Clear to run(?)

About 6 weeks ago, at a press conference, the prime minister claimed that the Election Commission of Bhutan should disqualify the opposition party from taking part in the next round of elections for failing to clear its debts by the 30 June deadline.

Remarkably, the prime minister also suggested that the two members in opposition should not be permitted to run in the next elections … not as members of their current party, not by starting a new party, not by joining another party.

As it turned out, the election commission, having reviewed the status of the two existing parties, decided that both PDP and DPT continue to enjoy their status as registered political parties. That means that PDP will be able to participate in next year’s elections. That also means that the two members in the opposition will be able to run in the next elections.

Okay, that’s clear.

But what’s not clear is if the prime minister, some of the other DPT ministers, and the speaker will be allowed to take part in the 2013 elections?

The prime minister, the speaker and other ministers have all been implicated in the Gyelpozhing “land grab” case. The Anticorruption Commission investigated the case and concluded that 67 of the 99 plots allotted in Gyelpozhing were “illegal”.

The ACC has already issued a “freeze notice” forbidding any transactions on 75 of the plots.  And they have forwarded the case to the Office of the Attorney General in keeping with the Anticorruption Act, Section 128 of which states that OAG “… shall undertake prosecution of persons on the basis of the findings of the Commission for adjudication by a Court.”

But can OAG prosecute members of the government? Chapter 3, Section 12(a) of the OAG Act states that OAG shall “… represent the Government in civil litigation and criminal prosecution before the Courts of Law …”. Furthermore, Chapter 4, Section 20 of the OAG Act declares that, “The Attorney General shall be accountable to the Prime Minister”.

In fact, the OAG Act does not prevent the attorney general from prosecuting the persons charged in this case, as they are being charged as private individuals, and not as members of the government.

But what if OAG is unwilling to prosecute? What if they feel intimidated? And what if they drag their feet? Then what?

That should not happen. But in the unlikely event that it does, ACC is empowered to conduct its own prosecution. According to Section 128(3) of the Anticorruption Act, the ACC may “… carry out its own prosecution of a person charged with an offense under this Act or take over the prosecution process from the Office of Attorney General when the case is:  (a) delayed without valid reason; (b) manipulated; or (c) hampered by interference.”

So whether it’s by OAG or by ACC, the persons implicated in the Gyelpozhing case will be charged.

But that’s not all. According to Section 167(2) of the Anticorruption Act, “ A public servant who is charged with an offense under this Act shall be suspended with effect from the date of the charge till pending the outcome of any appeals.”

That means that once the prime minister, speaker and other the ministers involved are charged in a court of law, they must be suspended.

But even that is not all. Section 179(g) of the Election Act provides that “A person shall be disqualified as a candidate or a member holding an elective office under the Constitution, if he/she: has been accused of felony in a pending case and the competent Court has taken cognizance and charges have been framed against him/her.”

That means that once they are charged, and if they are accused of felony, they must be disqualified from their offices, not just suspended.

That also means that, unless they are acquitted by the courts of law, they cannot take part in next year’s elections.

The first Parliament will complete its term in April 2013. And according to the Constitution, elections must be conducted within the next 90 days. That means that elections must be conducted by July, at the latest. And that means that, to take part in the elections, the accused must be acquitted by June 2013.

That’s just nine months from now. Nine months for the speaker to prove that he didn’t break the law in the way he allotted land to influential people. And nine months for the prime minister, the minister for works and human settlement and the minister of finance to prove that they did not break the law in applying for and accepting large tracks of land in Gyelpozhing.

Gyelpozhing: who’s right?

People's land

Almost six months ago, Tenzing Lamsang exposed the Gyelpozhing land grab case, and explained how laws of the land had been broken to acquire public land and redistribute them to influential people.

A week after that, Dasho Neten Zangmo, the Anticorruption Commission Chairperson, was quoted as saying:

We will look into the case and if there is any element of corruption, abuse of power and conflict of interest and if land has been taken unjustly from private people then we will further investigate the case.

It’s been almost half a year since ACC’s assurances. So I was happy to hear that they have visited Gyelpozhing and that they “… are in the process of reviewing allotment procedure, eligibility criteria, details of all beneficiaries and even the rationale of acquisition.”

But I’m worried that the investigation is taking too long. And Dasho Neten seems to echo my concern by saying that, “It’s going to take a lot of time going one by one”.

I’m worried. And I’m worried for many reasons. But mostly I’m worried because some of those who are allegedly involved are “powerful and influential people”. They include the prime minister, cabinet ministers and the speaker. And in their case, I’m sure that, as politicians, they would want the investigation to be complete well before the 2013 parliamentary elections. It is in their interests that the investigations are over by then. It is also in the Election Commission’s interest. But mostly, it is in the interest of the electorate, our people.

Even so, Dasho Neten has warned that the investigations will “take a lot of time” and ruled that:

We just can’t investigate only a few powerful and influential people. We have to see and study the background of all the beneficiaries like whether there is a ‘nexus’ between the allotter and beneficiaries.

I agree. We need a thorough and complete investigation. An investigation that is not targeted to “a few powerful and influential people”, but one that examines all the people who were involved, one that is comprehensive in its scope.

That said, all the so-called “beneficiaries” cannot be lumped together; they cannot be treated the same.

I can see at least three types of “beneficiaries”. The first type is the beneficiary who developed a “nexus” with the allotter. That would be outright corruption, and both the allotter and beneficiary should be taken to task.

The second type is the beneficiary who applied for land, and was allotted land even though that beneficiary did not qualify to receive land. If that beneficiary did not seek to influence the allotter’s decision in any way, then the beneficiary cannot be held responsible. It was the allotter’s responsibility to check and to confirm that all recipients of land fulfilled all the criteria. So in this case, the allotter should be taken to task.

The third type is the beneficiary who should never have applied for land given the existence of serious conflicts of interest. Beneficiaries of this type would include all public servants (and their immediate family members) who were directly involved in the acquisition and distribution of land. And naturally, they would also include all cabinet ministers (and their immediate family members), but especially ministers who’s job it was to supervise the dzongkhag administration, or to approve the proposed township, or the authorise the land acquisition, or to endorse the allotment criteria.

We cannot excuse the misuse of inside information, the abuse of government power, or the disregard of conflicts of interest. They are the most damaging forms of corruption. So in this case, the beneficiary should be taken to task immediately.

Photo credit: Business Bhutan who also reported that Gyelpozhing residents protested the plot allotments, and that people who lost land were struggling

Observing anticorruption day

Here’s how I observed International Anticorruption Day yesterday:

One, I went through Transparency International’s Corruption Perception index report for 2011. Bhutan is rated 5.7 (10 means perceived to be very clean; 0 means very corrupt) and is ranked a decent 38 out of the 182 countries and territories that were studied. Bhutan’s rating of 5.7 remains unchanged from the 2010 corruption perception levels. Not bad, but we can, and must, do better.

Two, I tuned in to see BBS’s live debate on the topic “Is Bhutan doing enough in fighting corruption?” The debate, which was organised jointly with IMS, had six panelists, all honourable members of the Parliament. The debate would have been a lot more meaningful if the panelists were chosen to defend two different sides of the motion – one team contending that Bhutan is doing enough to fight corruption; the other arguing that Bhutan is not doing enough.

Three, I closed my poll that asked “Is ACC taking too long to start investigating the Gyelpozhing land case?” The big majority – 300 of the 352 who took the poll – answered “yes” the ACC is taking too long.

Four, I drafted a letter to the ACC encouraging them to investigate and resolve the Gyelpozhing land case as soon as possible. The case is significant as it raises serious questions on the conduct of our senior-most public officials, many of whom hold powerful offices. Did they, for example, violate laws in the way that land was acquired and distributed? And was conflict of interest standards compromised by senior officials who applied for and received land?

Five, I drafted a letter to the Royal Audit Authority requesting them for a copy of their report on the special investigations that they carried out on the lottery operations. I had asked for the report in June this year, but was denied it. I’m hopeful that, for the sake of transparency and accountability, the RAA is now prepared to make the report public.

i-Question

Did DHI try to bribe the prime minister and cabinet ministers? If, as the PM claimed in Kuensel, DHI had indeed offered them “the latest generation iPhones”, then that would amount to blatant corruption. And the Anticorruption Commission should investigate it thoroughly.

Why should this particular gift be seen as “blatant corruption”? Because three years ago, during the new year, DHI had given Nokia cell phones to all officials holding cabinet rank, including the PM and the opposition leader. But, as far I know, most of the recipients did not accept the gifts; most of them had returned the cell phones after the National Assembly MPs rejected DHI’s bags, which they had received at about the same time.

Now after all that, if DHI is still tempting our ministers, this time with iPhones, we should be concerned. We should be alarmed.

But what if DHI had not offered iPhones to the PM or to any other minister? Then what? I ask this because DHI has apparently denied giving iPhones to the ministers. In fact, the very same Kuensel report states that, “DHI officials denied having done anything of the sort.”

So we have two stories. And only one of them can be true.

If the PM is right – if DHI had indeed offered him an unsolicited gift – we should be alarmed. And ACC should investigate DHI for attempting to bribe our senior most government officials.

