But some lawmakers say the election process is unconstitutional
Thromde: Even as the thromde election is in process in the three thromdes of Thimphu, Phuentsholing and Gelephu, some lawmakers are of the view that the thromde election process is unconstitutional, as the election office, they said has not followed due process.
The issue arises as they quote the provisions of the Constitution. Article 24, section 5, of Constitution states that the National Assembly and local governments should be re-constituted within 90 days after their dissolution. And only in the case of National Council should the elections be held before the expiry of their term.
The first phase of the second local government elections are scheduled on January 25, much before the completion of their terms. For instance, Gelephu thrompon Namgay is expected to resign only after the completion of his term. Thrompon Namgay is not re-contesting.
The election commission, however, cites Section 196 of the election Act, which states that the elections to local governments should be held so as to ensure that they are reconstituted by the end of their term.
This is a stark contradiction to Article 24, section 5 of the Constitution. And the provisions of any law, whether made before or after the coming into force of the Constitution, which are inconsistent with this Constitution, are considered null and void.
Also, the ongoing election process may lack legal backing as the notification calling the election was issued aimed at reconstituting the Thromdes Tshogdes on the expiry of their tenure.
Further, Section 195 of the election Act 2008 prescribes, “An election should be held for constituting a new local government whenever the duration of the existing local government expires or it is prematurely dissolved”.
The election commission, however, through a letter to the editor yesterday stated that while it is correct that elections have to be conducted within 90 days after the dissolution, the thromde elections underway are “not as a result of dissolution”. Nor does the calling of the elections, the election commission wrote, require the dissolution of the local governments.
The ECB wrote, “There are several provisions, which have to be read together to ensure that the elections are held neither too early nor too late.” The ECB also maintains that there has been neither a violation of the electoral laws nor any inconsistency.
A legislator, who chose not to be named, said since the local governments were neither dissolved prematurely nor had completed their term, elections to the thromdes would be “unconstitutional”. “The provisions of the Constitution are very clear with respect to holding the elections of a local government,” he said.
Acknowledging the “anomalies” in the laws, another lawmaker, MP Dorji Wangdi said they did not foresee the problem while enacting the laws. Because of the anomalies, he said it is now the discretion of the ECB to interpret and implement the laws.
It is for the first time that local governments are completing their term after the promulgation of the Constitution. “We did not read the problems of practicality of the laws. We need to streamline them,” he said.
The ECB has long maintained that there is no need for an amendment in the election Act. But they would have never anticipated this problem.
In an earlier interview, Chief Election Commissioner Chogyal Dago Rigdzin said, “We found that most issues raised are genuine but can be addressed through adopting or amending rules and regulations without need for amendment of the Election Act.” His view had come in the backdrop of the National Council’s proposal to amend the election Act in the upcoming session of Parliament.
Meanwhile, candidates are finalizing their campaign schedules. Former Thimphu thrompon and the lone candidate for this year, Kinlay Dorjee said he would kick start his campaign from Babesa Primary School on January 6. “After my meeting in the school, I will be going door to door campaign,” he said.
Tshogpa candidate Ugyen from Dechencholing-Taba constituency said he has also got clearance from the ECB to start his campaign. “I will immediately start my campaign,” he said.