ACC prosecuting Trongsa land case unconstitutional: OAG

Asks ACC to first convince the court of the alleged manipulations by the OAG 

With the Anti Corruption Commission (ACC) taking up the alleged illegal Trongsa land transaction case, which was initially dropped by the Office of the Attorney General (OAG), prosecutors are now questioning the legal standing of the ACC to prosecute the case.

ACC officials had told Kuensel that the Commission is taking up the case as per section 128 (3) of the ACC Act, which gives them the authority to prosecute a case. The ACC also added that they are taking up the case because the OAG manipulated the case.

OAG prosecutors shared that section 128 of the ACC Act is unconstitutional and that it is only the OAG that has the authority to prosecute cases.

Senior prosecutors cited section 5, Article 29 of the Constitution, which states, “The Attorney General shall have the power to institute, initiate or withdraw any case in accordance with the law.”

OAG prosecutors also cited section 5, Article 27 of the Constitution, which states that the “prosecution of individuals, parties or organisations on the basis of the findings of the Commission shall be undertaken expeditiously by the OAG for adjudication by the courts.”

Attorney General (AG) Shera Lhundup said he respects the ACC’s zeal to file the case, as it is a healthy sign since democratic institutional arrangements are made to provide necessary checks and balances.

He said that as much as the OAG determines to drop an ACC case report based on its merits, ACC is empowered to pursue its own due process if there is a prima facie case of fact manipulation as the ACC believes.

“But for ACC to invoke Section 128(3) of ACC Act for locus standi to file suits against suspects, it is mandatory to first convince the court of the fact of alleged manipulations done by the OAG,” the AG said. “The cart cannot be placed before its horses.”

He said ACC could not malign a statutory institution like the OAG merely on their perceived view. “They must prove before the court,” he said.

The AG said no one is infallible and decisions must be subject to tests by independent institutions like the court of law. “That is why we have democratic institutions to have better checks and balance,” Shera Lhundup said. “But all those checks and balances and tests of correctness must be subject to constitutional correctness.”

He said that if left to individual whims and self-righteousness, one could only fall deeper into the quagmire of individual frailties and fail to serve the ultimate good of the public. “A public official must be accountable for his or her decision by subjecting one’s decision to correctness tests by an independent institution, like court of law in the present case,” he said

Shera Lhundup said that the OAG’s decisions were based on several rounds of evidential and public interest tests by members of the screening corpus, as required by OAG Act. Its provision, he said, disallows it to initiate any prosecution when the credibility of evidence is of serious concern because, in a criminal case, the strict standard requirement is to prove the charges beyond reasonable doubts.

“The present situation gives the justice sector an apt opportunity to put section 128 (3) of the ACC Act to necessary test on its constitutionality because we cannot have our rule of law being derailed from its constitutional path.”

Shera Lhundup said that even when the prosecution is done by an autonomous agency, there are confirmed instances of investigating agencies withholding critical exculpatory evidence. “People must understand the health of due process and justice when the investigators become prosecutors,” he said.

ACC officials said the fact that the case is registered proves that they have convinced the court. “Court must have gone through the case thoroughly before the miscellaneous hearing was conducted,” an official said.

The ACC forwarded its findings to the OAG on July 17 last year after finding a prima facie of illegal transactions of land that were listed under Thram No 514 of the education ministry, allocation of land substitution and regularisations of excess lands, which relate to the land that was acquired to establish the College for Language and Culture Studies (CLCS).

The OAG, while dropping the case, stated that the alleged transactions were caused due to administrative lapses of the state authorities and the failure of few individuals who had passed away before the ACC investigation.

A legal practitioner, requesting anonymity, said the Supreme Court had already issued directives, interpreting section 128 (3) and stated that the ACC has the authority to prosecute cases and that it is not unconstitutional.

Tashi Dema

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