Legal system loopholes allow the corrupt an escape route

ACC feels corruption does not get due come-uppance due to certain judicial shortcomings 

Report: The basis of “not proven beyond reasonable doubt” that the judiciary uses in treating similar corruption cases differently is one of the main challenges the Anti Corruption Commission is facing today.

According to the commission’s annual report 2014 released last week, the judiciary’s reasoning of regulatory bodies having failed to perform their duties or a committee approved it has resulted in the acquittal of cases or reduction of sentences or restitution figures.

The absence of a succinct substantiation of judgments has got prosecutors and investigators confused and, more importantly, do not provide any counsel for greater efficacy in future investigations and prosecution, the commission’s report stated.

The same rationale, the report stated, also applies to judgments of conviction for public confidence.

“The system reposes much faith in the impartiality of the adjudicators (judges), in as much as it confers on them many powers,” the report stated. “If the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the perpetrators of offences would be the major beneficiaries, and the state and the society would be the casualty.”

Supreme Court chief justice, lyonpo Tshering Wangchuk said the courts follow the doctrine of stare decisis (rules or principles laid down).  He, however, said that doctrines of precedence, albeit of persuasive value, do not apply to courts at the same level.

“That’s why judiciary has an appeal system to rectify errors made by the lower courts,” the chief justice said.

He said the affected parties must move the High Court if there are any disparities in sentencing, and the precedent set by the appeal court is applicable to all the lower courts. “Punishment ought to fit the crime. However, in practice, sentences are determined largely by mitigating and aggravating circumstances,” he said.

The report also stated that judges and prosecutors must possess sound insights into the dynamics of the modus operandi of corrupt practices.  For example, basic knowledge of financial, procurement and contract management, money laundering, among others, in the legal fraternity would add value to prosecution and dispensation of justice.

Sometimes, the acquittal of accused, based on varying interpretation of laws, not proven beyond reasonable doubt, no benefit to accused, recognition of bribery/gratification as normal transaction between individuals place greater burden on investigators, the report stated.

“If nuances of corrupt practices are not understood in the light of the existing management system, for example procurement management, one may miss the whole point,” the report stated. “Corruption is not always ‘quid pro quo’, and may not necessarily reveal immediate or tangible benefits right away. Such insights of stakeholders involved in the adjudication of corruption cases will improve the criminal justice system.”

It also stated that investigation into corrupt offences invariably hits institutions, agencies and their employees, directly or indirectly. “The judiciary is no exception,” the ACC report stated.  For instance, when some of the court procedures are neither clear nor standardised, it can be subjected to the vagaries of the adjudicators and associated professionals.

Lyonpo Tshering Wangchuk said that, although legislature is the lawmaking body, the law is deemed to be what the court interprets it to be. “The courts, therefore, have the responsibility to give purposive and rational interpretation,” he said.

The report also stated that, although a verdict should be passed within 108 days of filing a case in a court, delays in dispensation of justice occur due to the appeal and review system of the judiciary. “Given the four-tier structure of the judiciary, cases may take a minimum of three years for the final judgment, if appealed right up to the Supreme Court,” the report stated.

Some criminals, according to the report, are taking refuge in the procedure of the criminal justice system. “Implementation of His Majesty’s command, both in letter and spirit, will result in dispensation of justice without undue delays,” the report stated.

The report also stated that when the Army Welfare Project case was adjudicated, His Majesty commanded, “A person guilty of corruption must be punished without fear or favour and without delay. Justice must prevail always and without exception.”

Judiciary officials said that the courts normally give preference to criminal cases as per the civil and criminal procedure code.  They, however, said that courts around the country adjudicate the cases with equal opportunity given to the litigants. “We can’t separate the ACC cases unless there was a law, which deals with only corruption case,” a judiciary official said. “Therefore, it may take some time to pass the judgment.”

The report also highlighted the lack of the executive taking lead to implement court verdict, which has emerged as a serious challenge over the years.  Long after the judgments of the courts, restitution or recovery of proceeds of crime or administrative action still remains undone. “In the end, an entire cycle of the criminal justice system is rendered ineffective and investigation and prosecution redundant, wasting huge public resources,” the report stated.

The chief justice said that enforcement of judgment is the responsibility of the executive. “We’re here to seek the truth and render justice,” he said.

By Rinzin Wangchuk 

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