Disputed clause between two Houses on UNCAC Amendment still unresolved

The Parliament couldn’t pass the amendment failing to get two-third of majority. From the 67 sitting members

KARMA CHIMI

Thimphu

The ongoing Parliament couldn’t resolve disputed clause on the United Nations Convention Against Corruption (UNCAC) Amendment on 1 July. The Chairperson of Joint Committee on UNCAC (Amendment) Ugyen Tshering presented the convention for amendment.

The Parliament couldn’t pass the amendment failing to get two-third of majority. From the 67 sitting members, 33 supported while 30 voted for NO. Four members abstained to vote.

The Joint Committee’s recommendation ” to denounce and re-accede to the Convention with reservation to Article 66(2) of the UNCAC” did not get two-third majority.

The UNCAC Amendment was deliberated after a disputed clause between the National Assembly and National Council. Following the dispute between the two Houses, the Joint Committee on UNCAC (Amendment) was formed to discuss on the disputed clause of the Convention.  

The Ministry of Foreign Affairs and the Anti-Corruption Commission of Bhutan submitted documents to the National Council of Bhutan. The Committee found that there was a major lapse in the failure to notify and deposit the reservation of Parliament pertaining to Article 66 (2) of the UNCAC while depositing the instrument of ratification with the Office of the Secretary General of the United Nations. 

From the Committee’s study, it is found that the reservation is important. Reservation will ensure that Bhutan is not bound by Article 66 (2) of the UNCAC which requires dispute between two or more State Parties concerning interpretation or application of this Convention that cannot be settled through negotiations within a reasonable time, to be referred to the International Court of Justice. Out of the 140 UNCAC signatories, about 40 countries have conveyed reservation on Article 66 (2).  

The finding also state that any decision to revoke the reservation would undermine the sovereignty of Parliament.  While reaching at the decision to accede to the UNCAC with reservation on Article 66 (2) in 2015, the National Council had given careful consideration to Bhutan’s national interest.  The importance of registering the reservation on Article 66(2) and its relevance to protect national interest was also emphasized by the Technical Expert Team (2010); the Anti-Corruption Commission (2014, 2015) and the Office of the Attorney General (2014).  

In view of the findings of the Joint Committee recommended to denounce and re-accede to the Convention with reservation to Article 66 (2) of the UNCAC to safeguard the long-term national interest and uphold the rule of law and protect the supremacy of Parliament. 

The second recommendation was that the government to see where the lapses have actually occurred, fix accountability and submit the action taken report to Parliament. 

Bongo-Chapchha MP TshewangLhamo said that as a reformation and to benefit, it is good step ahead to join the Convention without reservation.

Chukha MP Sangay Dorji also said that Bhutan should be proud to join the Convention without reservation.

However, Sarpang MP Anand Rai said there would be misunderstanding in future without reservation. He raised the concern if the country can afford to pay fees while appealing to International Court of Justice.

Some members, including Prime Minister said there would be no repercussion to join the Convention without reservation.

Athang-Thoedtsho MP Kinley Wangchuk said that there won’t be any serious implication to join the Convention without reservation.

The Prime Minister said, “There is no study by experts on detriment to join without reservation,” adding that many countries benefited from the convention.  However, the Prime Minister said, “Joining Convention is not legally binding.”

However, eminent member Tashi Wangdi clarified that the reservation is kept as per the recommendation of ACC, OAG, and in line with Vienna Convention.

The National Assembly in sixth Session of the Second Parliament had supported the recommendations of the National Council to accede to the UNCAC with reservations in December 2015. More importantly, Royal Assent to accede to the UNCAC, with reservation on 66 (2) was granted on 26th May 2016. 

United Nations adopted the United Nations Convention Against Corruption (UNCAC) on 31October 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 26 May, 2016, Royal Assent was granted to accede to the UNCAC, with reservation on Article 66(2). 

Subsequently, on 21September 2016, the Minister of Foreign Affairs (MoFA) during the tenure of second government deposited the instrument of ratification with the Office of the Secretary General of the United Nations.

However, MoFA failed to register the reservation. Following the lapses, MoFA requested the UN Secretary General to accept the late registration of 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 get the reservation registered, the Minister of MoAF tabled the Amendment to UNCAC during the 5th Session of the Third Parliament with a view 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 National Council for deliberation. 

The National Council deliberated on the UNCAC (Amendment) Bill during its 28th Session. The House rejected the decision of 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 the Government to fix accountability for the lapses. 

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