Corruption Offences have NOT been softened

At the Joint Sitting of the 7th session of Parliament, several laws were voted upon and passed; the Anti Corruption Bill 2010 being one. It’s been over a week since it’s passage in the Parliament and news of law going ‘soft’ on corruption offence has emerged through both mainstream and other media. I find it important therefore to try and explain what the passage of the Anti Corruption Bill 2010 means in terms of offences and penalties briefly.

First, the Anti Corruption Bill 2010 is not the first law specifically on corruption, the Anti Corruption Act of Bhutan 2006 already existed before discussions to initiate a new law was taken up. Therefore, it would be more meaningful and also insightful to read recent developments in this light.

Second, the reason for this new law was not only focussed on ‘penalty’ alone but for a wider scope of re-visiting the completeness of the law post adoption of the Constitution.

While several views have emerged which seem to be based on logical reason and argument, it is disturbing to learn that some of the views may have been influenced by reporting with error and information dissemination with incomplete benchmarking. This will all seem more clearer at the end of it.

The Anti Corruption Act of Bhutan 2006 summarizes it’s penalty for corruption offences in two specific clauses; namely sections 121 and 122. The two specific sections also refers to the Penal Code of Bhutan rather than specifying penalty in the law as quoted below:

Penalty121. Any person who is found guilty of an offence of corruption shall on conviction be liable to punishment provided for such offence under the Penal Code of Bhutan or other law.

122. Every person convicted of an offence of corruption under this Act or any other law, for which no penalty is specifically provided under the Penal Code of Bhutan or any other law, shall be liable  to a fine or to imprisonment, or to both, as graded by the Courts.

In the Penal Code of Bhutan embezzlement and bribery in chapter 20 are the relevant sections as far as corruption is concerned, in many ways limiting the ways of dealing with other emerging forms of corruption for the lack of clarity in laws (hence one of the wider reasons for the whole exercise for a new law).

Section 287 and 288 deals with embezzlement specifically, although a little more elaborate it is vital that one understand how the provisions in the Penal Code read exactly (given below):

Excerpt from Penal Code of Bhutan 2004:

Grading of embezzlement:

sec.288 – The offence  of embezzlement shall be:

(a) A felony of the second degree, if the value or the amounts involved in the crime exceed the total amount of the daily minimum national wage rate at the time of the crime for a period of thirty five years or more;

(b) A felony of the third degree, if the item of the crime is not of a type described in Section 290(a) and the value or the amounts involved in the crime exceed the total amount of the daily minimum national wage rate at the time of the crime for a period less than thirty five years and for a period of twenty one years or more;

(c) A felony of the fourth degree, if the item of the crime is not of a type described in Section 290(a) & (b) above and the value or the amounts involved in the crime exceed the total amount of the daily minimum national wage rate at the time of the crime for a period less than twenty one years and for a period of fifteen years or more;

(d) A misdemeanour, if the item of the crime is not of  a type described in Section 290(a) (b) and (c) above and the value or the amounts are less than the total amount of the daily minimum national wage rate at the time of the crime for a period less than fifteen years and for a period of seven years or more; or

(e) A petty misdemeanour, if the item of the crime is not of a type described in Section 290(a) (b), (c) and (d) above and the value or the amounts are less than the total amount of the daily minimum national wage rate at the time of the crime for a period less than seven years.

The Anti Corruption Bill passed at the 7th session has deleted provision(e) a petty misdemeanour’ as the lowest penalty and instead made provision ‘(d) a misdemeanour’ as the lowest penalty allowable under offences of corruption. This means penalty has grown relatively more stringent.

Excerpt from Penal Code of Bhutan 2004:

Grading of Bribery

291. The offence of public bribery shall be a value-based sentencing.

Grading of Commercial bribery

293. The offence of commercial bribery shall be a value-based sentencing

While bribery under the Penal Code of Bhutan has been graded under a value-based sentencing, it is important to understand that the value based sentencing unlike in the case of embezzlement, generally penalty under value-based sentencing starts with a petty misdemeanour and can not exceed beyond a felony of the 3rd degree.

The Anti Corruption law that got passed recently changes that by increasing the minimum penalty from a petty misdemeanour to a misdemeanour and also making special provisions where the upper limit of sentencing exceeds the restraint and can be penalized with a felony of a 2nd degree. This too shows a relatively more stringent law as compared to the existing laws before now.

