No mandate to give a legal opinion: ACC

Rinzin Wangchuk

The Anti-Corruption Commission has written back to the National Council (NC) stating that the commission has no mandate to give its legal opinion over the government nominating Tenzin Lekphel as the next Secretary General (SG) of BIMSTEC.

This comes after the NC requested the ACC officiating chairperson to validate any contravention of the provisions and sections of the Act.  The letter signed by NC Chairperson Tashi Dorji stated that the House of Review is of the view that the nomination of candidature for BIMSTEC SG could possibly contravene sections 54, 58 and 63 of the Anti-Corruption Act of Bhutan 2011 (ACAB).

Sections 54, 58 and 63 of the ACC Act pertain to active trading in influence, commission amounting to an abuse of functions and failure to declare a conflict of interest.

The NC expressed its concern over the government’s nomination while calling upon the government to urgently review the matter and rule out contravention of the specified sections or any other sections of the ACC Act before the commencement of the next BIMSTEC Ministerial meeting.

An ACC official said that the Office of the Attorney General (OAG) is the legal entity to provide legal opinion to the government.  “Therefore, we wrote to the NC on September 21 that the commission doesn’t have the mandate to do so,” the official said.

However, the commission forwarded NC’s letter to its complaint management division to register as a complaint. ACC officials said that once they registered the complaint in an online system, the complaint evaluation committee discusses and recommends to the commission.

The outcome would be, according to ACC officials, either investigate it, conduct a discreet inquiry, share for action or sensitisation and if there’s nothing illegal then drop it.

“In this particular issue, we will have to see whether it merits for investigation or not,” the official said.

The NC wrote to the Prime Minister and ACC on September 18 after the foreign ministry’s response on the government’s nomination of Bhutan’s candidate to the post failed to convince the NC.

Bhutan’s nomination has been endorsed by the foreign secretaries of the member states during the 21st session of the BIMSTEC Senior Officials Meeting on September 2 and the nomination has been submitted to the foreign ministers for their final approval.

There are no set criteria for the post of secretary general. As per Article 4(A) of the Memorandum of Association on the establishment of the BIMSTEC permanent secretariat, the SG shall be appointed by the BIMSTEC Ministerial Meeting upon nomination by a Party on the principle of alphabetical rotation.

However, for directors of the secretariat, Article 4 (B)(2) the Ministry of Foreign Affairs clearly states “the directors shall be at least at the rank of a counsellor or equivalent diplomatic status. In the event any party is unable to nominate a director from its foreign service, that party may make an appropriate nomination from its government service”.

Therefore, the nomination of the BIMSTEC SG is left to the prerogative of member states, according to the foreign ministry.

The Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) is a regional organisation established in 1997 and comprises of seven-member States- Bangladesh, Bhutan, India, Myanmar, Nepal, Sri Lanka and Thailand-  lying in the littoral and adjacent areas of the Bay of Bengal constituting a contiguous regional unity.

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