The authorised absence’s dilemma

The case of foreign minister’s absence from office has raised several questions on how long a MP can be on leave

Politics: Should foreign minister Rinzin Dorje continue to defend himself in the High Court, he will, as a Member of the Parliament (MP) seek leave of absence from the National Assembly (NA) Speaker.

Prime Minister Tshering Tobgay on July 20 proposed Bongo-Chapcha constituency’s representative Dawa Gyaltshen as the home minister and home minister Damcho Dorji to be transferred as the foreign minister. The proposal is subject to His Majesty The King’s approval.

Speaker Jigme Zangpo said that the prime minister approves leave for Cabinet ministers while leave for MPs is the Speaker’s prerogative. “While lyonpo Rinzin Dorje is a Cabinet minister, he is also an MP, so during the parliamentary sessions, he applies for a leave of absence to the Speaker,” the Speaker said.

What the law states

On the disqualification of the members, one of the clauses of the NA Act states that a member will be disqualified if he or she fails to give attendance in the house for more than one fourth of the number of days in a session unless excused on that behalf by the permission of the house.

The decision of the House to disqualify a member shall require a two-third majority of the members present.

In lyonpo Rinzin Dorje’s case, as he was on authorised absence since January 23 this year, he missed the summer session of the Parliament from May 8 to June 16. The minister was charged for alleged embezzlement of public property and misuse of functions in connection with the lhakhang Karpo case in Haa where he served as the former dzongdag. The Haa district court acquitted him of all charges on June 23. The case is now in the High Court where a show cause hearing will be held on Monday.

“The foreign minister will serve as an MP provided that MP Dawa Gyaltshen’s ministerial position is confirmed and the foreign minister is not convicted by the High Court,” Speaker Jigme Zangpo said.

If the foreign minister defends the case himself at the High Court, he could be on leave of absence again, this time granted by the Speaker, which means that he is likely to miss the winter session of the Parliament.

However, NA Act or regulations don’t specify the duration for MPs to be on leave of absence for any reasons. Questions are now raised on how long a constituency can go unrepresented in the Parliament.

During the past government’s term, the foreign minister’s post had remained vacant for almost three years. Former foreign minister Ugyen Tshering represented the North Thimphu constituency.

On lyonpo Rinzin Dorje likely to miss the winter session of the Parliament, Speaker Jigme Zangpo said that this would depend on the decision of the due course of law.

“We thought that the acquittal would end but now that the case is with the High Court, we don’t know how long it would take,” he said. “Which is why the PM could have taken the unfortunate decision.”

The term “authorised absence”

None of the legal documents or regulations mentions the term-authorised absence. It originated from Royal Civil Service Commission (RCSC) after the government surrendered the three secretaries to the government for allegedly exceeding their mandates and not keeping the Prime Minister informed of committee of secretaries’ discussions and decisions.

Following an investigation, the commission placed the three secretaries under “authorised absence,” until their reassignment pending an investigation, which the government had asked the Anti-Corruption Commission (ACC) to conduct into the BHEL issue.

Around the same time, the foreign minister was also granted authorised absence. In one of the meet-the-press sessions, prime minister Tshering Tobgay said that there was no provision in the Constitution or any law that states that a serving minister must either resign, be suspended or be granted authorised absence for the duration of the case. This was done so, lyonchoen said to prevent controversy and conflict of interest.

RCSC chairperson Karma Tshiteem said that as highlighted in the decision on the case of the three secretaries, in line with the powers of the commission as provided in the Civil Service Act, the commission has the authority to make rules and regulations to effect the provisions of the Act.

“We stated clearly in our decision that “authorised absence” was necessary for situations like the case of the three secretaries where RCSC has to conduct investigations,” he said. “Since investigations should precede any action on officials, we felt that until the investigation is conducted, “authorised absence” was a fairer way to treat our topmost officials while preserving harmony in the workplace.”

Karma Tshiteem said that the term “authorised absence” would be included in the revised Bhutan Civil Service regulations, which the commission hopes to do next year. “RCSC’s timeframe for authorised absence will be based on the circumstances and merit of the case,” he said.

On whether there is a need for similar provisions to be included in the NA Act or regulations for MPs, Speaker Jigme Zangpo said the motion to do so should come from the people or MPs themselves.

In doing so, the Speaker said that the Entitlement Act should be amended as well. “But we can’t amend or frame laws based on an individual case,” he said, adding that as a new democracy, things were still emerging.

Judiciary’s interpretation

Should the Supreme Court’s (SC) order issued in July 2013 on the Gyalpoizhing land case be invoked, the foreign minister should not have been granted authorised absence, which could also be seen as “suspension” in the eyes of the public.

Lyonpo Rinzin Dorje was granted authorised absence while the two civil servants charged under the same case were suspended in February this year after ACC wrote to the Haa dzongdag.

Section 167 of the ACC Act states that suspension during the period of investigation may be justified where probable cause exists to ensure that the official does not hamper investigation, destroy relevant evidence or continue to perpetrate the offence or misuse.

According to the SC’s interpretation then, no public servant or elected official be suspended beyond a period of 12 months or three months respectively for the conduct of investigation, unilaterally by the ACC, to avoid due process, equal protection and presumption of innocence issues.

It must be ensured at all times, the order stated, that the exchequer is not burdened with having to pay subsistence allowance with the public official doing no beneficial work for the government.

However, once charges are filed, suspension must be based on whether the public servant while in office has the opportunity or is in a position to impede or frustrate prosecution or commit further acts of malfeasance or both.

Once charges are filed, suspension must also be optional at the discretion of the competent authority and not mandatory or for an indefinite period.

However, where a public official charged and prosecuted by the OAG or ACC in a court of law is not suspended, then the order states that the public official must be represented by a legal counsel of his choosing and may appear in court only as a witness or when summoned by the court at his own expense.

The SC also clarified that an elected public official being suspended for acts committed prior to their election to the current position will be detrimental to public welfare. “It is the basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice,” the order stated.

For misfeasance or malfeasance, the order stated that any of the elected members could be proceeded against administratively or criminally.

“If elected officials are acquitted, they are not only victim, there is injustice inflicted likewise on the people of their constituency who would have been deprived of the services of the minister they had elected to serve as member of parliament,” the SC order stated.

Also, there is no danger of the minister interfering in the trial since the offences are not connected to the official position of the public servant as minister. It pertains to the period when he served as the Haa dzongdag.

The SC had recommended that the issue of suspension be revisited and guidelines be prepared either as a law or rule and make suspension discretionary and not automatic once charges are filed.

The Office of the Prime Minister didn’t respond to the questions Kuensel had sent on the issue.

Kinga Dema & Rinzin Wangchuk

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply