The appeal by the Office of Attorney General against the judgment issued by the Haa court in the Lhakhang Karpo case has brought some important issues that are drawing attention not only of the public, but of institutions as well.
The OAG has decided to let the Anti Corruption Commission to fight the case once it reaches the high court. It was an agreement decided in the best interest of the OAG and the commission. The commission felt there were enough grounds of appeal, which the OAG didn’t. Both institutions saw that there would be complications if the OAG went ahead prosecuting the three officials, including a cabinet minister and lost the case. This is besides how the OAG handles the case.
The judiciary, it seems is not comfortable with the ACC taking over the charge. The uneasiness arise from the fact that a precedence could be set where investigating agencies could also prosecute cases even with an established prosecuting arm of the government.
While who takes up the case will be known soon, it is good to see our institutions engaged in clarifying issues. We are in the second term of a parliamentary democracy with constitutional offices established to provide check and balance. What we can do with even today is clarity so that we can move ahead with confidence.
There is some light shed at the right time. The Attorney General is a political appointee. Not to deride the professionalism of the OAG lawyers, but lawyers fighting a case on the advice of a political appointee, could be interpreted in so many ways, especially if they lose.
We are still in a period of change and will see complications on the way. As we discuss this issue, it is better if all issues are resolved before we move on. OAG will have no problem prosecuting on behalf of the government. But prosecuting a member of the government, especially when cabinet ministers are involved, becomes complex.
The independence and the mandate of the judiciary will not be questioned, but cases are won or lost on how it is fought in the courts.
Beyond the case, a lot of clarity is coming out. The Supreme Court, the interpreter of the Constitution spelled out that the Attorney General is a political appointee. They are, according to the former Supreme Court Chief Justice, “to serve at the pleasure of the Prime Minister and resigns when the Prime Minister vacates the office.”
Concerns of favouritism were expressed when the term of the Attorney General was discussed in the Parliament, which recently endorsed the Office of the Attorney General’s Bill. Favouring the government may be a common practice in other democracies, but we have trust in our institutions and expect the Attorney General to serve in the interest of the nation and not only the government.
But having clarity would solve a lot of problems. We can put an attorney general in an awkward position for having to represent both the government and then the opposition if it becomes the next government.