Dorji Khandu

Context

The United Nations adopted the United Nations Convention Against Corruption (UNCAC) on 31st October 2003. UNCAC is the only globally binding legal instrument against Corruption. Bhutan became a signatory to the UNCAC in 2005. The two Houses of Parliament ratified the UNCAC with reservation to Paragraph 2 of Article 66 in 2015. On 26th May 2016, Royal Assent was granted to accede to the UNCAC, with reservation on Article 66 (2).

Article 66 (2) concerning dispute settlement states, “Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.”

Subsequently, on 21st September 2016, the Minister of Foreign Affairs (MoFA), during the tenure of the Second Government, deposited the instrument of ratification with the Office of the Secretary-General of the United Nations. However, while depositing the instrument, the Ministry of Foreign Affairs failed to register the reservation. Following the lapses, MoFA requested the UNSG to accept the late registration of the reservation. In accordance with the depository practice, two member nations, namely Finland and the Netherlands, objected to the late registration of Bhutan’s reservation to Article 66 (2). Several unsuccessful attempts were made through bilateral arrangements to persuade the two nations to withdraw their objections.

Having failed to register the reservation, the Minister of Foreign Affairs tabled the amendment to UNCAC during the 5th Session of the Third Parliament to revoke the reservation to Article 66 (2). The National Assembly deliberated on the UNCAC (Amendment) and adopted the Convention by revoking the Parliament’s earlier reservation. The UNCAC (Amendment) was sent to the National Council for deliberation.

The National Council deliberated on the UNCAC (Amendment) Bill during its 28th Session. The House rejected the decision of the National Assembly to revoke the earlier reservation to Article 66 (2) and proposed to denounce and re-accede to the Convention with the reservation. The House also recommended that the Government fix accountability for the lapses.

During the re-deliberation of the UNCAC (Amendment) Bill, the National Assembly stood by its earlier decision and refused to accept the decision of the National Council.

Following the dispute between the two Houses, the Joint Committee on UNCAC (Amendment) was formed to discuss the Convention’s disputed clause.

The Joint Committee conducted several rounds of meetings, and after the review of all the documents submitted by the Ministry of Foreign Affairs and the Anti-Corruption Commission of Bhutan, the Joint Committee recommended:

1. To denounce and re-accede to the Convention with reservation to Article 66 (2) of the UNCAC to safeguard the long-term national interest, uphold the rule of law, and protect the supremacy of Parliament.
2. The Government to see where the lapses have occurred, fix accountability, and submit the action taken report to Parliament.

After a thorough deliberation in the House, the first recommendation of the Joint Committee was put to the vote by the Speaker. Out of 67 members present and voting, 33 voted in favor of the recommendation. While 30 members voted against the recommendation, another 4 members abstained.

As the first recommendation failed to obtain the required two-thirds majority of the total number of members present and voting, the amendment 𝒊𝒑𝒔𝒐 𝒇𝒂𝒄𝒕𝒐 stands rejected. Neither the Joint Committee nor the House proposed an alternative recommendation.

Therefore, per the Legislative Rules of Procedure 2017, such a Bill shall be declared a Dead Bill, and no Bill of such substance may be introduced in the Parliament that year.

Since the recommendation of the Joint Committee on the disputed clause of the UNCAC (Amendment) between the two Houses was rejected by the Joint Sitting of Parliament, the UNCAC, with reservation on Article 66 (2) duly ratified in 2015 by the Parliament, shall prevail as the binding legal instrument and deemed to be the law of the Kingdom as per Article 10 (25) of the Constitution of Bhutan.

The UNSG does not recognize Bhutan’s reservation to Article 66 (2) due to the failure to file the reservation on time, and this effectively implies non-recognition of Bhutan’s membership in UNCAC. Therefore, it should be noted that the Government cannot continue to be a party to the UNCAC without resolving the legal anomaly pertaining to Bhutan’s reservation on Article 66 (2) of the UNCAC.

 

Justification of the National Council’s Objection to the UNCAC (Amendment)

National Council rejects the amendment of the National Assembly to revoke the earlier reservation on Article 66 (2) of the UNCAC. It proposes to denounce and re-accedes to the UNCAC with the Reservations on Article 66 (2) to uphold the national interest for the following reasons:

• The decision will uphold the supremacy of Parliament and set a solid precedent to show that decisions of Parliament cannot and should not be revoked to cover lapses of any kind.
• The decision will enhance the Rule of Law and bring about transparency and accountability, strengthening good governance in the country. This firm decision taken by National Council will ensure that similar lapses never occur.
• Parliament’s firm and well-considered decision will cushion and protect the Executive, the Ministry of Foreign Affairs, and the Government from any political and diplomatic pressure the international community may exert on them. Therefore, this assertion of the supremacy of Parliament will protect Bhutan’s sovereignty.
• Acceding to the UNCAC with reservations is also keeping with the advice from the Technical Expert Team, the Opinion of the Office of the Attorney General, and the submissions of the Anti-Corruption Commission made to the House in the past with the primary intent of protecting the long-term national interest of the country.
• The fact that over forty nations (Including India, Kuwait, China, Singapore, Thailand, USA, etc.) have acceded to UNCAC with similar reservations on Article 66 (2) indicates that the reservation holds an intrinsic value that must be protected.
• While the process of denouncement and re-accession to UNCAC could impose additional costs and may impact the image of the country (as opined by MoFA and ACC), this cost would be worth protecting the integrity of parliamentary decisions and long-term national interest concerning international treaties.
• The process of denouncing and re-acceding to international treaties is neither unforeseen nor unprecedented. Denouncing treaties with the sole intention of re-acceding with the reservations to circumvent the prohibition of the latest formulation of reservations is enshrined in Article 19 of the Vienna Convention on the Law of Treaties. In fact, small countries like Trinidad and Tobago, Guyana, and Switzerland have availed this provision to protect their national interest and denounced and re-acceded with the sole intent to register reservations.

In summary, the instrument of ratification deposited by the Ministry of Foreign Affairs, without reservations to the Office of the Secretary-General of the United Nations on 21st September 2016, should be considered null and void as it is inconsistent with the Rule of Law. Therefore, UNCAC with reservation on Article 66 (2) should be upheld until the legal dilemma is resolved. Moreover, as proposed by the Hon’ble Speaker, the House directed the Government to implement the second recommendation and submit the report to the Parliament at the earliest.

 

References:

• National Interest Analysis of the UNCAC, 2021
• Report of the Joint Committee on UNCAC (Amendment), 2022
• National Council of Bhutan, 2022