Combating corruption has and always will remain a priority. A singular modus operandi will not work and therefore, has to take a multi-pronged approach. The legislation that was passed by parliament not only penalizes corrupt offenders severely with a felony of a 2nd degree where deserved but also leaves room for the system to recognize various levels of corruption which in my opinion only makes the law fair and practical to be applied in our society. A perfect tool we need to emphasize on is  the National Anti Corruption Strategic Framework (NACSF). As much as laws penalize offenders, it is also crucial that systems are improved and made as robust and least vulnerable. NACSF is aimed at that and rather than looking at the fight against corruption by simply gauging the severity of penalty (which is severe enough after the revision) I feel other areas are equally important.

Advertisements

About Sangay Khandu

Sangay Khandu is a Member of Parliament, serving his 2nd term representing the people of Gasa Dzongkhag to the National Council.
This entry was posted in Legislation and tagged , , , , , . Bookmark the permalink.

2 Responses to Corruption Offences have NOT been softened

  1. Tashi Jyatso (http://goo.gl/iqNJu) wrote this on Facebook about this article. I am re-publishing below because he has brought out some very pertinent concerns and issues. Thank you.

    You are right when you say that you have made the ACC act more stringent but I think it is not the law that is problematic in our country. We have an abundance of laws for decades in our country but they seem to remain dormant in the legal texts forever, and applicable only to the humble people at the most. The bigger goons always seem to get away with their loots. Therefore, the question is NOT about making laws more stringent or not, but the question is when will these laws be ACTIVATED and come into force? When will these laws be applicable and make a difference to our nation? Is our country suffering from a shortage of law, or is the bad implementation of our laws the main problem—this is the pertinent issue.

    Buying plastic buckets worth Nu 600 for Nu 7,500 and treadmills worth Nu 97,000 for Nu 1.3million is not a concealed corruption but an open day light robbery of our nation with least regard to our laws (http://www.businessbhutan.bt/?p=4199). They have cheated millions from our country even at the cost of the life and death of our people, which is, irrespective of the monetary value, is a heinous crime per se. Many call it a crime against humanity!! The ACC had exposed the corruptions and the media had publicized it yet nothing is happening. This is crucially where you guys come into play. You make the law and someone violates the law but nobody asks any question. This is bewildering. I think legislators don’t just have the duty to enact laws but should also be responsible to a certain extent to oversee that their legislations are implemented and, implemented rightly. And as people’s representatives, you must raise such issues in the house for the benefit of our people and our country. Isn’t that what you are there in the first place, ask yourself.

    And recently, the ACC have discovered a blind spot of 23million in the MoH. and they have pointed it out to them (http://www.businessbhutan.bt/?p=6124). But the important questions are: how could there be a blind spot in the first place? Was it really a blind spot or was it a deviously neglected spot? Who is accountable for it? And why is the ACC not charging anyone for the crime. When a student in a school does something wrong, the first person held accountable is the principal regardless of whether he is aware of it or not. But in the case of the MoH, nobody is held accountable for all the embezzlements, corruptions and implicated losses that our tax payers are unknowingly bearing the brunt. Nobody is asking these questions.

    And today I see this news in the paper: more than 100 drugs in short supply (http://www.kuenselonline.com/2010/modules.php?name=News&file=article&sid=19677)
    It has been almost 40 years after the establishment of modern health system in our country and yet still our medical drugs supply is not secured. This is very much astounding. Unbelievable!! This shows serious procedural lapses in the procurement of the drugs since the beginning. When there were many suppliers, they chose only the companies they liked for some reasons and now when the ACC busted their deals, these companies threaten to withdraw their supplies. Who is accountable for the whole fiasco? You just can’t be complacent and blame it on the incompetency of the staffs, can you? That will be ridiculous.

    I think the media, especially the Business Bhutan, is doing their job to fight corruption in our country and make it a better place. The ACC and the RAA are trying their best even though they are handicapped on many sides. But if the MPs only keep on making laws, sometimes senseless ones too, and say nothing about these crucial issues in the country, nothing is going to change in our country.

    And the other reason why so many civil servants are resigning today is not only for the greener pastures but more so because of the corruptions in our systems.

    Making a wrong diagnosis and applying the wrong remedy will never cure the patient.

    Cheers La.

  2. Kushal Ashok says:

    Reading the above post and Mr. Tashi’s response tells us that even though the laws are continuously being amended yet they are not suffice.
    The explanation of the various sections make states the exactness very evidently but such rules are no good as long as they do not come out of paper.

    One of the major problems is measuring the severity of the crime and even bigger one is to detect them.
    The examples given by Mr. Tashi throws light on the various issues worth emphasizing.

    I hope that a solution can be computed soon.
    Because corruption is a parasite that if not uprooted can take worse forms. One can read about the issues being unveiled each day in my country (India).

    Best of luck la!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s