… the ball is in ACC’s court now

Dechen Dolkar

Much to the relief of the PDP and its workers and supporters, the Office of Attorney General (OAG) has decided not to charge two former People’s Democratic Party (PDP) ministers, Dasho Dorji Choden and Namgay Dorji to court over the alleged abuse of function during their term in office.

The Anti-Corruption Commission (ACC), has charged three individuals, Dasho Dorji Choden, Namgay Dorji, and former MoWHS secretary, Phuntsho Wangdi for abuse of function in relation to contravening procurement rules and directly awarding construction work – Package XV of the Northern East-west Highway Project (NEHP) to Empire Construction resulting in a financial loss of Nu 15.861 million (M) to the government.

According to the OAG, Dasho Dorji Choden’s request for approval from the finance minister for the direct award of works does not constitute an abuse of her function.

The OAG is of the opinion that Dasho Dorji Choden acted in good faith with the sole intention of preventing the impending loss of Nu 22 million (M) per day to the nation.

The OAG’s analysis showed that without her intervention, the contractor would have taken them to court, leading to unfavourable outcomes for the nation.

The OAG also pointed out that considering the complexity of the situation at the site, she recommended the finance minister’s approval for a direct award to Empire Construction. This recommendation did not involve favouritism, nepotism and patronage, the OAG concluded.

Dasho Dorji Choden seeking approval from the finance minister, the OAG found, was in compliance with the Public Finance Act, which allows the finance minister to deviate from the financial rules and regulations in certain instances.Therefore, she did not violate any law because no existing law prohibited her from seeking approval from other ministers with the authority for such decisions.

The OAG was convinced that she did not act to obtain advantage for herself while her action seemed to benefit the Empire Construction. It wasn’t an advantage given by her personally. She sought the approval of the finance minister and had valid justifications for doing so.

The intent, as per the OAG, was to prevent the likely-consuming litigation and ensuing loss to the nation by compensating Empire Construction for the premature termination of the Yurmu Project.

According to the OAG’s analysis and recommendation, former finance minister Namgay Dorji’s actions were not driven by an intention to abuse his function and that he acted in good faith to prevent an impending loss of Nu 22M per day to the nation.

The OAG concluded that even if the contract was terminated without his approval, the Ministry of Works and Human Settlement (MoWHS) would not have been in a position to compensate Empire Construction. “This would have led to time-intensive litigation and the resulting loss. His sole intention was to avoid these consequences and put an end to the risks posed by the contractor’s work to commuters and residents of the site.”

The minister’s action of approving the direct award, the OAG found, is not in violation of the laws.  Despite the work at the Nobding-Dundungnyelsa stretch not meeting the stipulations of the Direct Award set by the PR 2012, the defendant, as Finance Minister, had the authority under the Public Finance Act to deviate from these requirements in certain circumstances for a valid reason.

According to the OAG, the charge for Phuntsho Wangdi was dropped for the same reasons as Dasho Dorji Choden’s.

Meanwhile, the party executive said that the two former ministers have received their Integrity Assessment Certificate from the ACC and also obtained audit clearance from the Royal Audit Authority.

The ACC does not issue an integrity assessment certificate to aspiring candidates, if the candidate is convicted or facing felony charges.