Concerns over surprise changes and intransparency as 46 Acts are being amended by OAG

The passing of the Civil Service Reform Act means that changes have to be made in 46 Acts and passed in Parliament.

All the Acts have some provisions amended due to the Civil Service Bill, but it is not reflected in the mother acts which is what must now be taken up and passed in Parliament.

However, the government has already indicated that there could be more changes in these Acts beyond what the Civil Service Reform Act requires.

While some of the new changes are positive in nature, there are growing concerns that the large number of acts being amended by the Office of the Attorney General (OAG) could lead to new and unrelated provisions that may expand the powers of agencies and even individuals in the government as they ask for changes that benefit them, without adequate consultation with the many stakeholders both inside and outside government.

A power grab and mistakes

The basis of this feeling is the fact that the original Civil Service Reform Bill had included a provision giving vast powers to the OAG to compound criminal sentences that had nothing to do with Civil Service reform.

The OAG had recommended this to the cabinet which had endorsed it. This had even passed in the lower house, but the National Council had spotted it and rejected it giving 10 reasons on why this clause was not desirable.

The biggest concern at the moment is despite the large numbers of Bills being changed and the entire legal fabric of the government undergoing changes, the OAG and the related agencies have not shared any information on the clauses being changed or held any consultation meeting with the related stakeholders.

So far, going by the OAG example, and that of others agencies, they have shown a strong proclivity to enhance the powers of their respective agencies.

This would not be an issue in normal times where each bill is screened for months with stakeholder consultations and then parliamentary screening, but with 46 Bills being changed at one go the same level of screening process and checks is not there.

Another growing concern again is mistakes being made and this is again derived from past experience with hastily conceived bills with minimal consultation that led to implementation issues and had to be re-amended later.

Another casualty in this whole affair could also be adequate and smooth coordination among agencies as each agency pushes for what is best for itself in their respective bills, and not necessarily what is good for governance or the public under a cloud of secrecy.

Changes beyond the Civil Service Act amendments

The Prime Minister Dasho (Dr) Lotay Tshering indicated that there will be additional changes in the Bills and Acts beyond the Civil Service Act.

The PM said, “As we go along we may add some special features or additional features or we may amend some more features or clauses in those 46 Acts or other Acts.”

“We have to revisit the laws for two reasons. One is to apply the amended parts of the Civil Service Reform Act on the mother laws that need to be amended. These needed to be coordinated and harmonized, and as we go along we might need some extra provisions or we might again have to amend some more,” the PM added. 

He said there will be extra provisions if required.

PM says check and balance there

When asked about what check and balances will there be on amending the Acts, the Prime minister said the OAG will do what the government instructs it to do and it is not that the amendment of the 46 Acts will by led by the OAG.

The PM said they asked the OAG to coordinate as this is the biggest and easiest legal body that they have.

“For any legal document we come up with, it is the direct responsibility of the OAG to do it. The OAG leading it does not mean they can do whatever they want,” said the PM.

“The possibility of squeezing in things into Acts will not happen as these Acts will have to come as government bills which will will go to the Parliament through the cabinet,” he added.

He said the lower house committee will review and whatever is endorsed will be sent to the upper house which will review and whatever is not agreed on will go to the joint committee.

He also said the Opposition party heads most of the committees in the lower house.

“It is not like I had a bad day and could not read the Bill properly and then it becomes an Act. It does not happen that way,” said the PM.

“I don’t think the interest is to know the check and balance at every level, but what people don’t want is individual interest coming out as public law, and something that should not come out as law,” said the PM.

He said submission to the cabinet is the check and balance as if the OAG submitted directly to Parliament there there is no check and balance.

He said whatever goes to the Parliament one cannot blame the agency. It is the government. Once the government agrees the blame does not go beyond the government.

“If we didn’t read through or understand then it is our fault. Since the government submits the government bills to the Parliament it is the government’s responsibility,” said the PM.

Consultation

When asked about what consultations are being done with stakeholders in making changes the PM said, “Stakeholder consultation by that agency should happen and will happen and if it does not happen then when it comes to the cabinet that itself is a consultation as it has all 10 ministers and the Prime Minister.”

He said in the case of the OAG’s compounding authority the Cabinet had approved it after consulting the Judiciary but they agreed to drop it once the Upper House objected.

Apart from the new changes, the interpretation of the changes of the Civil Service Reform Bill is not clear within government agencies themselves.

The RCSC has said that the autonomous Media Council that looks after media content will continue, while others in the government say it will be scrapped after Bhutan Infocomm and Media Authority lost its autonomy. The final call all comes down to how the Information Communications and Media Act is amended.

Timeline

Given the number of Bills announced the PM said it will take time and it is not all coming in the summer session.

“There is no time frame but whatever we are doing we have legalized,” said the PM.

Opposition and NC

The National Council Chairman Tashi Dorji said all the 46 Acts cannot just be changed and assumed to be passed, but will have to be put to both houses and if they bring new clauses there will be debate and deliberation in both houses.

He said for now the Civil Service Reform Act takes care of any issues.

He said additional clauses going outside the Civil Service Reform Bill is a different story.

Opposition Leader Dorji Wangdi said it is the duty of the Parliament to look into it if some people bring in vested interests and clauses in the bills.

He said it was very selfish of the OAG to bring in the compounding clauses under the guise of the Civil Service Reform Bill, but the Parliament dealt with it.

He said the Parliament have a look at the Bills coming in.

The Bills being changed

Among the major bills with major changes, the Environment and Natural Resources Bill will combine 6 Acts into one and the same goes for the Bhutan Food, Drug and Bio Security Bill which will also consolidate 6 Acts.

The Construction and Surface Transport Bill will repeal one Act and the Bhutan Qualification and Professional Certification Bill will repeal one Act.

The medium bills with ‘medium changes’ are the Seed Act, Pesticides Bill, Livestock Bill, Civil Aviation Bill, Bhutan Standards Bill, Consumer Protection Bill and Information Communications and Media Act. 

The Bills with ‘minor changes’ under the Ministry of Industry, Commerce and Employment are the Industrial Property Act of Bhutan 2001, Copyright Act of Kingdom of Bhutan 2001, Labour and Employment Act 2007 and Bhutan Postal Corporation Act 1999.

Under the Ministry of Infrastructure and Transport the Bills undergoing minor change will be the Tenancy Act 2015 and Road Act 2013.

The Ministry of Agriculture and Livestock will see the Biodiversity Act 2022 and Cooperative (Amendment Act) 2009 seeing changes.

The Ministry of Education and Skill Development will see changes in the Child Care Protection Act 2011, Child Adoption Act of Bhutan 2012 and Domestic Violence Prevention Act 2013.

The Lhengye Zhungtshog Act 2021 will also undergo change.

The Ministry of Home and Cultural Affairs will see the most number of Bills being changed here.

These are the Movable Cultural Properties Act 2005, Immigration Act 2007, Religious Organization Act of Bhutan 2007, Disaster Management Act 2013, Local Government Act 2007,

Local Government Members Entitlement Act 2015, Royal Bhutan Police Act, Prison Act of Bhutan 2000, Anti-Money Laundering and Countering Financing of Terrorism Act of Bhutan 2018 and Civil Society Organization Amendment Act 2022.

The others are the Office of the Attorney General Act and the Audit Act 2018.

Apart from the 46 Acts above the Civil Service Act will also undergo amendments.

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