The war between the two constitutional bodies: Whether constitutional or not

The interesting war between the two constitutional bodies on constitutionality of their functions are worth to be examined as lawyers in the country.

My basic analysis is that OAG's argument that the Article 29(5)  of the Constitution which states that " The Attorney General shall have the power to institute, initiate, or withdraw any case in accordance with the law" gives power to OAG for this purpose as only provided under the law. Thus, OAG's very power of institution of suit relies on the law made by the parliament  which basically means it is an exceptional clause to the power of the OAG. This means, this Article seems to me that instead of empowering the OAG, the Article limits the power of OAG since it states that OAG can only prosecute in accordance with the laws made by the parliament. This also means, that if parliament decides to empower other agencies in prosecution, it can do so, as long as there is law made by the parliament.

Another interesting thing is that in fact for me, Section 128(2) which states "The Office of the Attorney General shall undertake
prosecution of persons on the basis of the findings
of the Commission for adjudication by a Court." makes the OAG to prosecute mandatory once the ACC sends the findings to the OAG  which means OAG does not seem have the choice to reject or refuse prosecution. The subsequent sub-section 128(3) which states "(3) Notwithstanding subsection (2), the Commission may carry out its own prosecution of a person
charged with an offence under this Act or take over
the prosecution process from the Office of Attorney
General when the case is:
  (a) Delayed without a valid reason;
(b) Manipulated; or
(c) Hampered by interference"

Thus,this section further reduces OAG's power by empowering the ACC to prosecute on any of the three grounds.
Further Section 16 of OAG Act 2015 states that "16. The Office shall prosecute criminal cases in accordance
with the provisions of this Act when referred to it by any
agency of the Government under the relevant laws" which means OAG is required to prosecute when referred by the other agencies.
However, the Section 29, 30 and 31 of the OAG Act grants the discretionary power subject to conditions laid down to prosecute or not to prosecute the cases.
Now reading the Article 29(5), 128(2) & (3), the Section 128 (2) mandates the OAG to mandatory to prosecute while Section 128(3) provides the power to ACC to prosecute under three conditions, I personally feel that both OAG Act and ACC Act are fulfilling the conditions of the Article 29(5) hence should be both constitutional as long as prosecution is carried within the threshold provided under these laws.
 The News paper reports 

The war between the two constitutional bodies: Whether constitutional or not

The interesting war between the two constitutional bodies on constitutionality of their functions are worth to be examined as lawyers in the country.

The right of media should be for justice, not media trial.

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker." Frederick Douglass, 1860

The story on judiciary untouchable by media is a dangerous statement in the democracy and if true is not only against the freedom of press or media but also against the basic principles of fundamental rights of individual citizens, the right to information, right to know and freedom of speech and expression.

It is therefore, important to reflect few invisible lines between the freedom of media and independence of judiciary in ensuring a free, fair and unbiased justice to the litigants.
The article 7 ensures that there is a freedom of press, radio, television and other forms of media. And Section 4 of the Civil and Criminal Procedure Code of Bhutan 2001 gives the right to open trial of every case. This means, during the trial, media has access to all proceedings or for that matter any public interest.
However, equally important are the right to privacy, reputation, gender sensitivity, national interest and free and fair administration of justice. Therefore, the same Article 7 and Section 4 of the CCPC also provides exceptions to the above rights to protect the individual rights and non-interference in the administration of justice.
In short, neither the media nor the judiciary enjoys absolute rights rather both while no doubt has number of rights but also must exercise certain restrains.
The right to open trial is a complementary right to the freedom of media and right to information. However, if these rights are unlimited and absolute, one of the biggest risks and dangers in today’s world is the media trial and character assassination, infringement of individual privacy and reputation and fair trial as media often builds public opinion even before the actual trial proceeds. Media as one of the most powerful tools in dissemination of information to the public has also not been impartial or fair in many cases across the world. Many media are also often driven by its own interest and editor’s individual discretion of how the story is to be told or political affiliations or influences have on certain cases.
Judicial proceedings are not merely debating of certain issue but is about deciding the issues of family, the friends, foes, communities and nation. It is about one’s personal story which are at best kept within the four walls of the courtroom and neither the judge or judicial officers nor the media should divulge such information to the general public on many issues. Media must exercise restraint and self-censoring in issues of personal privacy, reputation, the information that are false or vulnerable to manipulation. Sometimes, some just things seems unjust in the eye of public while some unjust can be seen just.
At the end, neither the court nor the media must derive anything but determination of truth and justice for the litigants or parties and nothing more, nothing less.
Having said this, judiciary as an institution for just and fair society, must uphold the fundamental principles of freedom of press which ultimately becomes the voice of people and access to information. The access to judicial reports, proceedings must be there without any restriction as matter of administration of justice so long as it is in the public interest and within the jurisdictions of the authorities.
It is a universal principle that once the judge decides the case, the judgment becomes a public document. Therefore, it shall be made accessible not only to the media or few fortunate but to everyone in the society. The right to determine merits and demerits or critical analysis are completely legitimate and absolute and cannot be curtailed through any decisions or law as judgments are nothing, but a public property. The citizens shall enjoy the right raise their voice in favour or against the judgment or verdicts passed by the court so should the media.
Media’s role of reporting on the judicial decision is not merely to reflect what is already mentioned and decided but being able to critically analyze, rather transcends way beyond, by way of simplifying the legal issues into common man’s language, critically look at the laws and principles applied and inform the public of consequences of decisions in that case to the society.
Media should be a medium through which people are given to understand that whether the justice is not only done but seen to be done.

The right of media should be for justice, not media trial.

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker." Frederick Douglass, 1860

The story on judiciary untouchable by media is a dangerous statement in the democracy and if true is not only against the freedom of press or media but also against the basic principles of fundamental rights of individual citizens, the right to information, right to know and freedom of speech and expression.

OF LEGISLATION: WHO CAN MAKE LAWS?

Disclaimer: This article was published in the Third Legislative Journal of National Assembly of Bhutan. The Journal was launched officially on 5th Feb 2017 coinciding with the Birth Anniversary of Royal Prince (Gyalsey). 

1.      INTRODUCTION

Democracy is established based on Rule of Law. Rule of Law establishes the just and fair society. Law brings peace-coexistence among all humans in a civilized society. Without law, man would be worse than animals. In nutshell, every system of governance functions on the basis of law. Without law, world would be in chaos, uncivilized and one giant disorganized society. Law-making is process of shaping the nation, build nation, instil the values of democracy and uphold the rule of law. Parliament is the exclusive organ of the government responsible for enacting laws in the country. This article purposes to briefly explain what is Law? What is Rule of Law? And who can make laws?