… however, it is subject to acceptance by NC members

Rinzin Wangchuk

Issues on granting organisational structure and personnel authority to the Anti-Corruption Commission (ACC) and major provisions left out by National Assembly (NA) are expected to dominate the discussion at the House of Review today when it deliberates the Anti-Corruption (Amendment) Bill of Bhutan 2021, according to members of Good Governance Committee (GGC).

GGC’s chairperson, MP Surjaman Thapa introduced the Bill to the House on November 26 and proposed about 61 sections of Anti-Corruption Act of Bhutan (ACAB) 2011 to be amended.

National Assembly (NA) passed the Bill in June this year with amendment to 53 provisions.

However, NA didn’t deliberate or endorse eight proposed amendments that the ACC submitted. The rejected proposals were ACC’s organisational structure and human resource independence; abuse of function; penalty for failure to protect public property, revenue and false claims by public servants; obstruction of justice; prosecution referral; liability of legal persons; and suspension of public servants.

GGC members said that the committee had considered major sections left out by the NA for deliberations at the Council.  “However, we are yet to see how other members would react to the committee’s proposal,” one of the GGC members, Bumthang MP Nima said.

Another GGC member, Trashigang MP Lhatu said that the committee also retained most of the provisions the NA amended with some minor changes, including the impugned section 128(3) of the ACAB.

MP Lhatu said that the committee expects some debates on ACC’s proposal to provide for the Commission to independently determine its organizational structure and regulate appointment, management and dismissal of its staff.

ACC’s proposals

ACC officials said that the commission proposed to amend Sections 8 and 28 of ACAB to the organisational structure, functional and operational strategy, in which human resources is a key component. “This is of vital importance for ACC to step up to the challenges and opportunities of the hour and truly fulfil its mandate. It is also right time to effect the changes to avoid the inevitable loss of time and associated costs,” an ACC official said.

The other proposal the commission submitted was on obstruction of justice to increase from petty misdemeanor to a felony of the fourth degree. It is specifically proposed that the offences under section 113 (1b) pertaining to assaults, obstructs, hinders or delays lawful duty of the Commission and (j) interferes with, puts fear into, threatens or abducts or attempts to do so be amended.

The existing grading for an offence against investigating/ACC officer, including abduction, according to ACC, is very low to have a deterrent effect. “This would also be in alignment with the penalty set out in the Penal Code for abduction.”

ACC officials said that it is proposed to insert a new clause specifically to provide for making false statement or causing to make false statement to the Commission or lawful authority as an offence (a misdemeanour) as such acts not only interferes with the criminal procedures, often frustrating the investigation process or rendering it futile, but also undermines the criminal justice system.

ACC also proposed to amend the penalty, in Sections 61 and 62, for failure to protect public property, revenue or false claims by public servants from fine or value-based sentencing to misdemeanour or value-based sentencing.

“The intent is to increase the gravity of such acts and the penalties thereof for deterrent effect besides bringing uniformity in the quantum of sentencing with other acts of corruption,” officials said. “The amendment would also decrease the discretionary space for sentencing thereby reducing the disparity of the penalties for similar offences by different judges”.

The commission also proposed to insert a new provision for a court of law to consider the implementation of effective anti-corruption measures as a mitigating or otherwise as an aggravating factor, in holding legal accountability of a legal person. ACC stated that it would serve as an incentive for agencies to initiate and implement anti-corruption measures proactively as it would be taken into account in case the agency faces any legal ramification. “The mitigating aspect could create space for more initiative and encourage agencies to innovate while at the same time putting internal control mechanisms in place to ensure the best public interest,” it stated.

Another new sub-section that the ACC proposed is to enable the commission to suspend a public servant charged with a corrupt offense, till the outcome of any appeals, if the charges against such public servant relate to his or her current official position or office.

ACC stated that the Supreme Court had ruled that the suspension of public servants should be done by the agency concerned once the process of investigation is completed and charges pressed. “However, the commission feels the need to provide for exceptions if there is a greater risk of the malfeasance continuing when a public servant charged with an offence continues to serve in the same office where he/she had committed the offence.”

MP Lhatu said that the committee also expected debates on the prosecution role allowed by the ACAB’s Section 128(3). “There was some disagreement among the committee members to repeal or retain the section that brings a check and balance between ACC and Office of the Attorney General,” he said.

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 valid reasons, manipulated or hampered by interference. “However, the committee like NA also dropped the commission’s proposal to insert an additional section to the exceptions where ACC proposed to prosecute cases if the OAG returns, withdraws or does not appeal a case without valid reason,” MP Lhatu said.

ACC’s chairperson Deki Pema in her earlier interview with Kuensel said that the commission proposed the new insertion as a check and balance measure although this may be used in the rarest of rare cases.

Harmonisation of  penalty provisions 

The bulk of the amendments, according to NC’s GGC members, passed by NA were the penal provisions amended to align with the Penal Code.

ACC officials said that the Penal Code sets the limit on the value-based sentencing at the minimum wage rate for 60 years or more whereas the ACAB provides for the total amount of the minimum wage at the time of the crime for a period of 35 years or more.

“While appreciating the effort to harmonise the laws, it has to be noted that the implication is that for a person to be convicted for a felony of the second degree, the pecuniary amount involved in the commission of an offence must be equal to or more than the minimum wage for 60 years (Nu 2,737,500 or more) under the amendment as opposed to 35 years (Nu 1,596,875 or more) under the existing ACAB provisions,” ACC official said. “This requirement to meet the increased pecuniary threshold bears negative consequences on the effort to make corruption a risky and costly offence as the clement provision bears no real legal deterrence.”

Edited by Tshering Palden