By Chimi Wangmo
As the Office of the Attorney General published their annual report 2020, Attorney General Lungten Dubgyur stated that the year 2020 was out of the ordinary due to the Covid-19 pandemic.
He said it created a scenario that is unprecedented and necessitated not just Bhutan, but the world, to adjust to a new normal. Service delivery transitioned from the use of conventional methods of functioning to working remotely from home, which invariably led to the exponential and unrivaled use of information and communication technology to keep up with the times.
“It was crucial that state prosecution and the delivery of legal services by the Office adapted to the situation and briskly adopted e-litigation and e-communication as tools to offset the surreal circumstances brought about by the pandemic. The counter measures adopted by the Office to perform its daily affairs proved to be highly cost-effective and time-efficient, consequently birthing the conceptualization of e-litigation,” AG Lungten Dubgyur said.
To this end, the AG said, the Office has initiated and adopted many new reforms. In September, the Office was able to commence its work towards the development of the Enterprise Legal Management System (ELMS).
He saidiIt is essential that the OAG leverage the use of information and communication technology as envisioned by His Majesty the King to counter the effects created by the pandemic. The envisioned central system is matter-centric and has the potential to generate significant efficiency gains through effective management of the Office’s business functions.
The ELMS is envisaged to provide efficient, effective, and transparent services based on data-driven decisions for policy reform, amendment of laws, and enactments of new legislations thereby providing timely delivery of justice to the people.
The system sets up a platform for interfacing with other institutes in the justice sector and creates a ‘single source of truth points’ in achieving the integrity of data while reducing the turnaround time that will enhance the timely delivery of legal services.
The development of the ELMS System aligns with the objective of re-assessing and reducing RGOB capital activities and expenditure. The practice of conducting prosecutions and court proceedings using information technology, video enabled court proceedings as an offset to the pandemic, is found to have reduced the financial burden upon the State substantially.
The Office has also worked towards addressing His Majesty the King’s concerns on the lack of legal expertise in the commercial and financial sector with the creation of the ‘Financial and Corporate Legal Service Unit’ (FCSLU).
On 18th September 2020, the unit was officially created and two Senior Attorneys were laterally transferred thereto. This unit will specialize in financial and commercial legal matters and seek to bring reforms in government procurements, drafting and execution of contracts, and develop dispute resolution mechanisms, among others.
The OAG noted that the problem hitherto is that government contracts are poorly drafted, compounded by the emerging trend of the government losing contractual disputes. The high pre-trials costs and outcome of the losing cases has led to the huge financial burden on the government exchequer. The objective is to eventually upgrade the unit into a separate division in order to fulfill the sacred vision of His Majesty the King.
AG Lungten Dubgyur stated it is also crucial that the Office creates an ‘International Affairs and Environment Division’ to develop expertise in Public International Law for Bhutan to keep pace with the rapidly evolving and developing international practices and in understanding our obligations to the international community.
“The increasingly interdependent and connected world necessitates a more meaningful multilateral effort to deal with transnational issues, and it is imperative for Bhutan to initiate the specialization of expertise in international law as a parallel development to other state practices and expand human resources and legal expertise in our Diplomatic Missions and Embassies abroad,” he noted.
It is also opportune for Bhutan, given our national and international commitments, to influence the development of international environmental laws for preservation of the environment as well as combating climate change.
Moreover, the Office as the parenting agency is now bestowed with the responsibility of developing the capacity of the entire legal fraternity as provided under the Bhutan Civil Service Rules and Regulations 2018.
Accordingly, a working committee from the Office on Parenting Agency was constituted by the Human Resource Committee, which involved attorneys from the Office and senior legal officers as representatives from different ministries and agencies to address the pertinent challenges and issues faced by the legal fraternity.
The resulting framework sets forth clear terms of reference and standard operating procedures, and includes among others, the coordination of information sharing, clear roles and responsibilities and placement of assignment, reporting and monitoring mechanisms.
However, it is stated that the ‘OAG Roles, Mandates and Parenting Framework’ is yet to be approved and adopted by the Royal Civil Service Commission. The standardization of criminal prosecution and appeal of the cases has been reviewed and adopted to reduce cases of frivolous and trivial nature being submitted before courts.
Further, the prosecution of defendants and any punitive actions related thereto must mitigate the damage to society rather than aggravate it and must be in conformity with the Principle of Reformative Sentencing and Decriminalization.
In addition, the review of a case must undergo a holistic outlook into the nature of the offence committed, i.e. it must pass the public interest test and evidentiary test, and the cost benefit analysis to the overall criminal justice system must be evaluated before prosecution. Further the grounds of appeal should pass the test of reasonableness in sentencing and remedial measures considered by the trial Court, the gravity of the harm caused to the victim, retribution commensurate to the harm, and the soundness and rationality of the deterrence theory.
Therefore, the AG said, the OAG shall submit an appeal only when it is satisfied that there is a probable miscarraige of justice, lacuna in the laws, clear violation of stare decisis or on the probability of securing a positive judgement as to a substantial question of law or its interpretation.
It was noted that in 2020, the total recovery in restitution from the State prosecution through the enforcement of judgements is Nu. 33.73 million. The Office restituted a total Nu.18.06 million to victims of crimes, while Nu. 15.67 million was recovered and remitted to the State.
Finally, the AG said the defaulters breaching the protocols posed a grave risk to the safety of the general public, and defendants were charged for Criminal Nuisance, and Breach of Public Order and Tranquility.
However, His Majesty the King on 21st February, 2021, showing great benevolence and compassion, pardoned individuals who were convicted and served a minimum of six months’ imprisonment or more.
“The Royal Pardon has helped to reintegrate defendants in the society, restored human dignity through decriminalization, allowed individuals to repent and reform, promoted general good will of lawful compliance, helped decongestion of our prison system and reduced the overall financial burden by the pandemic,” AG Lungten Dubgyur said.