to prosecute the case against Sangay Dorji as a government case.

However, in the verdict of Bench 2 of the case on 11th July 2008 the case was dismissed and instead the OAG was pulled up for even taking the case against Sangay Dorji.

The verdict on this issue said, “Under section five of chapter two and under chapter three of the OAG Act the Attorney General has a special responsibility to be a guardian of rule of law which includes guardian of public interest…. The responsibility for individual criminal prosecution must be undertaken on strictly objective and legal criteria, free from any political consideration and independent of the traditional cabinet decisions. Any deviation would lead to dysfunction of the democratic process and will become more pronounced in the near future. No prosecution of this nature maybe initiated in the court at the cost of public purse.”

The verdict in short said that even if it’s a cabinet decision the OAG cannot take up individual cases at the cost of the public purse.

The Thimphu district court verdict was also upheld by the High Court in 2009.

The Attorney General said, “The ACC issued the suspension letter on the November 15th and on the 16th which was a Friday the cabinet issued a letter and attached the copy of the suspension letter. The cabinet letter asked the OAG to look at the legality of the action and take necessary action at the earliest. On Monday we immediately went to the High Court to first issue a stay order and then to give a judgment on the suspension.”

With the ACC being called to the High Court today on the basis of the OAG’s petition this according to the legal experts would be perhaps the first case in Bhutanese legal history of one government arm facing off another government arm.

 

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17 comments

  1. Last time when OAG gives legal opinion, this paper accused OAG of being representative of these powerful people just because they are govt legal arm.
    Now this paper is saying OAG can’t represent these two people. Your legal expertise must be sick..

  2. Defox-   last time the investigation report was forwarded by ACC to OAG just like have done for the past 75 cases around the country investigated by ACC apart from gyelposhing case. That was the procedure.  
    if you have any common sense in you, try to analyze the case rather than gleefully bashing the legal experts.

  3. This is a real test to democracy. Whole people of Bhutan are watching the case development and justice must prevail as a bottom line. I also feel that it is the case against the individuals and why OAG is poking its nose.

  4. The mandate of the Attorney General is clearly mentioned under the constitution and the Office of the Attorney General Act. Going by those two laws, OAG can represent cabinet. The end result of the suspension is that the Government is affected by such suspension thereby making government aggrieved.
    Hence OAG had not represented the two minister but the aggrieved government. OAG would be going against the laws if it had represented in mongar court.

    One should understand that OAG here did not petitioned before the high court upon request made by the two minister but solely upon the instruction of the cabinet which is a government body without question.
    therefore, its legal on the part of attorney general to do so. By the way who is legal expert? it would be appropriate if you could call by “lawyer”. I dont think no legal expert in Bhutan.

  5. Shut down OAG

  6. I think mad dog has bitten people at AOG…..
    It reflects poorly on the institution of democracy…. Powerful people can predict the rules or lines of constitution in their favor whenever they want and use it against somebody when they feel that person is a risk to them.
    Only god can save this nation now.
    It’s becoming a mess…
    What i’m wondering is how come these old, degenerated, corrupted men are still able to come in public and talk of service to nation when they have been explicitly name in the most sensational scams of this nation in modern history.
    AOG… shame on you…..of course a dog has to wag it’s tail to the owners… I can see your helplessness…

  7. Defox dent even understand the issue……… may be he don’t understand English every thing thing is very clear  

  8. AOG???? whats that….

  9. ACC dont have right to prosecute Gyelposhing case unless they proof beyond the shadow of reasonable doubt that; a) delay without valid reaons; b) manipulation of their report by OAG and c) there was interference in OAG’s decision.

    Unless ACC proofs above 3, they dont have legal standing at the first place.

    Secondly; section Na-1-2 of Thrimzhung chenmo says that a person should make document and fake seal and impersonate in others name. Speaker to be convicted under section Na 1-2, ACC have to proof firstly that he made fake documents, secondly they need to proof that he made fake seals and thirdly need to proof that he impersonate in some others name.

    My understanding of the Na 1-2 is that…for speaker to be convicted, he should commit all three ofference that is (1) make fake document (2) make fake seals and (3) impersonate in some other name as the word used in Na 1-2 is AND. Usage of word end in a legislative sentence mean that all conditions should be fulfilled.

    Now check out if they have done all three act at the same time. AND cannot be read as OR….

    secondly..can they be charged for official misconduct…

    Penal code requires KNOWLEDGE to be convicted under the particular section. He knowledge, intention and benefit, he should commit unauthorize official function or should refrain from performing a which is imposed by LAW.

    now did he committed the above act knowingly and derived benefit to establish his mens rea? and under what law he failed to perform his duty.. Can he be convicted.

    Analyse it….

  10. This paper must understand that OAG is not representing the Home Minister or the Speaker but the government of the day. The OAG was requested by the Cabinet to look into the legality of the case. Like Tong tong said ‘it would be not right if OAG represented the Home Minister and Speaker in the Mongar Courts. The legal experts that this paper always quote must seriously try to interpret and understand the laws before jumping to blame the government and its institution. And this is not the first time. 

    Now this paper think the case is an individual one while it always blamed and targeted the PM as being one of the power horses behind all these scandals. This paper must seriously reflect on its past articles. I know this paper is tempted to point fingers at the Judiciary but at the moment it is being careful. 

  11. DPT.. i would like to request ur party to be honest and not to interfere in this case..if u do then dnt think that ur party is going to win next election..
    i challange u that u wont win nxt election if u dont do justice…n AOG u r just beating around the bush

  12. last time this paper accused the DPT government for this case.Now it says, the case is against individuals. 

    • Right, this paper went on publishing series of articles accusing the current government especially the PM, blaming him as the architect of Gylapozhing Land Scandal. Suddenly this paper says the case is against the individuals. Total bullshit.

  13. Sangay Kuenden Drukpa

    OAG wants a copy of ACC’s suspension order??????? When ACC forwarded the case to your office why did you return the case back saying that there is no legal basis? Where have you been working before you join AOG? Where have you got your LLB from? Hope you didn’t do that from N. Koera. I feel very sorry that the government has spent lot on you for sending you to do LLB/LLM because you are proving the cost spent on you is a total waste to this nation.

  14. Wow… nga chey di gu thom thom zodo marey di tshu ghi…. Now many experts are coming out from their cocoons. Who are these experts after all? In the land of GNH everyone seems to be an expert!!!

  15. I think OAG is Also corrupted!!!!! something is wrong.

  16.  Oag is supposed to defend the government not charge them. let us give this great chance to oag to defend them be it as an individual or as the government. 

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