LG: Two important stakeholders of democracy – the Election Commission of Bhutan (ECB) and the National Council (NC) – have clarified that members of Local Government (LG) are “declared elected” from the day the election results are declared, and not on the day they are administered oath.
This means that the notification issued on September 12 by the Department of Local Governance (DLG), Ministry of Home and Cultural Affairs, overrides the election Act and the LG members’ entitlement Act passed by Parliament.
The notification states: “The date on which the LG members are administered Oath or Affirmation of Office shall be the day on which a member is declared elected.” The day on which a member is “declared elected” is significant because his or her salaries are paid from that day.
The recently elected LG members were paid as per the notification.
However, according to the ECB, NC and some prominent lawmakers, LG members do not have to wait till the oath taking ceremony to be “declared elected”.
A day after the polls, the ECB reads out the names of the winning candidates in front of media persons and election officials. The names of the members-elect are also published in newspapers and broadcasted on TV. This, according to the ECB, is the official declaration that those members are duly elected.
While declaring the results through a notification, the ECB also declares through the same notification that the local government is duly constituted. The fact that the local government is “deemed to have been constituted” from that day also means that the members have been elected.
In an emailed response to Kuensel, the ECB cited Section 458 of the Election Act of 2008, which provides: “The Local Government concerned shall, on the issue of notification under section 457, be deemed to have been duly constituted.” This notification is issued on the next day of the poll day.
The ECB also cited Section 194 of the Election Act 2008, which provides: “The Dzongkhag Tshogdu, the Gewog Tshogde and the Thromde Tshogde, unless sooner dissolved, shall continue for five years from the date of the first sitting of the respective bodies.”
“These provisions spell out that the Local Government Functionaries are deemed to have been duly constituted after the declaration of results of elections from all demkhongs of a Local Government by the Election Commission and the five years’ term of office would be counted from the date of the first sitting,” the ECB stated.
NC Deputy Chairperson and spokesperson Tshering Dorji said: “A member of LG is declared elected from the day the ECB formally declares the result.” Citing the LG Members’ Entitlement Act 2015, he said the members should be paid from the day of the declaration of the results.
Section 7 of the entitlement Act states: “A member shall be entitled to salary, allowances, benefits and other emoluments from the day on which the member is declared elected.”
National Assembly (NA) member Dorji Wangdi said members are declared elected from the day ECB declares the result. “The laws are very clear and the precedence of interpretation and implementation has been established that way already on NA and NC MPs,” he said.
The MP said: “Going by that, the same should apply for LG members.” “So, I have no doubt at all that LG members should be considered declared elected one day after the poll and their entitlements provided from that day,” he added. “Oath taking ceremony is a mere ceremony.”
Lawmakers also say the implementing agencies should not be confused between the commencement of their five-year tenure and the commencement of their salaries.
NA member Tshewang Jurmi said that while the term starts from the first sitting, the salaries start from the day the ECB declares the results. “I am of the opinion that they will be paid from the date of declaration of election results.”
According to sources, the logic behind the laws that mandate the government to pay salaries even before taking office is that the members-elect are kept busy in preparation to taking office and conduct of other formalities as soon as the results are declared. Additionally, the LG is also deemed to have been constituted even before the members take oath.
The DLG in a statement issued to Kuensel on September 29, however, refuted that the notification violates any of the provisions of the election Act and the entitlement Act. Instead, the DLG stated, it harmonises the provisions of various Acts pertaining to the LG members being elected, the commencement of their entitlements and constitution of the LG.
The DLG stated Article 22, Section 15 of the Constitution which says that “The members of Local Governments shall take an Oath or Affirmation of Office, as provided for in the Third Schedule of this Constitution, before assuming their responsibilities”.
According to the DLG’s interpretation of this Article, “only upon assumption of the responsibilities and rendering of the public services, the public servants are provided the entitlements by the State”.
However, lawmakers say this argument does not hold water as this provision of the Constitution has no relation with the salary and perks of LG members. Specifically, this Article does not state that salaries can be paid only after assuming responsibilities.
To draw a parallel with Parliament, the Constitution states the same for MPs. Article 10, Section 18 states: “The members of Parliament shall take an Oath or Affirmation of Office, as provided for in the Third Schedule of this Constitution, before assuming their responsibilities.” Still, MPs are paid from the day of the declaration of the results, and this practice has been established over two parliamentary elections.
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. In fact, only a member who has been declared “duly elected” can receive certificate of election and take oath.
Some local leaders say the government owes them dues for salary.
Tsholingkhar gup Passang Thingh of Tsirang said the government should look into the matter and resolve it. “The government should intervene on our entitlement issue and pay the remaining portion of our salary,” he said.
Salaries for local leaders in Tsirang were paid from October 28. But the election results were declared on September 28.
Kinzang Tobgay, Kanglung mangmi of Trashigang also said the government and other relevant agencies should look into the issue. “Agencies should interpret the laws and resolve the issue,” he said.
In Pemagatshel, salaries were paid from October 18. Decheling gup Sonam Rinchen said the relevant agencies and the government should resolve the confusion.
However, some LG leaders are not aware of the laws and the issue. Gup Sangay Tshering of Chuzargang in Sarpang said members are entitled to salaries from the day of the first sitting, which according to the law is not. It is the tenure that commences from the first sitting.