Questions are being raised about the way those involved in the case are dealt with
Corruption: The Haa dzongkhag human resource committee yesterday suspended budget officer, Wangchuk Tshering, and district engineer, Tashi Gyeltshen, for their alleged involvement in the lhakhang Karpo corruption case.
The committee’s decision was based on the order, the Anti Corruption Commission’s (ACC) issued on January 26, and their suspension comes with immediate effect, according to the orders issued.
While the civil servants, as per civil service rules, will be paid a subsistence allowance of 50 percent of their basic pay during their suspension, the foreign minister, who is also charged with alleged corruption, was granted authorised absence with benefits.
Tashi Gyeltshen was the project engineer and Wangchuk Tshering was the project manager for the lhakhang Karpo conservation project.
Both were charged with allegedly accepting bribes, embezzlement and abuse of functions. The foreign minister, who was the then Haa dzongda, is charged with abuse of functions in three separate cases.
The case, which the Office of the Attorney General (OAG) registered with Haa district court on January 23, begins on February 9. “We’ve informed the parties to report before the court on February 9 for preliminary hearings,” district court judge Duba Drukpa said.
Suspension vs Authorised absence
However, even before it reached the court, the case has already sparked discussions on the issue of suspension. Observers said that, based on the current positions of the three individuals involved, the alleged culprits were meted with two kinds of treatment, even though the alleged corrupt activities were committed when all three were civil servants.
Foreign minister Rinzin Dorje was granted authorised absence, while the two civil servants were suspended.
Those closely following the case ask if there was a separate law for civil servants and elected representatives, when it came to suspension, even though all are supposed to be equal before the law.
Article 7 Section 15 of the Constitution states “All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status.”
This means that all persons and things similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed.
Laws and rules
But confusion cropped up with different institutions and agencies being empowered by their own ambiguous acts and rules. For instance, the Anti Corruption Act, 2011 empowers the commission to suspend a public servant, who is charged with an offence, from the date of the charge till pending the outcome of any appeal. Accordingly, ACC writes to the competent authority to suspend public or civil servants once the case is registered in the court.
The Royal Civil Service Commission (RCSC) or agency concerned suspends a civil servant, who is charged with dishonesty, grave misconduct, neglect of duty, or abuse of official authority and power, as per the Bhutan civil service rules and regulations 2012.
This confusion was aggravated after RCSC coined a bureaucratic jargon, ‘authorised absence’, when the government surrendered three secretaries to the commission. The government later borrowed it in deciding the foreign minister’s case.
RCSC officials said suspension was different from authorised absence and while the term doesn’t explicitly feature in the civil service rules or act, it’s ‘indirectly implied’ in one of the leave provisions.
The commission put the three government secretaries on authorised absence, since their case was under investigation with the commission, unlike the lhakhang Karpo case, which has reached the court.
A judiciary official described this newfound arrangement as a “political convenience” to allow the government a “high moral ground”, since there are no similar cases or a precedent set.
Supreme court’s guidelines ignored
Some ACC officials pointed out that the Supreme Court’s (SC) guideline on suspension issued in 2013 after the Gyalpoizhing land allotment case also aggravated the confusion.
The SC’s guideline states that suspension of the person investigated might be necessary during the course of the investigation to ensure noninterference and prevent possible destruction of evidence or continuance of malfeasance by an individual while in office.
“However, it is not necessary to suspend public or civil servants once the case was filed before the court,” a SC official said. This, he said, was to ensure at all times that the exchequer is not burdened in having to pay subsistence allowance, with the public official doing no beneficial work for the government.
The guideline stated that once charges were filed, suspension must be based on whether the public servant while in office had the opportunity or was in a position to impede or frustrate prosecution or commit further acts of malfeasance or both.
“Bhutan has a very small proportion of qualified people and a small bureaucracy, in which automatic suspension may not be efficient and pertinent in the public and national interest,” the guideline stated.
However, SC officials said that, at the conclusion of a trial, if a public servant is found guilty and sentenced, then the suspension of a public servant must be automatic.
The SC, being the final authority on its interpretation, issued an order on July 17, 2013 to revisit the issue related to suspension by Parliament. “However, both the parliament and the executive haven’t complied with the court order,” SC officials said. “It’s the mandate of the Parliament to enact laws, for the executive to implement it, and the judiciary to interpret the laws.”
The SC order stated that the simplistic approach to suspension to correct the mischief that officials were not being suspended by agencies, as incorporated in the ACC Act, was ill conceived and illogical, as it did not consider all the factors associated with suspension.
“In the relevant provision “shall” must be replaced with “may”, making suspension discretionary and not automatic once charges are filed,” it stated.
In cases, where the official concerned has engaged in activities prejudicial to the interests on the “security and sovereignty of the nation”, or is charged for “an offence of or above felony of the second degree,’’ suspension then must be automatic.
Going by the SC guideline, the minister charged in the lhakhang Karpo case will have to seek his own private jabmi (legal counsellor) to defend him in court, and can appear in court only as a witness, or if summoned by the court.
“If the minister desires to attend court, he must do so at his own expense. The resources of the state cannot be used to attend court in the matter related to adjudication of a case charged in an individual capacity with no correlation to official function,” the guideline stated.
Meanwhile, ACC this week also suspended trade and CDB licenses of four business entities – two in Haa and another two in Paro in connection with the lhakhang Karpo construction project.