NC will table Anti-Corruption Amendment Bill, 2021

Rinzin Wangchuk

Whether the Anti-Corruption Commission (ACC) can both investigate and prosecute, it appears, will be a bone of contention when the National Council discusses the Anti-Corruption (Amendment) Bill, 2021, next month.

The Council’s Good Governance Committee (GGC) is in the midst of a series of consultations on the Bill that the National Assembly passed in June. The Committee’s Chairperson, Dagana MP Surjaman Thapa, said that besides the issue of constitutionality of prosecution by the ACC, the committee discussed ACC’s  organisational and human resource independence and issues related to confiscation of properties while awaiting the trial, and provision of compensation and damages in the case of acquittal.

Consultative meetings were held with the Office of the Attorney General (OAG), ACC, Bhutan Transparency Initiative (BTI), and GGC of the two houses.

MP Surjaman Thapa said that while some stakeholders also proposed to repeal the impugned section 128(3) of the Anti-Corruption Act 2011, some suggested to retain it to ensure a checks and balances mechanism for the OAG, as a state prosecuting agency and being a political appointee.

Section 128(3) of the Act provides that the commission may carry out its prosecution or take over the prosecution process when the case is either delayed without a valid reason, manipulated, or  hampered by interference.

National Assembly’s GGC dropped the commission’s proposal to insert an additional section addressing the exceptions where ACC proposed to prosecute cases if the OAG returns, withdraws, or does not appeal a case without a valid reason. ACC’s chairperson Deki Pema told Kuensel that the ACC proposed the new insertion as a checks and balances measure, although this may be used in the rarest of rare cases.


The debate continues

Sharing his legal opinion pertaining to the proposed amendment, Attorney General (AG) Lungten Dubgyur said that the constitutional responsibility of the prosecution is solely vested with OAG and not with the ACC.

He argues that the Constitution is the supreme law of the State and as per Article 1(10), any provision of laws that are inconsistent with the Constitution is null and void.  Retaining Section 128(3), according to the AG, is in direct violation of the constitutional function between two independent constitutional offices.  “Because of this provision and due to the overlapping roles of prosecution, which is not in accordance with the Constitution nor in line with  international best practices, a lot of embarrassing controversies have cropped up over the years” he said. “This issue can be rectified only by the courts, or if not, by the Parliament.”

ACC officials, however, argued that the section in question should be retained to bring checks and balances between OAG and ACC. In an earlier interview, an ACC official said that if it is unconstitutional for the commission to play the role of prosecution, then courts shouldn’t be accepting cases such as the Gyalpoizhing and Trongsa land issues.

The past cases that were successfully prosecuted by the ACC, according to chairperson Deki Pema, bear evidence to the need of such measures besides the Supreme Court, clearly stating that the Section 128(3) is not ultra vires to the Constitution.

“Prosecution under such exceptional circumstances and rare occasions hardly constitute distraction towards a subsidiary activity as it would indeed not only be consistent, but actually necessary to the mandate of preventing and combating corruption,” she said.

The OAG argued that the recent judgment and practice of the courts in accepting ACC’s jurisdictions in the prosecution of cases exhibits a consequential fallacy in the interpretation of the  Constitution when placed in juxtaposition to the principles of due process and rule of law enshrined in the Constitution.

Some concerns were also raised on conflicts of interest (CoI) related to both investigation and prosecution being done by the ACC. ACC officials said that there are strong and multiple control measures in place in the ACC for managing CoI at various stages of a case, starting from the registration of a case/complaint through to the evaluation, assignment, investigation, review, and decision-making, to ensure the integrity of the investigation process.

The ACC chairperson said that each and every investigation undertaken by ACC is carried out in public interest as per the laws, rules, and the related SOPs, and no investigation is based on a personal agenda, interest of a private agency, or privately paid in any way. “The only interest for an investigating agency to resort to prosecution is to secure the public interest by ensuring that all legal recourse is exhausted to uphold the law and for justice to be done.”

The GGC will meet judiciary officials to seek views on ACC’s role in prosecution and why courts are accepting cases if it is unconstitutional.

Both officials from OAG and ACC said that they would sign a Memorandum of Understanding (MoU) to address some differences and work closely.

The ACC initiated the amendment process in 2019 based on the report of the National Law Review Task Force, country report on the review mechanism on Bhutan’s compliance to the UNCAC and ACC’s practical experience.

Organisational and HR independence

The ACC has been fighting for HR independence since the first elected democratic government. The same issue was raised earlier this month during the GGC’s consultative meeting after the National Assembly shot down the ACC’s proposal to amend Sections 8 and 28 to provide HR independence.

ACC’s chairperson explained that the Constitution guarantees independence to the ACC as a Constitutional Office, and the Anti-Corruption Act 2006 provided full authority over its organisational structure and HR. However, these were brought under the scope of the RCSC and the Civil Service Act during the enactment of the Civil Service Act in 2010.

Learning from the ECB’s experience of separating from the Civil Service, ACC officials said, an agreement will need to be reached with the RCSC in terms of phasing the transfer of civil servants in ACC who wish to revert to the RCSC, depending on their work plans and tasks at hand.

Besides strong internal work processes and mechanisms in place, ACC’s Competency Based Framework would contribute towards a smooth separation from the RCSC, serving as a frame for developing the ACC Service Rules, designing a sound career progression ladder, and further detailing the terms of reference for the various positions.

“Staff attrition is also of serious concern and the provision to make independent HR decisions could go a long way towards assuring a conducive environment to address this,” Chairperson Deki Pema said.

ACC has 131 employees as of October 12. However, 15 employees resigned, transferred, or reverted  to the RCSC in the past 21 months.

The commission proposed a total strength of 172 staff in the 12th Five-Year Plan.