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.