Local Gyelpozhing residents expressed their concerns on how effectively the ‘government lawyer’ or the Office of the Attorney General would be able to prosecute the case against senior members of the government involved in the case.
Gyelpozhing town tshogpa Gyembo Dorji said, “Many people here in Gyelpozhing feel that the Office of the Attorney General may not be able to take action against the government as he is a government lawyer and many high profile people from the government among others are also involved.”
Many local residents according to Gyembo say that they have lost faith in the fairness of the government machinery after their ordeal in the last few years.
Gyembo said, “People here say that the issue came up in the first case due to the government not allotting plots fairly and now we are expected to believe that a government lawyer will look after our issue in court.”
He said that local residents have all been following the case very closely and are very happy with both the media for bringing out the issue and the ACC in investigating it thoroughly; however, he said the same could not be said for the government and the OAG.
This concern from Gyelpozhing comes in the backdrop of a growing national debate on whether the OAG is in a situation of ‘conflict of interest’ as the government lawyer prosecuting senior members of the government including the head of the government which is the Prime Minister.
In reply to a question on the conflict of interest the Attorney General Phuntsho Wangdi said, “We are currently reviewing the case and so we need some time after which we will come out with a suitable decision”.
Conflict of Interest
Former Attorney General and now an Opposition MP, Damcho Dorji believes that there is a strong conflict of interest.
“I think ACC is following procedures but the indication has to come from the OAG or the government that there is a conflict of interest. I think there is definitely a strong conflict of interest as the Attorney General is not a constitution office but directly under the Prime Minister who selects him and to whom he is accountable,” said Damcho Dorji.
“The main reason I resigned from my post as the Attorney General was for the very reason that the position of the OAG had become very vulnerable to the Prime Minister,” added Damcho Dorji.
He said that during the pre-2008 National Assembly discussions a Chimi had raised the need to make the OAG a constitutional post but it was not accepted by the then ministers.
Damcho Dorji said that in his capacity as the former Attorney General his advice for the current AG would be to inform the government that there is a conflict of interest and then hand the case back to the ACC who can prosecute it.
Even independent legal experts share the same position as Damcho Dorji.
A senior legal expert said, “There is absolutely a conflict of interest as the Prime Minister is the employer of the AG and can hire or fire him. The AG functions at the pleasure of the PM so how can the employee ever sue the employer.”
Another legal expert said that ACC should have prosecuted the case on its own by either using its own lawyer or hiring an independent public prosecutor which the ACC can do under its own Act.
Under, ‘The Office of the Attorney General Act 2006,’ Section 19 says, “The Druk Gyalpo shall, by warrant under His and seal, appoint an eminent jurist as the Attorney General of Bhutan on the recommendation of the Prime Minister.”
Section 20 says, ‘The Attorney General shall be accountable to the Prime Minister’.
Section 50 says The Prime Minister may remove the Attorney General on grounds of physical, mental, or other incapacity of a permanent nature, any violation of this Act or conviction under any other law.
As per the Act since normal civil service laws don’t apply to the Attorney General he will not have the same opportunity to appeal to the RCSC against the Prime Minister’s decision.
The other side
However, there are also views that the OAG though a government lawyer is prosecuting government officials as individuals who have committed offences against the government.
Former High Court Judge and now eminent National Council member Kuenlay Tshering said, “It is individuals that are being charge sheeted by the OAG and so the OAG can prosecute them.”
Under the same OAG Act section 46 on Conflict of Interest says, ‘The Attorney General may not appear, advice or represent any party against the Government.’
The ACC’s options
The Anti-Corruption Commission which has maintained a studied silence on the whole conflict of interest issue still has options.
A reliable source said, “What the people are not realizing is that the ACC still can check and balance the OAG as the OAG can only finalize their specific court charges on Gyelpozhing after consultations and approval by the ACC.”
The ACC in submitting the case to OAG as per normal procedure would have already filed preliminary legal charges quoting specific legal sections in applicable laws like Thrimzhung Chhenpo (predecessor of penal code), Land Act 1979 and Royal Kashos.
The OAG as in other ACC cases will go through the charges and either increase them or reduce them but for each modification of the charges OAG will have to offer clear legal explanations and grounds to the ACC.
“If the ACC is not satisfied then ACC can still take over the case and prosecute it on under its own Act,” said the source.
The source also said that speculation by some on whether ACC Act 2011 would become retroactive in an incident that occurred from 1999-2002 is not applicable as the charges would not be under the ACC Act but under the then applicable laws like Thrimzhung Chhenpo, Land Act 1979 and Royal Kashos.
ACC under section 128 subsection 3 can 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, delayed without a valid reason, manipulated or hampered by interference.
A senior legal expert pointed out that in most international cases involving such a situation an independent public prosecutor would be appointed as is done by the Attorney General in the USA. In India the CBI have their own lawyers to prosecute cases and do not depend on the Attorney General.
Civil or Criminal ?
A major factor that OAG would have to deal with is whether to file a criminal or civil case on Gyelpozhing. This is relevant as under the ECB rules a registered criminal case against a candidate prevents him or her from taking part in the elections until the case is over.
According to the two legal experts that this paper talked to the Gyelpozhing case would be essentially a criminal case as it involved illegal sale of government land.
Damcho Dorji said, “The Phobjika case sets a very clear precedent as it was filed as a criminal case by the OAG after the ACC investigation was complete”.
Apart from the tricky issue of prosecution the Gyelpozhing conflict of interest issue also extends to senior Judges in the Judiciary as some of their close family members’ plots have also been frozen in Gyelpozhing.
Damcho Dorji said, “In such cases the judges who are related should excuse themselves to avoid conflict of interest.”
He said, “Both in international best practices and domestic situation it is not only important that justice be done but also justice should be seen to done otherwise the whole process will lose credibility even if it is done in a fair manner”.
When contacted the PM’s office declined to comment on the issue.