But if DHI is right – if they have not offered iPhones to the PM or any other minister – we should be equally alarmed. The PM should then have to explain why he has misled the public, and why he is undermining DHI’s reputation.

Kuensel’s website has been giving problems. So here’s the clip of their iPhone story.

 

 

Investigating Gyelpozhing

Last Saturday, more than two months after Business Bhutan broke their story about alleged land grabbing in Gyelpozhing by senior public servants, the Anticorruption Commission announced that they:

“… are in the process of studying laws related to land, policy issues, analysing and re- viewing the complaints they received with regards to Gyalpoizhing land case.”

The Gyelpozhing land case has raised serious questions about alleged corruption involving our senior-most public servants when land was acquired and redistributed in Gyelpozhing. This is a big case. And it is an important one. So the ACC is correct in studying the case carefully before they launch an all-out investigation.

But the questions remains: Is ACC taking too much time to start investigating the Gyelpozhing land case?

Please share your views here. And please take the poll that asks the same question.

We should (not) be proud

I applaud how the prime minister has responded to allegations that he, and other powerful people, were allotted land illegally in Gyelpozhing. He has written to ACC to investigate the allegations, and he has promised that offenders, especially those holding current political authority, will be made fully accountable.

The fact that the head of the government demands to be investigated is a very good precedent. We should be proud.

But I also condemn how the prime minister has responded to the same allegations. He has questioned the motive for and timing of the media’s reporting on the so-called “Gyelpozhing land grab case”. On the one hand, he asked if the allegations had been made “just as people are talking about next round of elections”. And on the other hand, he asked if the allegations had been aimed at “discrediting the government” just as the all-important round table meetings were in session.

That this response smacks of fear mongering, a tactic used by unscrupulous politicians throughout the world, is not a good sign. We should not be proud.

Utter nonsense

The National Assembly’s live TV broadcasts are proving useful. One observer, for instance, a senior civil servant, followed the recent debate on the Anticorruption Bill, and noticed that I “didn’t utter a word” during the discussions. She spoke to Kuensel about it, which reported that:

A senior civil servant said the opposition leader was very emphatic about the severity of the tobacco Act’s penalty that he went to the extent of hiring a lawyer for the first Bhutanese to be convicted under the Act, pro bono.

“He didn’t utter a word when members were deliberating the corruption amendment bill,” she said.

Yes, the senior civil servant is correct when she says that I was “emphatic about the severity of the tobacco Act’s penalty”. Yes, I objected to the excessive penalties for seemingly minor infractions provided in the Act. But I, like most of Bhutan, completely agree with the aim of the Tobacco Control Act, which is to reduce – perhaps even eradicate – the consumption of tobacco in our country.

And yes, the senior civil servant is correct when she says that I “didn’t utter a word” when we deliberated the Anticorruption Bill. I did not speak – either for or against the Bill. But I, like all of Bhutan, completely agree with the aim of the Anticorruption Bill, which is to reduce – hopefully even eradicate – corruption in our country.

Why didn’t I speak? I didn’t because I couldn’t. And I couldn’t, because I was not given the floor on the two occasions that I put my hand up.

The speaker probably did not see me. But had he noticed my hand go up, and had he given me leave to address the Parliament, I too would have argued that the penalties proposed in the Anticorruption Bill were excessive, and I too would have supported the revised penalties.

The senior civil servant seems to insinuate that I should have opposed the revised penalties. I couldn’t. Not because I didn’t get to speak. But because this time, I actually agreed with the majority. Even if I were given floor, I would have just recorded my support for the revised penalties.

That, incidentally, is why I voted “No” for the Tobacco Control Bill, and “Yes” for the revised Anticorruption Bill.

I hope that the senior civil servant in question will now see some consistency in my actions. I do not, and I cannot, oppose for the sake of opposing.

But were the penalties that were originally proposed in the Anticorruption Bill excessive? You decide…

According to the original draft, the penalty for all bribery and embezzlement offences was:

A person guilty of an offence under this section shall, on conviction, be liable to imprisonment for a term not less than five years to not more than nine years.

In other words, almost all offenses were originally categorized as third degree felonies, regardless of the magnitude of offense. So if a person is caught giving a Nu 100 bribe, that person is liable to spend five years in jail. But if a person is caught offering a Nu 13 lakh bribe – or for that matter a Nu 13 million bribe – that person is liable to spend a maximum of nine years in prison.

The penalties did not differentiate between the severity of the offenses. And while the penalties for small offenses were excessive, those for very big offenses were exceptionally lenient.

