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.