The Anti-Corruption Commission (ACC) appealed to the Supreme Court (SC) yesterday against the High Court’s acquittal judgements for the eight officers and two non-commissioned officers of the Royal Bhutan Army (RBA) in the desuung case last month.
Officials from ACC said they appealed because the prosecutor (RBA), did not appeal against the judgement.
“We appealed because we have the constitutional mandate to prevent and combat corruption,” an official said. “If we don’t appeal because RBA doesn’t appeal, there will not be justice.”
It was learnt that ACC requested SC to review the cases, as they were not satisfied with the HC’s judgments.
The ACC had also appealed to the High Court’s larger bench against the judgments but the bench dismissed the appeal stating that the ACC does not have the legal standing to pursue the case.
The larger bench cited section 27.5 of the Constitution, which states, “Prosecution of individuals, parties or organisations 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” as the reason for dismissing the appeal.
It was learnt that the larger bench stated that ACC was involved in the case only as an investigating agency and has no authority in prosecution.
“The commission doesn’t have the right to appeal, as it is not the prosecutor. It would be unconstitutional,” the HC’s dismissal letter stated.
The ACC now appealing the case to SC has created a legal anomaly with some legal practitioners pointing that it is illegal and some saying that it has created procedural issues.
A legal practitioner said that a subsection of section 128 of the Anti-Corruption Act clearly states that ACC could prosecute a case only if the prosecutors delay the case without valid reason, manipulate it, or hamper it by interference but in this case, RBA is the prosecutor and ACC taking over the prosecution is not legally correct.
The official also pointed out that ACC is an investigating agency and there will be a conflict of interest if they start prosecuting the case too.
An official heading the legal division of an organisation said that the case is different from Gyalpoizhing land case and the land case that is under trial in Trongsa, where the judiciary allowed ACC as the prosecutor, because this case was already prosecuted by the RBA. “In the two cases, Office of the Attorney General (OAG) as the state prosecutor did not prosecute the cases.”
“It is clear that ACC has no legal standing in the case,” the official said.
He said that it is a breach of fundamental rights of the litigants. “This is a total denial of justice.”
Another legal practitioner said that since HC had already pointed out that there were investigation lapses, ACC could be appealing to cover it up.
While Supreme Court officials were not available for comments despite repeated requests, many observers question the basis of SC’s acceptance of the appeal. The SC has also accepted ACC appeal against HC’s bench III judgment against an officer and a NCO in the same case in August. No hearing has been conducted to date.
It was learnt that the SC had asked the HC to hand over all the files of the cases yesterday.
ACC officials said they pursued the case for justice and requested the SC to go by the spirit of the law and not by the letter.