This Article was published in Kuensel for Saturday Legal Column Series
The recent news of tussle between Office of the Attorney General and the Anti-Corruption Commission on investigation and prosecution are of national concern. It must be reminded that, ACC and OAG are both established under the Constitution but with different objectives and purpose and also to act as check and balance. If both the institutions are granted same authority, of prosecution and investigation, then creation of separate institutions does not arise. Article 27 of the Constitution provides primary function of ACC to “prevent and combat corruption” among others, as opposed to Article 29, where the OAG is mandated to “institute, initiate or withdraw any case in accordance with law”. Manifesting the objectives of Article 27 Section 3 (a) (iii) of the ACC Act authorizes the ACC to “investigate corruption” and Sections 81-159 provides detailed investigation processes and powers.
Similarly, the objectives of Article 29 of the Constitution are well manifested under Chapter 3 of the OAG Act, 2011. The OAG Act “central litigation and prosecuting agency of the government”. Like ACC, OAG is empowered with elaborate authority to prosecution under Sections 11- 49. Section 31 mandates OAG to prosecute, after fulfilling two testes in the criminal cases. The evidentiary test requires a “sufficient credible evidence to prove beyond reasonable doubt” and public interest test requires that prosecution is in the best interest of the public. Further, Section 37 requires, OAG to consider prosecution only “if the evidence sufficiently identifies a person or institutions responsible for the crime”.
However, there are few exceptions under both laws which seems to have created the current tussle between these two institutions. Section 20 of the OAG Act states that, the prosecution of OAG should “not prejudice the powers of the prosecution granted to any other agency through their respective Acts” which implies that, other agencies may also have prosecuting authorities. Reading Section 20 of OAG Act with Section 128 (3) of the ACC Act, ACC is empowered with prosecution authority but only under three very restrictive circumstances, “delayed without valid reason, manipulated or hampered by interference”. Thus, authority of ACC to prosecute is very restrictive. The terms, “manipulated or hampered by interference” are not defined. Therefore, ACC must exercise the powers granted under Section 128(3) with a caveat. An OAG Official was quoted by Kuensel that, OAG can investigate “when the facts are disconnected, liabilities misapplied and evidence we received are of poor quality”. This is technically not correct. Section 23 authorizes OAG to obtain “additional information or evidence” only once the prosecution has been initiated in some instances. Mere obtaining of information or evidence does not necessarily constitute investigation. In fact, Article 27(5) specifically requires OAG to prosecute on the basis of the findings of ACC. This means, OAG has no power to investigate.
Therefore, dangers of ACC prosecuting more and authorizing OAG in investigation would only create more confusion, duplicate agency roles. This may also contravene the constitutional mandates and override national interest with their institutional ego and vested interests. Laws must be interpreted as a whole and in a harmonious manner and not in a restrictive manner as to meet one’s own interest and deviate from their primary functions.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel or JSW School of Law.u
The recent news of tussle between Office of the Attorney General and the Anti-Corruption Commission on investigation and prosecution are of national concern. It must be reminded that, ACC and OAG are both established under the Constitution but with different objectives and purpose and also to act as check and balance. If both the institutions are granted same authority, of prosecution and investigation, then creation of separate institutions does not arise. Article 27 of the Constitution provides primary function of ACC to “prevent and combat corruption” among others, as opposed to Article 29, where the OAG is mandated to “institute, initiate or withdraw any case in accordance with law”. Manifesting the objectives of Article 27 Section 3 (a) (iii) of the ACC Act authorizes the ACC to “investigate corruption” and Sections 81-159 provides detailed investigation processes and powers.
Similarly, the objectives of Article 29 of the Constitution are well manifested under Chapter 3 of the OAG Act, 2011. The OAG Act “central litigation and prosecuting agency of the government”. Like ACC, OAG is empowered with elaborate authority to prosecution under Sections 11- 49. Section 31 mandates OAG to prosecute, after fulfilling two testes in the criminal cases. The evidentiary test requires a “sufficient credible evidence to prove beyond reasonable doubt” and public interest test requires that prosecution is in the best interest of the public. Further, Section 37 requires, OAG to consider prosecution only “if the evidence sufficiently identifies a person or institutions responsible for the crime”.
However, there are few exceptions under both laws which seems to have created the current tussle between these two institutions. Section 20 of the OAG Act states that, the prosecution of OAG should “not prejudice the powers of the prosecution granted to any other agency through their respective Acts” which implies that, other agencies may also have prosecuting authorities. Reading Section 20 of OAG Act with Section 128 (3) of the ACC Act, ACC is empowered with prosecution authority but only under three very restrictive circumstances, “delayed without valid reason, manipulated or hampered by interference”. Thus, authority of ACC to prosecute is very restrictive. The terms, “manipulated or hampered by interference” are not defined. Therefore, ACC must exercise the powers granted under Section 128(3) with a caveat. An OAG Official was quoted by Kuensel that, OAG can investigate “when the facts are disconnected, liabilities misapplied and evidence we received are of poor quality”. This is technically not correct. Section 23 authorizes OAG to obtain “additional information or evidence” only once the prosecution has been initiated in some instances. Mere obtaining of information or evidence does not necessarily constitute investigation. In fact, Article 27(5) specifically requires OAG to prosecute on the basis of the findings of ACC. This means, OAG has no power to investigate.
Therefore, dangers of ACC prosecuting more and authorizing OAG in investigation would only create more confusion, duplicate agency roles. This may also contravene the constitutional mandates and override national interest with their institutional ego and vested interests. Laws must be interpreted as a whole and in a harmonious manner and not in a restrictive manner as to meet one’s own interest and deviate from their primary functions.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel or JSW School of Law.u
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