The following is a reproduction (in parts) of the judgement passed by the High Court, Royal Court of Justice on 30th November, 2012, on the high profile case of ACC Vs. two serving ministers.
Petition seeking a declaration to quash the Anti-Corruption Commission’s Suspension Order against the Speaker of the National Assembly and the Minister for Home & Cultural Affairs issued in connection with criminal charge on Gyelpozhing Land Case.
Petitioner: Office of the Attorney General (OAG) – Represented by Counsels Tashi Delek, Karma Rinzin, Namgay Dorji and Sangay
Respondent: The Anti-Corruption Commission (ACC) – Represented by Counsels Thinley Wangdi, Dorji Thinlay and Sherab Tharchen
… Thus, this Court as reasoned in this Order, rules that the Suspension Order issued against the Minister and the Speaker was not within the ambit of Anti-Corruption Act, 2011 and the aforementioned provisions of the laws and the Constitution.
7. COURT ORDER:
7.1. The Court granted full opportunity to the parties to make their submissions by way of written depositions and the oral arguments. All their submissions were given most careful consideration.
7.2. The Court after considering the merits of the application in particular reference to the Petitioner seeking declaratory order for cancelling the suspension order or any such other orders or directions as this Hon‘ble Court deems fit and proper in the interest of justice; and that the Respondent‘s counter submission with a prayer for an order to sustain the suspension orders issued by the Commission was heard exhaustively in an open public hearing. Each party was represented by their learned counsels.
7.3. This Court applauds the Anti-Corruption Commission’s drive and its determined “effort to prevent, detect, punish and root out corruption,” at all levels with the keen acknowledgement and the necessity of upholding “the fundamental principles of due process of law in a criminal proceeding and in a civil or administrative proceeding,”. Similarly, this Court also draws its mandated strength to fulfill the constitutional duties by way of judicial review to test the soundness of administrative decision as in the current controversy – to give meaning and life to our laws – all intended to serve the nation, ensure justice, peace and to secure – in our Majesty the King’s wisdom to “sustain vibrant and exemplary democracy”.
7.4. As we march forward in fulfilling our Institutional roles and responsibilities, it is natural that – the motion to test the soundness of any administrative decision or action will have to be tested based on the profound principles of truth, legality, and justice.
7.5. THEREFORE, the Court constituted as above, after extensive deliberation on facts and issues and the application of laws and commonly accepted legal principles and the Constitution, do hereby, without prejudice, unanimously rules that:
7.5.1. the application of sections 312 and 313 of the National Assembly Act, 2008 are the procedural requirement to disqualify a member and the duty of the Speaker to relieve such member after having voted with two-thirds majority for not complying with other provisions of the said Act and not when a Member of Parliament is charged for corrupt acts or criminal offences;
7.5.2. the Petitioner, as per sections 31.2 and 125 of the CCPC established the locus standi to invoke Article 21 section 10 of the Constitution to initiate a Petition before this Court as mandated by Article 29 section 3 of the Constitution as a legal representative of the Government to test the legality of suspension order involving critical questions concerning the interpretation of laws and the Constitution. Section 12 (a) of the Office of the Attorney General‘s Act, 2006 mandates to act upon matters “as may be referred to by the Government.” However, the Petitioner being mandated to represent the Government which invariably is established to protect the interest of the State and having submitted before this Court; the Petitioner shall not have locus standi to defend the Minister and the Speaker for the alleged offence in the Court; and
7.5.3. the suspension of the Minister and the Speaker by the Respondent for the alleged offence committed prior to the current posts is established as not within the preview and the scope of section 167(2) of the Anti-Corruption Act, 2011 and the National Assembly Speaker‘s Act, 2004. Thus, the Court upholds to sustain the interim order No. Chetho(Ka-18)2012/2629, issued on 9th November, 2012 to apply irrevocably till the finality of the Judgement.
ISSUED UNDER THE HAND AND SEAL OF THIS HON’BLE COURT ON THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND TWELVE CORRESPONDING TO THE SEVENTEENTH DAY OF THE TENTH MONTH OF THE WATER MALE DRAGON YEAR.
(Lungten Dubgyur) Justice
(Norbu Tshering) Justice