So the Parliament, in a joint sitting, revised the penalties as:

An offence under this section shall be a misdemeanor or value based sentencing, whichever is higher, subject to maximum of a felony of Second degree if the value of the amounts involved in the crime exceed the total amount of minimum wage at the time of the crime for the period of 35 years or more.

Under the revised penalties, a person caught offering a Nu 100 bribe could be sent to jail for 1 to 3 years. But, on the other hand, a person caught offering a Nu 13 lakh bribe could now be sent to jail for 9 to 15 years, not just between 5 to 9 years as was originally proposed.

The new penalty structure is more reasonable. And it’s more logical. As such, it should be a much more effective weapon in our war against corruption.

That’s why I did not oppose it. And that’s why I voted for it.

Opposing corruption

“guardian” entered three comments on my last post. All three were on corruption.

In the first comment, “guardian” complained that I hadn’t given any attention to this important issue:

OL simply needs to get his priorities right. When there are so many cases of corruption in the country, OL has not even raised his voice once. I suspect that somehow if he does that, he will find more PDP supporters who are behind all these corrupt practices.

In the second comment, “guardian” laments that no one seems to be doing any thing about the malaise spreading through our society:

Right now the most serious problem which is leading to poor governance is corruption which seems to have pervaded every section of Bhutanese society. Sadly, though, it was the government which kept on stating that corruption in Bhutan was at manageable levels, only to find out now, that it is a tough nut to crack.

Even the ACC it seems is not able to cope with the scale of corruption in the country.

And in the third comment, “guardian” persuades the opposition party to challenge the government:

Ol does not need to do anything, there is enough evidence as per the ACC reports that there is rampant corruption. OL just needs to tell the DPT government that he is worried about corruption and ask the ruling government to do something about it.

The fact that he is not even blogging about it very worrying indeed. Don’t you agree with me!

But it’s not just these three comments. “guardian” has left a string of comments, in many of my posts, all calling for opposition to corruption in Bhutan. And it’s not just “guardian”. Other readers have also voiced various concerns and objections to corruption.

Corruption is real. Corruption is rising. And, left unchecked, corruption could get dangerously pervasive. So we must act against it, individually and collectively. Otherwise this scourge will become irreversibly entrenched in our society.

But how do we fight? How do we fulfill our constitutional duty to “… uphold justice and to act against corruption”?

We can file reports – even confidential ones – to the Anticorruption Commission. We can go to the press. And we can discuss this important issue here, in this blog.

So if you know of any instances of corruption I urge you to report them to ACC. I encourage you to talk to the media. And I welcome you to discuss them here. This issue is important for the health and the future of our country. So let’s discuss it. And let’s do so constructively and responsibly, without engaging in slander, libel or malicious gossip.

On my part, I’ll listen and I’ll learn. And I’ll raise your concerns with the government and the ruling party, especially in the Parliament, the next session of which begins on the 20th of May.

Lottery questions

During Question Hour yesterday, I asked the finance minister two straightforward questions:

“What action has the Royal Government taken to investigate alleged violations by Bhutan’s lottery agent in India?”

“What action has the Royal Government taken to investigate alleged violations in the manner the lottery agent was appointed and reappointed?”

The finance minister’s reply was a long-winded narrative about the history of Bhutan lottery. And an elaborate recount of how the government selected their lottery agent, and how, later, reduced that agent’s contractual obligations.

But the finance minister did not answer the question: has the government investigated the alleged violations? That would mean that they haven’t. If so, I am surprised.

I’m surprised because the scale of the allegations is huge, even by Indian standards. By now, the government should have summoned their lottery agent and demanded explanations. And they should have conducted a thorough audit of the government’s lottery offices, at home and in India.

I’m also surprised because, left unchecked, the allegations can seriously undermine the government’s policy of “zero tolerance to corruption.”

It’s time to take the matter up with the Anti-Corruption Commission.

Anticorruption (Amendment) Bill

One of the most important legislations that the National Assembly will debate during the sixth session is the Anticorruption (Amendment) Bill 2010.

The National Council had resolved to amend the Anticorruption Act 2006 during its third session. And based on that, the Council’s Good Governance Committee and ACC officials carried out a review of the Act. The Act was revised to clarify and rationalize some of its provisions with other laws including the Penal Code of Bhutan and the Civil and Criminal Procedure Code of Bhutan. It was also revised to ensure compliance with the United Nations Convention Against Corruption guidelines.

The Anticorruption (Amendment) Bill 2010 was passed by the National Council during the fifth session. The Bill is not limited to amending certain provisions of the ACC Act. Instead, it seeks to completely overhaul the ACC Act.

You’ll find the Anticorruption Act 2006 here. And the Anticorruption (Amendment) Bill 2010 here.

Please post or email me your comments.