The Press Release issued by the Royal Civil Service Commission and reversal of the decision of the Anti-corruption Commission is a cause of concern. This has also caught the attention of both social media and mainstream media. Numerous presumptions and theories came on this issue and seem to have caused confusion among the general public. Such decisions may ruin people’s confidence in the institution of civil service and also may encourage more public servants to commit corruption. Some feel RCSC’s decision rendered the nation’s anti-corruption laws toothless. Others feel other public institutions may come up with similar administrative rules and regulations in the interest of their institutions and may offer similar justifications. As a result, the fundamental objectives of the campaign against corruption may be defeated. This may also jeopardize any similar investigations and court proceedings from being free, fair and non-interference.
At a closer glance, RCSC remained silent on the actual contents of the Supreme Court decision cited in their press release. The public have no knowledge of what the court has decided. The Commission resorted to interpret Rule no. 19.10.1 and 19.10.5 of BCSR, 2018 elaborately to justify their decision. This interpretation seems incorrect in every legal sense. Firstly, BCSR, 2018 is mere a delegated legislation and has no authority of whatsoever to nullify provisions of the law made by the parliament. Secondly, BCSR itself categorically stated that it is promulgated under Article 26 of the Constitution and Civil Service Act. This means, every provision of BCSR originates from the Civil Service Act and applying these provisions to nullify Suspension Order issued under the ACC Act is nothing short of a fundamental error in interpretation of a law. Neither the ACC Act nor the Civil Service Act provides any provision authorizing RCSC to review suspension orders issued under the ACC Act.
Sections 167 (2) and (4) ACC Act, 2011 is unambiguous. These provisions provide that, once the suspension order is issued becomes mandatory and no other institution has discretionary power to revoke in any way. In fact, the suspension order not only extends to an investigation but also till the end of the outcome of final appeal. The parliamentary act manifested in the ACC Act is crystal and thus, suspension order is binding. Discretionary authority derived by RCSC in the present case deviates too far from the whole gamut of legal interpretation, validity and enforceability of laws enacted by the parliament. This also undermines parliamentary sovereignty. It would not wrong to presume that, ACC would have reviewed and considered all the circumstances before, they issued the suspension order. The only proper and legitimate way to challenge such order is through courts.
It is universally recognized that the constitution has an overriding effect on the statutes (parliamentary acts) and parliamentary acts have an overriding effect on rules and regulations (delegated legislation) made by the executive. However, in this case, delegated legislation tried overriding provisions of the parliamentary act. This contrives the universally recognized principle. In fact, to ensure this principle, Bhutan’s Constitution explicitly provides a clear separation of power among the legislature, the judiciary and the executive. Balancing the pros and cons of such decisions in a democracy will be the only means of nurturing and strengthening our unique democracy, envisioned by our farsighted and visionary monarchs.
Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Kuensel or JSW school of law.
This Article was published in Kuensel for Saturday Legal Column Series
At a closer glance, RCSC remained silent on the actual contents of the Supreme Court decision cited in their press release. The public have no knowledge of what the court has decided. The Commission resorted to interpret Rule no. 19.10.1 and 19.10.5 of BCSR, 2018 elaborately to justify their decision. This interpretation seems incorrect in every legal sense. Firstly, BCSR, 2018 is mere a delegated legislation and has no authority of whatsoever to nullify provisions of the law made by the parliament. Secondly, BCSR itself categorically stated that it is promulgated under Article 26 of the Constitution and Civil Service Act. This means, every provision of BCSR originates from the Civil Service Act and applying these provisions to nullify Suspension Order issued under the ACC Act is nothing short of a fundamental error in interpretation of a law. Neither the ACC Act nor the Civil Service Act provides any provision authorizing RCSC to review suspension orders issued under the ACC Act.
Sections 167 (2) and (4) ACC Act, 2011 is unambiguous. These provisions provide that, once the suspension order is issued becomes mandatory and no other institution has discretionary power to revoke in any way. In fact, the suspension order not only extends to an investigation but also till the end of the outcome of final appeal. The parliamentary act manifested in the ACC Act is crystal and thus, suspension order is binding. Discretionary authority derived by RCSC in the present case deviates too far from the whole gamut of legal interpretation, validity and enforceability of laws enacted by the parliament. This also undermines parliamentary sovereignty. It would not wrong to presume that, ACC would have reviewed and considered all the circumstances before, they issued the suspension order. The only proper and legitimate way to challenge such order is through courts.
It is universally recognized that the constitution has an overriding effect on the statutes (parliamentary acts) and parliamentary acts have an overriding effect on rules and regulations (delegated legislation) made by the executive. However, in this case, delegated legislation tried overriding provisions of the parliamentary act. This contrives the universally recognized principle. In fact, to ensure this principle, Bhutan’s Constitution explicitly provides a clear separation of power among the legislature, the judiciary and the executive. Balancing the pros and cons of such decisions in a democracy will be the only means of nurturing and strengthening our unique democracy, envisioned by our farsighted and visionary monarchs.
Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Kuensel or JSW school of law.
This Article was published in Kuensel for Saturday Legal Column Series
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