Legal experts challenge Supreme Court’s interpretation allowing parallel prosecutions

Rinzin Wangchuk 

Even as the Supreme Court (SC) declared that it was not unconstitutional for the Anti-Corruption Commission (ACC) to prosecute, legal experts, including some justices, argue that it is “unconstitutional” and called for “clarity”.

The contention surfaced again after both the National Assembly (NA) and National Council (NC) retained the impugned Section 128(3) of the Anti-Corruption Act (ACA) 2011 when the respective houses deliberated the amended Bill in the last two sessions. The Bill is expected to be enacted in the next Parliament session.

The Trongsa land case, which is at the SC, also called for further scrutiny of overlapping mandates for the ACC and the state prosecutor’s (Office of the Attorney General).

Section 128(3) of the Act allows the ACC to prosecute or take over the prosecution process when the case is either delayed without valid reasons, manipulated with, or hampered by interference. This, according to some legal experts, is ultra vires to the Constitution.

Parliament in 2011 amended the 2006 Anti-Corruption Act but retained the provision that allows them to prosecute. As per Article 1(10), any provision of laws which are inconsistent with the Constitution will be construed as null and void. 

“However, due to ignorance of the lawmakers, they failed to repeal the provision that was enacted before the adoption of the Constitution in 2008,” one legal expert said.

The provision is expected to give rise to further controversies in the future. Even some justices of the High Court disagree with its own judiciary’s interpretation on the impugned Section 128(3) of the Act.


Supreme Court order 

In July 2013 the SC issued an order after the Gyalpoizhing land case. It stated that it is “not unconstitutional to subject the OAG’s prosecutorial discretion to a check and balance. “It (the ACC prosecuting) is in fact desirable under a democratic system of governance,” stated the order.

In 2013, the OAG decided not to prosecute the Gyalpoizhing case, reasoning that the Anti- Corruption Act 2011 did not have the power to review and investigate past actions.

The SC, however, stated the matter having been registered at a Mongar court implies that a prima facie case exists and the ACC was successful in convincing the court to prosecute the case. The order even stated that “any instance of similar adventurism on the part of the OAG with regard to the Gyalpoizhing case, is tantamount to obstruction of justice and the rule of law.”


Some legal experts opined that the interpretation was not done in accordance with the Constitution. Many judiciary officials were not aware of that the order was issued. Some found out about it only after Kuensel shared a copy of the SC order.

One HC justice said that the interpretation applies only to the OAG and not to the three arms of the government. “The SC overlooked Article 27 Section 5, which is in conflict with the ACC’s own Act,” he said. “The ACC Act cannot override the supreme law of the State.”

Some lawyers argued that the Constitution has exclusively granted authority to the OAG as the prosecuting agency of the State. Article 29 has primacy over Article 27. “Therefore, Section 128(3) has encroached on the principle authority granted to OAG,” one legal expert said.

One justice said that the rules of ascendancy must give way to the respective assigned duties of the constitutionally recognized bodies. “When people become the victim of the institutional emotions, we (the judiciary) must come into play as the referee to draw a reasonably and constitutionally acceptable doctrine reflecting the true virtues of justice,” he said.

“In a small country like ours, it should not have parallel prosecutions which will have serious consequences on people’s liberties and rights guaranteed by the Constitution,” he added.

The higher court as the court of appeal and as the trustee of the Constitution needs to draw a line between the usual adjudication with those of matters that need to balance the Constitutional values. “It is time for the court to weed out the stale approach of quoting the provision of the law (Katag) by the judges,” an observer said.

Some HC justices, however, say that there is no right or wrong with section 128(3) of the ACC Act. “The ACC should have certain criteria to take up the prosecution role so that it can take up cases dropped by the OAG.”

One practicing lawyer who was involved in drafting ACC Act said that the provision to allow the Commission to prosecute was drafted to ensure a checks and balances mechanism for the OAG as a state prosecuting agency and the Attorney General being a political appointee. “However, the courts have to conduct a show cause hearing to convince the court that OAG has breached Section 128(3),” he said.  “It was not done in either the Trongsa or Gyalpoizhing land cases.”

He said that the courts should have looked into whether the case filed by ACC was related to being delayed without valid reasons, manipulated with, or hampered by interference, as per the Act.

ACC officials had said that if it is unconstitutional to play the role of prosecution by the commission, then courts shouldn’t be accepting the cases which were successfully prosecuted by ACC.

Some observers pointed out that if ACC is allowed to investigate and prosecute there, will be no system of check and balance against potential abuse of power by the ACC and may override the decisions of the courts.

ACC commissioner Jamtsho said, “Where objectivity appears to be lacking in the veto decision of the Attorney General, remedial action to defend the integrity of the criminal justice system is highly desirable, irrespective of who has prosecutorial and investigative role. The ACC taking up the prosecutorial responsibility like the Gyalpoizhing and Trongsa land scam cases and the judiciary exercising its wisdom considering the larger national interest only demonstrates an evolving healthy scheme of check and balance system to promote accountability, transparency, and public confidence in the criminal justice system.”