NC spots OAG attempt to vastly inflate powers and strikes it down in the Civil Service Reform Bill

The Civil Service Reform Bill of Bhutan 2022 was supposed to be a bill to reform the civil service but a curious insertion took place in section 31 which had nothing to do with the reforms, but would have hugely inflated the powers of the Office of the Attorney General (OAG) by giving it court like powers to compound petty offences and collect fines instead of prosecuting them in court.

Section 31 of the Civil Service Reform Bill of Bhutan 2022 says ‘The Office of the Attorney General shall compound petty offences in accordance with the compounding rules.’

The National Council of Bhutan recommended to remove section 31 as it was inconsistent with the objectives of the Bill and gave 10 reasons for it.

It was found that while all other Sections of the Bill were well aligned with the aims and objectives of the civil service reforms, Section 31 of the Bill has no relation to the other Sections and to the objectives of the reform.

There was no checks and balances as Section 31 gives full power to the OAG to compound all petty crimes in the country. Compounding of crimes means payment of fine instead of imprisonment without filing any criminal charges. The OAG will be authorized to collect fines and dispose off most criminal cases. No other institutions would be involved and the compounding power is to be exercised exclusively by the OAG.

In section 31, petty crimes have not been defined and it has been deliberately kept vague and open ended. During the consultative meeting the Attorney General explained that petty crimes would mean and include all crimes for which punishment prescribed is 3 years imprisonment and below (Misdemeanor).

Therefore, according to the proposed Section 31, the OAG will settle and dispose off all criminal cases (for which punishment is less than three years) by collecting fines instead of prosecuting the case.

The compounding of cases will decriminalize many crimes and criminal conduct in the country. For example, under the Penal Code of Bhutan, there are 170 offences listed as crimes. Out of 170 crimes, 107 crimes fall under the category of Misdemeanor and below. Under the Anti- Corruption Act of Bhutan, 27 offences fall under the category of Misdemeanor and below. In the Information Communication and Media Act of Bhutan, there are 28 crimes for which punishment is Misdemeanor and below. Similarly, there will be many crimes listed in other Acts and Regulations for which punishment is less than three years.

The compounding of the cases and the decriminalization on such a large scale will have major impact and effect on the legal system, the criminal justice system and the Rule of Law. It will require amendment of many laws, including the way criminal cases are processed and trials conducted

One of the important aspects of the overall transformation initiative and civil service reforms is accountability. In the context of crime and punishment, accountability would mean strict enforcement and implementation of the laws which would in the long run, enhance respect for the laws and trust and confidence in the legal system.

 However, the leniency in the enforcement of the laws on grounds of compassion and the compounding of offences would weaken the respect and fear for the laws, thereby impede accountability and Rule of Law.

The NC said there could be political influence and abuse of power as in the criminal justice system, the power to investigate and prosecute, and to compound cases are enormous powers.

The Attorney General (AG), as the Chief legal officer of the country wields vast powers.

In many countries around the world, these powers have been abused by the political leaders, more so in countries where the Attorney General is a political appointee.

The political leaders, in connivance with the Attorney General witch hunt and go after the members of the opposition parties. However, when their members or supporters commit crimes, the OAG either refuse to investigate and prosecute, keep the cases under wraps, under charge or compound the crimes.

The NC said in Bhutan, on few occasions, the OAG had refused to prosecute high profile cases which involved its political masters. In future, the political masters of the AG may conveniently use Section 31 to favor their supporters and voters who may run afoul of the laws.

NC said there is a conflict of interest as the OAG is a prosecuting agency. If the AG is authorized to compound cases, he is in effect deciding the cases. The AG cannot be both the prosecutor and the judge. Also, unlike in the courts where there are three parties (prosecutor, defendant and the victim) and where the trial is conducted openly, there are no checks on the compounding powers of the OAG. The OAG is the sole authority. The power is susceptible to abuse.

According to the reports of the RBP, the crime rate in the country, in particular the crime committed by the youth have been increasing. Many of the youth related crimes such as assault, battery, larceny, consumption of drugs, attempt to rape, malicious mischief, etc, fall under compoundable offences. In addition, crimes which are on the rise in the recent times and which needs stringent enforcement such as sexual harassment, marital rape, official misconduct, endangerment of a child, prostitution, etc are crimes which are compoundable.

If these crimes are allowed to be compounded, there will be no fear for the laws, the consequence of which is that there will be a rise in the crime rate in the country

When the offences are compounded, the defendants are not prosecuted and no trials are conducted.

None of the defendants whose cases are going to be compounded will be considered to be “convicted”.

The qualification and disqualification of civil service and public service as contained in respective organizational laws provide that the person should not have been “convicted of a crime”.

All the individuals whose crimes are compounded will qualify for the elective post  because, there will be no convictions and criminal record against them. They can also never be removed from service. Consequently, the civil service and public service will be filled with individuals with criminal antecedents

The compounding of amount will range from Nu 1 to 1,35,000.00. Only those who

 can pay fines will be able to compound their crimes. Many criminals who normally come from

 poor and broken families will have to follow the normal process and serve their sentences.

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