Over 415 cases remain pending with the OAG

Ball currently in the OAG’s Court

Coming close on the heels of the 2023 elections, a media report that the Anti Corruption Commission (ACC) has forwarded a case on alleged misuse of power by former ministers, Lyonpo Dasho Dorji Choden and Lyonpo Namgay Dorji of the Peoples’ Democratic Party (PDP) when in power, has led to the PDP issuing a press release on the case and Dasho Dorji Choden making her stand on Bhutan Broadcasting Service (BBS).  While time will determine what will happen, the case currently lies in the Office of the Attorney General (OAG).

According to reports, the Royal Audit Authority (RAA) presented the audit observation in 2019 to the ACC, which recently submitted the report to the OAG.

The people’s eyes are now on the OAG especially because of Article 29, Section 4 of the Constitution which says; “The Attorney General (AG) shall have the power to institute, initiate, or withdraw any case in accordance with the law.” “The Constitution of Bhutan, Principles, and Philosophies,” written by former chief justice and chairman of the Constitution’s drafting committee, Lyonpo Sonam Tobgye clarifies this section.

The book outlines that the AG is constitutionally enabled to carry out the responsibilities of civil and criminal prosecutions and related investigations and proceedings independent of Cabinet influence or any partisan political pressure. “The AG’s responsibility for individual criminal prosecution must be undertaken and seen to be undertaken under strictly objective and legal criteria, free of any political considerations. Whether to initiate or stay a criminal proceeding is not an issue of government policy.” A key responsibility of the AG in conducting criminal prosecutions is to represent the public interest, which includes not only the community as a whole but the victim and also the accused. The AG has the power to institute or withdraw any case according to law, “in the interest of the Government and the welfare of the people.”

According to Article 29, Section 1, of the Constitution, “There shall be an Office of the Attorney General, which shall be autonomous, to carry out the responsibilities within the domain and authority of the Government and such other legal matters as may be entrusted to the office.” While the AG is called as a political appointee and legal adviser to the prime minister and the government, according to “The Constitution of Bhutan, Principles and Philosophies,” “the OAG is conferred an autonomous status to ensure its professionalism and avoid engagement in any personal or political vendetta.”

Meanwhile, Section 179 (b), Chapter 10, Qualifications and Disqualifications for candidates, Election Act of Kingdom of Bhutan, 2008, states, “A person shall be disqualified as a candidate or a member holding an elective office under the Constitution if he/she: Has been found guilty of corrupt practice at an election.”

Generally, political corruption refers to a form of corruption that occurs when individuals who hold political power and have the authority to make and implement laws use their positions to maintain their wealth and status, as well as to make decisions that benefit private interests. This type of corruption often involves the misuse of power and has serious implications, resulting in the inappropriate use of resources and influencing how decisions are made.

Thus, if the OAG prosecutes a case and those accused are found guilty, they would be disqualified.

Another aspect of this case concerns the ACC’s Integrity Vetting Rules (IVR) 2022, which is meant to promote and mainstream integrity in the public and private sectors. It applies to the selection, recruitment, promotion, nomination, appointment, or selection of a person to public office or in the award of a public contract or entering a public contractual relationship. As per the IVR, ACC would provide four different types of IVR – no record, provisional record, record and adverse record, before a final decision is taken on any matter (recruitment, promotion, nomination, appointment, or award of public contract). These reports will assist an agency in making an informed decision based on the facts and evidence, thereby bringing in more transparency and accountability in the system.

However, for political candidates, there are only two categories; “No Adverse Record” and “Adverse Record,” which was done based on the requirement of ECB and the Election Law. In order to uphold the universal principle of “Innocent until proven guilty”, the election law does not bar anyone from participation in the election, unless there is a criminal conviction against an individual or an individual has been dismissed or discharged from his official duty or if a criminal case of felony is being charged against an individual.

However, should there be any information recorded against a person in any of the other three categories now subsumed under “No Adverse Record”, ACC would still reflect it in the IVR, although it may not disqualify the particular individual (s) from participating in the election, it is up to the voters to make an informed choice.

However, if the vetting is negative (Adverse Record) for members, it would deter them from participating in the elections. 

Meanwhile, the PDP issued a clarification on September 4th in response to the report forwarded by the ACC to the OAG. A part of the press release says that the PDP acknowledges and respects the findings of the relevant agencies to forward the case to the Office of the Attorney General.

“However, it is surprising that a matter from 2016 is actively being pursued on the eve of the election. It is more surprising that the Audit Memos were not brought to the knowledge of the individual, depriving them of an opportunity to clarify and justify their actions. Therefore, the PDP believes the action is politically motivated to damage the reputation of the Party.”

On political motivation, a political observer close to the government said even the government did not know about the case until it was reported in the media. He said that the PDP may not be alluding it to the DNT and that the Prime Minister (PM) would not indulge in such kind of political vendetta.

A private entrepreneur and aspiring politician said that political parties will feel and say that cases are politically motivated, when “it comes out when elections are near.” “But if one is innocent, there is no need to worry. The ACC takes time to investigate and there may also be other reasons for delay in this case. Now it is the responsibility of the OAG, whether to initiate or withdraw the case. Justice will triumph ultimately,” he said.  

Meanwhile, the PDP has stated that awarding the contract for Package XV of the Northern East-west Highway Project (NEHP) to Empire Construction was a strategic decision aimed at preventing delays and economic losses that could have impacted the country. “The case pertains to widening a rocky road stretch critical for completing the MHPA (Mangdechhu Hydropower Project Authority). Due to delays and risks, it was decided, through joint meetings involving relevant stakeholders, to make the contractor surrender the contract and accept compensatory work to prevent delays and economic losses to the nation and risk to people’s lives.” It stated that the decision was made to prevent delays and thus a potential loss of 22 millions per day from MHPA power generation.

Meanwhile, in her clarification through national television, former minister, Dasho Dorji Choden said, “There were no corrupt practices  involved, and I take pride in the fact that we made a bold decision in the best interest of our nation, ultimately saving a substantial amount of money on the Mangdechhu project.”

Business Bhutan could not contact any official from the OAG and ACC for further clarifications.