The Bhutanese Leading the way.
Bhutan recently issued an Interpol Red Notice against rape convict Chencho Gyeltshen who had fled to Australia, and is also attempting to issue another Red Notice against corruption accused and former procurement officer Sonam Dorji who also left for Australia.
In both the cases Bhutan cannot do much in the absence of a Mutual Legal Assistance Bill.
This is increasingly relevant as more Bhutanese head abroad and also the increasingly cross border nature of crime where oversight and law enforcement bodies hit a wall the moment any crime or corruption is cross border in nature or the criminal flees the country.
The Ministry of Home Affairs has drafted a Mutual Legal Assistance (MLA) Bill that will help Bhutan to get better cooperation from other countries on such matters and at the same time also give cooperation.
The absence of a specific legal framework to enforce MLA in criminal matters has led to numerous issues and challenges in solving cases by law enforcement agencies like Anti-Corruption Commission (ACC), Department of Revenue and Customs (DRC), Office of Attorney General (OAG), Bhutan Narcotics Control Agency (BNCA) and RMA.
The ACC, DRC, OAG and RMA have reported dropping some cases in the absence of a MLA mechanism to collaborate with foreign law enforcement authorities in investigations, prosecutions and judicial proceedings.
The MLA Act, when passed, would help the above authorities to help investigate and prosecute MLA cases involving foreign jurisdiction. The MLA will help Bhutan enter into bilateral or multilateral treaties, drawing its basis from the MLA Act.
According to the Department of Law and Order the proposed law will benefit the country at a global scale by facilitating exchange of MLA services with other countries.
“It, therefore, strengthens the criminal justice system. In an increasingly globalized world, where criminal offences are becoming more and more transnational in nature, criminal justice system can fail in the absence of international cooperation mechanism such as MLA.”
In the absence of MLA Act, the DLO is not able to facilitate legal assistance to the requesting state. DLO has received some requests from a neighbouring country for various MLA services. The MLA Act would also provide legal basis to refuse or execute those requests upon invoking the provisions on ground of refusal and conditions under which incoming and outgoing requests can be implemented.
The MLA Act would also help Bhutan meet several international obligations it has signed on to.
Bhutan has ratified the United Nation Convention against Anti-corruption (UNCAC). MLA is an important part of UNCAC.
Bhutan has also ratified the United Nation Convention against Transnational Organized Crime and its protocol: Protocol to Prevent, Suppress and Punish Trafficking in Persons (TIP), especially Women and Children in 2022 requires a MLA.
Bhutan joined the Asia Pacific Group (APG) on Anti-Money Laundering (AML)/Countering the Financing of Terrorism (CFT) in 2011 and MLA is needed under it.
There are 14 priority sectors of cooperation under BIMSTEC and MLA is one of the priority concerns related to areas of cooperation falling under Counter Terrorism and Transnational crimes (CTTC).
Bhutan has ratified the BIMSTEC Convention on Cooperation in Combating International Terrorism, Transnational Organized Crime and Illicit Drug Trafficking, 2009 where MLA is an important element.
As a member of international community, Bhutan is subject to many global review mechanisms. Under the international instruments, MLA is regarded as a basic legal framework required to be put in place to enhance international cooperation and strengthen criminal justice system.
Such basic international requirements would have to be met to secure better ranking under various review mechanisms, avoid facing sanctions, build international rapport and demonstrate Bhutan’s commitment and support to the global initiatives.
The main objectives of the proposed Act, amongst others are to enhance international cooperation and strengthen criminal justice system, delineate clear roles and responsibilities of Central Authority and Competent Authorities and relevant law enforcement agencies to deal with matters of MLA by having a uniform application of law on MLA.
It is also to enhance the domestic mechanism in areas of criminal justice system and fulfil the technical compliance under international assessment mechanisms, elevate rating in the international review mechanism and avoid getting international sanctions and give a legal status to MoHA as a Central Authority for MLA as approved by the Royal Government of Bhutan (RGoB)
Other forms of mechanism will not have same level of legal standing in the international arena. For instance, the ACC, during the consultation meeting, informed about invoking letter of rogatory to request for some international cooperation in dealing a case. However, this mechanism could not help ACC receive the necessary legal assistance from the foreign jurisdiction in the absence of a MLA law.
When legal mechanism such as MLA is not there, Bhutan is not able to take full advantage to exercise its own right to accept or reject a request of MLA.
Reciprocity is an important aspect while executing MLA requests. Therefore, Bhutan will not be reciprocated well in the field of international cooperation if Bhutan fails to provide the necessary legal assistance to the requesting foreign states owing to the lack of domestic process in MLA.
Having a MLA law would form strong legal basis to enforce MLA. It can achieve legal recognition in the international arena and receive legal assistance from the foreign jurisdiction
The proposed MLA Act has seven chapters and 135 sections. The law outlines the roles and responsibilities of the Central Authority and Competent Authorities. The proposed MLA Act shall identify DLO as the Central Authority for MLA matters and shall be mandated to ensure that every incoming and outgoing request on MLA is routed through DLO as the identified Central Authority.
The Central Authority has the responsibility to certify the documents to be used as evidence in the court of law in the foreign jurisdiction. The Authority may have to facilitate sharing evidence via audio visual, transmit document, record, article or any other material required by the Central Authority of the Requesting State party and facilitate movement of identified legal service provider to the Requesting State. The Authority may initiate entry into bilateral or multilateral treaties on MLA in consultation with the Competent Authorities and Ministry of Foreign Affairs.
The proposed Act shall also give power to Central Authority to refuse requests and set conditions to a requesting state before executing a request for MLA by any law enforcement agencies for both incoming and outgoing requests. The proposed Act will provide procedures to execute MLA requests pertaining to judiciary by a competent court of jurisdiction.
The Bill was drafted in consultation with various stakeholders.
The MLA Bill process started in January 2018 when the Home Ministry was identified as the Central Authority for the MLA.
It was drafted in the time of the former government but could not be introduced to Parliament and it is now expected that this government will take up the MLA during the tenure of this fourth Parliament.
