Institutional obstruction to fight corruption

The news of “no uniformity in the treatment of corruption cases” by the institutions is worrisome and impedes the path to a corruption-free society. This also sets a wrong perception in a society and has far reaching consequences. The defenses claimed by the institutions or their officials are confusing and defies the order issued by the Anti-Corruption Commission (ACC).  There is no defense of right to presume innocent until proven guilty till the court completes its proceedings as claimed by the government.  Also, in case of civil servants, the Commission has  no discretion to suspend or not under Bhutan Civil Service Rules and Regulations. 

First, Section 167 (2) of the ACC Act 2011 states “A public servant who is charged with an offense under this Act shall be suspended with effect from the date of the charge till pending the outcome of any appeals.” This section makes it mandatory on the part of ACC to suspend the public servant as long as it fulfills the conditions set in Section 167(1). The conditions under Section 167(1) are if a public officer is “likely to impede the investigation proceeding or when there is a likelihood of available evidence being influenced, removed or tampered from the official record which may be under his or her his subordinate’s guardianship.”

Therefore, there exists no other protection against such orders because the suspension order is to fulfill the possible obstruction during the pendency of the proceeding or investigation as provided under Section 167(1). That is why the suspension order immediately ceases its effect once a public official exhausts his judicial process, irrespective of whether convicted or acquitted.

Section 167(2) of the ACC Act is unambiguous and crystal clear. The suspension period takes “effect from the date of the charge till pending the outcome of any appeals” meaning during the pendency and not after judicial proceedings. Further, Section 212A of the Civil and Criminal Procedure Code (Amendment 2011) provides adequate protection to the person charged. This Section ensures compensation when a person is “acquitted for the loss of income caused by the criminal proceedings and to be reinstated at the former place of work.” Therefore, for example, if  a public official is acquitted, he or she is entitled to loss of salary or other entitlements during the pendency of court proceeding. 

In the case of civil servants, Section 93 of the Civil Service Act, 2010 requires “any agency suspending or prosecuting a civil servant in the court of law” to notify RCSC. This means, ACC only has to notify RCSC when a civil servant is suspended on corruption charges. However, RCSC’s reliance on BCSR 2018 in suspension is derogatory to ACC Act. Article 1(13) of our Constitution clearly ensures separation of power and   Article 10 (1) explicitly vests all legislature power to the parliament. Consequently, BCSR is merely a rule or quasi-legislation and its scope is only within the powers granted by the Civil Service Act. Otherwise, any organization can come up with similar by-laws or rules to defy similar actions authorized by the parliament.

The current interpretation of Section 167(1) by institutions may lead to abuse of right to appeal by the individual officials to buy time. It takes years to reach the final decision of the supreme court. Buying time is useful for the officials as they can occupy their current position till the final decision,  even if one gets convicted eventually.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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