Kuensel news yesterday highlighted the gravity of territorial protection of state institutions such as the Anti-Corruption Commission and Office of the Attorney General, and news indicate that the tussle is due to Section 128 (3) of the ACC Act, 2016 where ACC is given authority of prosecution. However, both the institutions seem to have failed to recognize that the plausible conflicts may be due to differences in the threshold set by each law on prosecution. For example, Sections 30 and 31 of the OAG Act, set two conditions for the OAG to prosecute, the existence of “sufficient credible evidence to prove a case beyond reasonable doubt” and public interest. Further, subsequent sections detail what constitutes sufficient evidence and public interest. Among other considerations, the OAG must determine the admissibility of evidence.

Contrary to this, the ACC Act does not require as high of a threshold to prosecute. Indeed, Section 105 and 127 make it clear that anything that is obtained during the search or investigation becomes admissible evidence if evidence law permits. Moreover, Section 128 (1) of the ACC Act only requires that the Commission believe “there is sufficient evidence, and the prosecution would serve the interest of the public”. If that is the case, it merits prosecution. Specific outlines for what constitutes beyond reasonable doubt or admissibility of evidence are completely absent in the ACC Act. Further, Sections 30 to 40 of the OAG Act may contradict Section 96.2 of the Civil and Criminal Procedure Code, (CCPC), 2001 and Section 14 to 33 of the Evidence Act, 2005. Under the CCPC and the Evidence Act, the authority to determine whether “beyond a reasonable doubt is proven or admissibility of evidence solely rests with the Courts.”

Further, the ACC’s argument about prosecuting whenever they are dissatisfied with the OAG and the OAG asserting they are the only authorized prosecuting body deserve more deliberation since there are merits and demerits in both arguments. For example, while Article 20 Section 28 of the Constitution explicitly prohibits the Executive from issuing an executive order even during a state emergency, the government still issued directives, such as allowing importation of tobacco deduction on travel allowances for public service, contradicting the Tobacco Control Act and Pay Revision Act. Going by the notes from the Chairman of the Constitution Drafting Committee, there is no indication that the ACC can’t prosecute, or that the OAG is the sole prosecuting body. Further, Section 71 of the Royal Bhutan Police Act, 2009 gives absolute power to police “to prosecute any person for any criminal offence other than a misdemeanour and above,” compared to Section 128 (3) of the ACC Act, which specifies only on the ground of “delayed without a valid reason, manipulated or hampered by interference.” At the same time, the ACC must apply this as an exception rather than the norm. While the ACC may claim there is no conflict of interest, there is an inherent vested interest to prosecute once the Commission decides to forward the case to the OAG and the OAG refuses to prosecute, being under the same umbrella. Thus, in the interest of the public and nation, our institutions must avoid any form of tussle, and more so in territorial protection, as it seriously affects public service delivery and efficiency. At the same time, Parliament must reconcile such inconsistent, contradicting provisions to realign conflicting clauses, especially when the intention is for these provisions to be applied to the same thing.   

Sonam Tshering

Lawyer, Thimphu

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