Tuesday, January 27, 2015

The Merit of ACC Suspension Demands.

The Commission had issued suspension demands  for two former Lhakhang Karpo project officials and according to media,  may also have issued similar demand  against the Foreign Minister who is already on authorised absence. ACC has been quite impartial in its demand for suspension from service for all those charged in the Court of Law.

It seems that such suspension demands are usually issued on the day the corruption case is filed in the Court of Law. So OAG must have filed the case yesterday the 26thJanuary,2015 at Haa Dzongkhag Court. As per the Act, the ACC is deemed to be empowered to demand such suspension. However, depending on the merit, the suspension demands have been either followed through or kept in abeyance by implementing Agencies in the past. The present scenario is yet to play out. The 'authorised absence ' already sanctioned by Cabinet to Foreign Minister could complicate matters or result in same relief for the other two.

Without prejudice, the automatic exercise of suspension power by ACC needs to be reviewed. At the first glance, there is disparity in that the suspension order is issued to only those that are employed by the Government and the large Corporations. So others facing similar anti-corruption cases are not affected. Therefore, suspension becomes an additional extra pre- judicial punishment for few. It could, therefore, be deemed rather unfair and un-necessary.

In the case of Haa Lhakhang Karpo, the service of the  Lapon had been terminated and both the Engineer and the Manager of the Project have been disassociated from the Project since the ACC investigation. So in a way,  pre-judicial anti-corruption disciplinary actions have already been taken. Therefore, is it really necessary to again impose further punishment on the alleged wrong doers when the Charges are filed in the Court and therefore, jurisdiction transferred from a constitutional or civil Agency to the Court of law?

In my own view, I feel that ACC or the OAG which usually  prosecute the cases on behalf of ACC could go through the judicial process in regards to enforcing  suspension from service of those charged in the Court. This method would be fair as it would accord due cognisance to ACC powers as well as judicial mandate of the Court to examine the merit of exercise of such powers. Just because an Agency or for that matter any authority has certain powers,  does not mean that such powers can  be arbitrarily exercised whether warranted or not. The necessity and relevance of exercising such powers must also be looked into and the Court of Law is the most appropriate authority to determine it.

In the overall interest for protecting the mandate of ACC, the rights of individuals and the judicial mandate of the Courts of Law,a transparent due process must be drawn up in regards to suspension of alleged corrupt individuals charged in the Court of Law. In the past, we have had officials suspended and later found innocent as well as those that ACC could not get suspended but later found guilty. So suspension of individuals from services depended on the influence of that individual versus ACC determination and not at all based on the legal merit of the case or situation.

The past practises were any thing but fair to the defenceless. . Therefore, I submit that ACC, the OAG and the Judiciary kindly take the time and effort to establish an acceptable judicial approach in the matter of ' suspension from service ' so that same rule and process applies to all that are charged in the Court of Law in anti-corruption cases. My own feeling about the issue is to have the Prosecutor submit the suspension demand to the Jude who would decide upon the merit of such a proposition. The Court may possibly want to grant the defendant the opportunity to counter such OAG demand in the interest of seen to be delivering justice.

Palden Drukpa ! Lha Gyelo ! May process of Justice Prevail !

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