The argument of constitutionality must not be used as a shield to justify the institutional interest and create confusion for the public. The recent news titled “ACC’s role of both investigation and prosecution flawed” creates more confusion than clarity. The news even quotes a judicial official who states that Supreme Court decisions are “not legally binding.” Such a statement poses a serious threat to the rule of law and the constitution itself. Article 1 (11) of the Constitution makes it clear that once Supreme Court decides, it is final and binding. In rare instances, the Supreme Court in future may nullify or modify such decisions in a different case with no bearing earlier case.

The constitutionality of ACC’s prosecuting authority has been long settled in the several cases. Article 27 (1) defines that the primary responsibility of ACC is to “prevent and combat corruption.” Article 27(5) imposes the duty on the Office of the Attorney General (OAG) to prosecute corruption cases. Article 29 (1) and (8) states that the function of the OAG is to carry out legal matters assigned by the government including litigation and prosecution. Neither ACC nor OAG Act indicates that the entire prosecution power rest with the OAG alone.

Contrarily, the Constitution empowers the parliament to define the functions and authorities of both ACC and OAG through their statutes. Thus, foreseeing the importance of vigorous checks and balances between OAG and ACC, the Parliament authorized the ACC under very limited grounds with prosecuting authority in the interest of the nation.  

Article 10 (1) of the Constitution vest “all legislative powers” with the parliament. Thus, every law once passed by the Parliament is valid and constitutional as per Article 1(1). Only Supreme Court can declare any law as ultra vires or unconstitutional under Article 1(10) which is not the case in the present scenario.

The Supreme Court permitting the ACC to prosecute certain cases completely demystifies any doubt on the validity of Section 128 of the ACC Act. Further, Section 71 of the Royal Bhutan Police Act (RBP), 2009   authorizes the Police to prosecute any person for any criminal offence other than a misdemeanour and above. Article 28 (3), the primary responsibility of the police is to maintain law and order and prevention of crime, not prosecution. It is noteworthy that neither the OAG nor legal experts or judicial officials or any institution questioned such authority of police in prosecution in light of constitutionality though the police have broader powers compared to ACC for prosecution.

There are also similar examples in other democracies where one agency functions as both investigating and prosecuting institution. In the United States, the Federal Bureau of Investigation carries out a not only investigation but also carries out its prosecution. Similarly in India, the Central Bureau of Investigation has had the authority to prosecute cases since the as early 1980s. In Thailand, the National Anti-corruption Commission (NAAC) is given similar prosecution powers. All these institutions are like ACC with the primary function of investigation.

The senior officials including the chairperson or Commissions of ACC must refrain from appearing in the court during the judgment hearings in selected cases unless required by law. Otherwise, the public will see ACC as a biased institution with vengeance. Every case must be treated equally. The current issue is not of constitutionality but of institutional interest. The national interest must override every other interest.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.