A Litmus Test of our Parliamentarian’s Wisdom

Observers and legal experts say check and balance is very important
The Seventh Session of the Third Parliament of Bhutan, which is scheduled to commence from June 2, 2022 has several important issues and Bills to deliberate. However, most eyes are on what the National Assembly (NA) has called a disputed Bill - Anti-Corruption (Amendment) Bill of Bhutan, 2021, which observers say will reflect the wisdom of the parliamentarians. While some media reports have quoted legal experts questioning the unconstitutionality of the Anti Corruption Commission (ACC) to prosecute cases, there are others who say no one is even raising questions about what would happen if the ACC is not given the mandate that they currently have. Additionally, observers say that the current provision is required for check and balance, just as there is check and balance for the ACC.  
The debate revolves mainly around Section 128 (3) of the ACC Act 2011 which says “Notwithstanding subsection (2), the Commission may 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: (a) Delayed without a valid reason; (b) Manipulated; or (c) Hampered by interference.” Meanwhile, opponents of the ACC Act cite Article 1, 5 of the Constitution, and Article 27 and say it is unconstitutional for the ACC to act both as the investigator and prosecutor.
When asked about it, a very senior retired justice said it is not unconstitutional at all. “The Supreme Court said so in 2013. OAG gets the first bite, and only if they refuse to prosecute, the ACC has the right. Moreover, the Judiciary is there and it is not guaranteed that the Court will accept cases unless there is sufficient evidence,” he said, adding that there should be check and balance in every stage. “I really do not know who these legal experts are and who feels that it is unconstitutional. If the question is about constitutionality, these people should take the matter to the Supreme Court, who is the interpreter of the Constitution rather than making their own interpretations,” he said.   
He added that the Constitution has given the OAG immense power.  Article 29, Section 4 of the Constitution says that “The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law. And the AG is a political appointee accountable only to the Prime Minister.” He stated that while we are fortunate right now to have a very professional AG and the OAG, including the government who has not misused these provisions, the future is not certain. “Think about a corrupt government and an AG who is obliged to the Prime Minister. Who will hold them to account? Cases against the government and their supporters may be just dropped at the whims and fancies of the government of the day,”   he said, emphasizing that this is where the ACC comes in. “Separation of powers and check and balance are very important,” he reiterated.  
A practicing lawyer said that without any significant reasons a Section will not be “withheld” in a new Act. From the ACC Act of 2006, Section 91, which is Section 128 (3) of the ACC Act today was withheld. “There definitely would be a reason for the parliamentarians of that time to have retained it.” 
“Another argument I saw was reference to Article 27 (5) which says prosecution of individuals, parties or organizations on the basis of the findings of the Commission shall be undertaken expeditiously by the Office of the Attorney General for adjudication by the courts. However the next Section (6) says the Anti-Corruption Commission shall function in accordance with the Anti-Corruption Act,” he said, underlining that the ACC is doing just that. 
According to him, most seem to be reading just the Constitution and interpreting. “The Constitution of Bhutan, Principles and Philosophies, says “it is not necessary to include every detail regarding the ACC in the Constitution.” “Thus, only the most important provisions are included in the Constitution. Other detailed provisions should be incorporated in the Act.” 
Concerning views expressed that the ACC as prosecutor will be bitter as ACC will go all out to win cases, a sitting Judge said “those saying so do not understand the separation of powers and are undermining the Judiciary.” “What the legal experts should know is that the Courts base their judgments on evidence. Just because ACC managed to win some cases, it does not mean that judges listened to whatever ACC lawyers had to say and closed our ears to others. Judgments are passed based on solid and sufficient evidence. For the Judiciary, everyone is equal, whether it is the ACC, OAG or an individual,” he said. 
Meanwhile, a former lawyer who has been following the case said the question is about accountability and that he has always been thinking who would hold the OAG to account. “Like many say, as of now nothing has come in the public view where the OAG refuses to prosecute the government or an ardent supporter of the government. But there is no guarantee that it will not happen.” “People talk about conflict of interest if the ACC investigates and also prosecutes. What about conflict of interest in the OAG,” he questioned.
According to him, statement from the OAG saying they dropped 17 cases in the last five years which ACC had forwarded is evidence that the ACC respects the OAG. Nonetheless, he underlined that three cases wherein the OAG either refused to prosecute or appeal and which the ACC did was upheld and the ACC won. “This should be sufficient evidence for everyone that the ACC should be in the picture.”
Speaking about the right to appeal by the ACC to the Supreme Court, he said it was very interesting to read that media spokespersons of ACC and Judiciary did not have answers. “Once a case is admitted in a court and prosecuted, it becomes a case. There is no need for a special provision. The appeal system is part of the judicial process,” he said.  
He further added that ACC would be demoralized. “After months of investigations, if their cases are dropped or not taken seriously, they will lose the enthusiasm to work. Moreover, what all should know is that an investigator will know more about a case than a prosecutor. Even at the individual level a person will know more about a case than his/her lawyer,” he said, adding that members of the two houses should take everything into consideration and think about future ramifications, when deliberating the Bill. “If an error is made today, it will take years and even decades to rectify,” he said. “More importantly, we have to think about check and balance. And if 128(3) is removed the ACC will be like a tiger or a dog without any teeth,” he added.
A member of parliament (MP) also emphasized on check and balance and dangers of making one institution very powerful. “In this case, a middle path is required and we definitely have to think about the long term benefit of the country,” he said. When asked what he meant by “middle path,” he said retaining the current provisions could be the answer. “The ACC and OAG are equally important and unlike what others say, I would like to believe that both are making their submissions keeping national interests in mind,” he said, adding he hopes all MPs will also deliberate based on national interest.    
Meanwhile, a senior media professional mentioned that even if something is unconstitutional, he does not understand why it has to be removed if it is in the interest of the country. “The Supreme Court will have the final say about constitutionality. However, what I would like to convey and request our legislators is to retain laws, clauses and provisions that are beneficial for the country. Even legal experts have to think about it rather than just talking about legality,” he said, adding that he read media reports mentioning that the ACC and OAG are working closely and on to sign a memorandum of understanding (MoU).”That was positive. But sometimes the media does more damage; for instance by creating differences between individuals and agencies and even indirectly lobbying. The media should also keep the national interest in mind,” he said.