The acting Chief Justice, Sangay Khandu said the dismissal of the Office of the Attorney General’s case against Anti-Corruption Commission for prosecuting the Gyelpozhing land issue at Mongar district court was because the high court did not have the jurisdiction to provide advisory opinion.
Justice Sangay Khandu said it was only the Supreme Court that could provide any advisory opinions and that too only when His Majesty the King asked for it.
That rationalization was drawn from Article 21, section 8 of the Constitution, which allows only the Druk Gyalpo to refer question of law or fact, of a nature of public importance and deemed beneficial to obtain the Supreme Court’s opinion.
The Justice also gave another justification that the OAG should be fighting legally against another party but the OAG did not involve any other party.
Moreover with the case being with the Mongar district court and it being a sub judice case the high court cannot interfere, the acting Chief Justice said.
The High Court order also said that there was no legal standing of the OAG and instead the OAG had only tried to take a suo moto (on its own motion) control over the matter.
The court order said the ACC Act was passed by the Parliament and that they could not tell whether it was in violation of the Constitution or not as the matter was sub judice.
Earlier the OAG had filed the case in court citing that under the constitution only it had the right to prosecute cases. It also argued that section 128 which allowed ACC to prosecute cases on its own, violated the constitution. The OAG had also alleged that the ACC had interfered in the OAG’s jurisdiction.
The OAG had filed two cases against the ACC after a letter from the cabinet asked the OAG to look into the legality of the ACC’s suspension of the Speaker and the Home Minister.