Reforms at the Office of Attorney General

The services offered by the experienced lawyers for the government has always been challenged by the absence of Specialized Divisions. To have specialized personnel is a very important aspect of progressive growth and is aligned to the aspiration of providing services effectively and efficiently. Specialization also enables the office to supplement and add onto the formulation of long-term policies in matters of law and the legal profession in general. If mindfully executed, the risk of non-specialized services provided and more importantly, the risk of damages caused through generalized divisions is minimized.

Towards achieving specialization, the OAG has embarked on creation of the following:

Working Committee for OAG-Parenting Framework

Mindful of the challenges faced by lawyers within the various governmental institutions, a Working Committee for OAG Parenting Framework, consisting of a member from each Division of the OAG along with the Human Resource Officer, has been constituted on 15 September 2020.  The committee has been tasked to work in consultation with all the Government lawyers under the Legal Services sub-group, to set clear delineation of roles and responsibilities of Legal Officers in Ministries/Agencies/Dzongkhags respectively, in the form of Terms of Reference. 

Terms of Reference for the Working Committee

In setting out clear roles and responsibilities of government lawyers, the Working Committee has been tasked specifically to: 

  1. Review the existing ToR for Government Lawyers;
  2. Set-out clear area of work for the OAG and the government lawyers in cross-cutting subject matters;
  3. Develop ToR for the Government lawyers in consultation with the lawyers for approval based on the nature of work they were tasked to perform;
  4. Examine and propose an official channel for better communication between the lawyers working outside OAG and the parent agency;
  5. Conduct a need assessment and report on the need for Dzongkhag Legal Officers/Regional Offices. 

 Standardization of Criminal Prosecution

Pursuant to the appointment of the Hon’ble Attorney General, reforms toward the standardization of criminal prosecutions have been adopted due to the conglomeration of cases in the courts resulting from cases of frivolous and trivial nature. It was felt that prosecution and its resulting punitive actions must mitigate the damage to society rather than aggravate it. Therefore, the review of a case must involve a holistic outlook into the nature of the offence committed, mitigating and aggravating circumstances of the case, cost benefit analysis, evaluation of the overall criminal justice system along with the principle of reformative sentencing and decriminalization in society. The prosecution must duly consider the overall economic, social and financial burden to the state whilst preparing to forward an indictment before a court of law.

Standardization on Appeal of the case;

The grounds for appeal should pass the test of reasonableness in sentencing, punishment or remedial measures considered by the trial court, the gravity of harmed caused to the victim and retribution commensurate to the harm. Appeal must be based on the principle of questions of laws and not on questions of fact. An appeal to a higher court must consider the probable miscarriage of justice for the defendant, lacuna in the laws, clear violation of stare decisis or established case precedents, and on the probability of securing a positive judgment. Finally, any appeal to the Supreme Court of Bhutan must be made only when substantial questions of law or its interpretation is involved.

International Affairs and Environment Division (“IAED”)

This new Division is proposed for the purpose of providing legal advice to Ministries, Agencies and statutory bodies specifically on matters of “International Law” and “Environmental law”. The Office through this IAED will represent Bhutan at bilateral and multilateral forums, and will work in the area of international dispute settlement, international trade law, FDI, civil aviation law, international criminal law, diplomatic privileges and immunities, international human rights law, international environmental law, law relating to the United Nations and International Agencies/Bodies.

The IAED’s objective includes the development of international law expertise for Bhutan. In addition, the Treaties Section within IAED should serve as the central coordinating body for all treaty making activities undertaken by the Government. This also includes streamlining and standardizing the procedures involved in the treaty-making process. The IAED would serve as the central repository of treaties made by the Government and information relating to Bhutan’s treaty practice.

Property & Judgment Enforcement Unit (“PJEU”)

One of the primary mandates of the Office of the Attorney General is undertaking Prosecution and Litigation on behalf of the State, which is undertaken by the Department of Justice and more specifically the Prosecution and Litigation Division (“PLD”). Under this Department, the PJEU is an important unit that gives life to the Judgments rendered by the Courts and ensures that the limited state resources are safeguarded from erosion if a judgment requires such actions for the benefit of the State. This unit is responsible for the enforcement of Court Orders and the types of enforcements include referral of convicts to rehabilitation centers, payment of compensation to victims, restitution of money to judgment creditor (corporations, CSO, etc), restitution of money to the State, auctioning of seized properties, and diversion of child in conflict with the Law.

In undertaking this task, the PJEU works closely with the Anti-Corruption Commission, Royal Bhutan Police, Bhutan Narcotic Control Agency, State owned enterprises, civil society organizations, Department of National Properties, National Commission for Women and Child, correctional facilities (Jails), Courts, Ministries, Agencies, and Victims and Defendants including their dependents.

Governance and Corporate Legal Service Unit (GCLSU)

In pursuance to His Majesty’s concerns on the lack of commercial and financial legal expertise in the justice sector, the emerging trends of losing government cases, and high pre-trials costs not commensurate to judicial decision leading to huge financial burden on the government, the creation of “Governance and Corporate Legal Service Unit” under the Legal Service Division of the Office was urgently required to fulfill the sacred vision of His Majesty the King. Accordingly, on 15 September 2020 theGCLSU, a specialized and competent team in the field of corporate law and financial law was proposed by the present Attorney General Dasho Lungten Dubgyur. Relevant officials were transferred from other divisions within OAG to lead the Unit.  Presently, the new unit will briefly: scrutinize government tender documents; review existing contractual documents and agreements to which the government is a party, including but not limited to, evaluating cost-benefit analysis; examine the financial burden arising from litigations and pre-empt government from engaging in avoidable litigations; and attain clear understanding and interpretation of commercial and financial laws.

Enterprise Legal Management System (ELMS)

The Corona virus (COVID-19) pandemic is redefining our way of life globally, pushing developing nations as Bhutan still transitioning into the information technology world into briskly adopting information technology as an unrivaled tool for communication and functioning in its daily affairs as a nation.

Accordingly, the Office of the Attorney General is also adopting the best usage of information technology in adapting to this new normal. The Office is using video conferencing tools in its communication and collaboration with its legal officers in the bureaucracy as a Parent agency. Likewise, submissions to courts and the attendance of hearings as far as possible are proving to be highly cost-effective and time-efficient allowing, the scope to conceptualize e-litigation.

Besides, efforts of working towards an ELMS is in the process to eliminate the parallel processes, which allow technology interfacing in achieving the integrity of data while reducing the turnaround time in rendering prosecution & litigation, drafting & review, and legal services to the State.

Research Initiative

The Office under the tutelage of the Attorney General has initiated a novel program to enhance the intellectual capacity of legal personnel within the institution. The program entails the commission and publication of research on contemporary legal issues and challenges. The research is executed and published with the objective of creating a foundation that is unavailable hitherto, which will contribute greatly to the expansion and understanding of Bhutanese jurisprudence.