LG: A notification that was issued to dzongkhag administrations by the Department of Local Governance (DLG) is in violation of the election Act and local leaders’ entitlement Act Kuensel has found, and has cost the newly elected leaders of Tsirang a month’s salary.

“The date on which the local government (LG) members are administered Oath or Affirmation of Office shall be the day on which a member is declared elected,” the notification states. It adds commencement of the entitlements of local leaders will be the date on which the member is declared elected, which is as per the LG Members’ Entitlement Act 2015.

However, the notification contradicts various provisions of the Election Act 2008, which treats LG members as “duly elected” from the day results are declared. The notification (dated September 12) is signed by the home secretary Sonam Tobgay.

Dzongkhag administrations paid the recently elected local leaders accordingly. In Pemagatshel, salaries were paid from October 18.

In Tsirang, local leaders were paid from October 28, the date on which they took the oath. As per the election Act and the entitlement Act, however, the members should have been paid starting from September 28.

Section 7 of the entitlement Act prescribes: “A member shall be entitled to salary, allowances, benefits and other emoluments from the day on which the member is declared elected.”

According to the election Act, a member of LG is “duly elected” the day the returning officer declares the winner from the constituency, although the ECB officially declares the results one day after the poll day.

The issue, observers say, is about compliance with the law by the agency.

Section 461 of the election Act states that the Returning Officer shall on completion of the counting and preparation of the Final Result Sheet declare in a prescribed form, the candidate who has secured the highest number of valid votes in the constituency as “having been duly elected” from the constituency to the local government concerned. This provides no room for the implementing agencies to use the oath-taking ceremony to declare the election of a member.

In fact, only a member who has been declared “duly elected” can receive certificate of election and take oath.
The electoral laws empower the ECB to declare election of members and not the dzongkhag administration or the drangpon, who administers oath.  Section 465 of the election Act states that the candidate shall, “after he or she has been declared elected by the ECB”, be granted a certificate of election.

Tsholingkhar gup Passing Thingh Tamang said he is hoping that the DLG will reconsider the decision.

“We would like to request the DLG to look into the issue and reconsider the decision for setting the right precedent,” he said. “There is no meaning of having the Act in place if our agencies don’t comply with it.”
He said the issue is a case of “discriminatory and non-uniform” implementation and “non-adherence of the law”. “This is double standard,” he said, adding that grassroots leaders, who are bound by the same electoral laws except for their qualification as MPs, are treated “unfairly” when it comes to entitlements.

MPs’ allowances and other benefits are paid with effect from the day the ECB declares the election result, which happens on the poll day itself or the next day. This is guaranteed by the Parliamentary Entitlement (Amendment) Act 2014, which states: “The salary, allowances and other benefits of the MPs shall be paid with effect from the day of the declaration of the election result or in case of eminent members, from the day the Druk Gyalpo grants the nomination Kasho till the seat becomes vacant.”

Moreover, if the notification is anything to go by, the thrompon and thromde thuemis of Gelephu would be entitled to salary only from October. Because they took their oaths along with the gups in October although they were elected about a year ago.

They received salaries since January this year.

Although the tenure of the local government members commence from the first sitting, a local government is considered constituted on the day the election results are announced by the ECB, according to the laws.

MP Dorji Wangdi said a member is deemed elected from the day the election results are declared and the salaries and perks are paid from the same day. “The oath-taking ceremony is purely for formality,” he said.

“The notification cannot override the laws that are clear,” he said, adding that the laws say that an elected member’s perks are legal and the works done by him/her during the petition period is valid even if the elected member is disqualified after the petition period. “It is clear from this that a member is considered elected from the day of declaration of results,” he said.

The DLG cited Section 208 of the LG (Amended) Act 1014, which states that the home and cultural affairs ministry will ensure that LG members comply with the provisions of the Act and rules and regulations made thereunder. However, the notification does not cite any section of any law as a basis for the DLG’s decision to state that the oath-taking ceremony is considered as the day the members are elected.

Home Minister Dawa Gyaltshen defended the notification. This, he said, is as per the Constitution and the entitlement Act. DLG director general Lungten Dorji said the same.

MB Subba