As a political appointee, a fixed five-year term is not required, legal practitioners say
OAG: The legal fraternity are questioning the five-year term for the Attorney General, which was one of the provisions that the Parliament endorsed when it passed the Office of the Attorney General’s bill 2014 in the last session.
Former Chief Justice and the Constitution drafting committee’s chairman, Lyonpo Sonam Tobgye in his book, ‘The Constitution of Bhutan principles and philosophies’ states that the attorney general is a political appointee.
“It is a common practice for an Attorney General to serve at the pleasure of the Prime Minister and he resigns when the Prime Minister vacates the office,” the book states.
Judiciary officials are pointing out the Attorney General’s term ends with the government’s and not after five years as specified in the recently endorsed bill.
This provision of the bill, Supreme Court officials said could be rendered as unconstitutional, indicating that the bill needs to be amended. “As the Attorney General is a political appointee, he has to leave office when the term of government that appointed him ends,” the official said.
However, both the Office of Attorney General Act (OAG) 2006 and its amended version have specified the term of the Attorney General as five years. Supreme court officials said the Parliament fixing a five-year term for the Attorney General is what makes the provision unconstitutional.
Parliamentarians touched on both the pros and cons of having the term fixed at five years while deliberating the bill in the recent session.
The chairman of the Good Governance committee who presented the bill in the Assembly, Dawa Gyaltshen, said that the committee had pointed out problems of having the five-year but left it for the floor to decide.
A member of the joint committee for the bill, Ritu Raj Chhetri, said he did submit to the House that putting a fix term of office for the Attorney General was not in line with the spirit of the Constitution.
“Drawing on international best practices, the understanding is that the official serves at the pleasure of the prime minister and his tenure is same as the government,” Ritu Raj Chhetri, who is also the vice-chairman of the Assembly’s legislative committee, said.
However, the majority of parliamentarians had submitted differently during the deliberation.
Members from the ruling party said that despite being appointed by the previous government, the government did not have a problem with the former attorney general who recently vacated the office. The members argued that, an attorney general continuing to serve two governments was a healthy trend.
“That the tenure of the Attorney General does not start with that of the government is unique to Bhutan,” opposition member Ugyen Wangdi said.
Following the five-year tenure in the present situation, an attorney general’s term crosses over to the next government’s term, which may be from a different political party.
Ugyen Wangdi said that the house decided on a fixed term to ensure the stability of the OAG. He said that if it’s left up to the government or the prime minister, then there are chances of favouritism.
“As long as the Attorney General serves the government and the interest of the nation, his tenure is not a concern,” he said.
Article 29, Section 3 of the Constitution states, that the Attorney General as the Chief Legal Officer shall be the legal advisor to and legal representative of the government.
Among his other responsibilities, Lyonpo Sonam Tobgye’s book states that the Attorney General advises the government to ensure that the rule of law is maintained and that the government actions are legally and constitutionally valid.
“The Attorney General will be a direct political nominee of the Prime Minister,” Lyonpo Sonam Tobgye’s book states. “The Office of the Attorney General, is conferred an autonomous status to ensure its professionalism and avoid engagement in any personal or political vendetta.”
Judiciary officials said that the prime minister should have the right to appoint a person that he is confident of to the post and not be bound by law to accept someone appointed by another.
The National Council introduced the bill for amendment to strengthen OAG’s autonomy and address problems of implementation.
The bill makes the Attorney General accountable to His Majesty the King and not the prime minister alone.
By Tshering Palden