Constitutional Court refuses to rule on legality of February 2 election

[Crushdepth]

Anyone seen a better interpretation of the ruling? Does this mean the court didn't think it had the authority to rule on this petition? Or that it threw the petition out (which would presumably mean the election is valid).

[rickirs]

I can not see how this has any thing to do with the legitimacy of the election, but more to do with the legitimacy of serving/former ministers of government, and an attempt to disqualify them from public office.

I can not see this voiding the general election, but if any person disqualified has been elected, it would require by-elections.

And the court refused to rule until they have heard from expert witnesses.

Expert witnesses are related to the legality of the Bt2-trillion borrowing bill, not the Feb. 2nd election which they have alreday ruled on.

[rickirs]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

Yes ever since the election you have been banging on in post after post that the election will be anulled under article 108. Yet your yellow friends didn't think that section merited a court challenge at all, so you ought to admit you were wrong. And there won't be any filing under 108 because they will look more ridiculous than they already are. They went for article 68 and the CC said it wasn't interested.

Now tell us who you think will be appointed PM on April 1st if article 7 is invoked.

The PM is elected by a majority of the House, not appointed as you have written. In order for the House to do this, there has to be at least 475 elected MP's on April 1st. There won't be. That is the vacuum that Scamper is discussing.

From a legal standpoint, let's see how this plays out

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Is it April Fool's day yet? Completion of the elections will occur in March which according to Western Calendars comes before April.

[ratcatcher]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

Yes ever since the election you have been banging on in post after post that the election will be anulled under article 108. Yet your yellow friends didn't think that section merited a court challenge at all, so you ought to admit you were wrong. And there won't be any filing under 108 because they will look more ridiculous than they already are. They went for article 68 and the CC said it wasn't interested.

Now tell us who you think will be appointed PM on April 1st if article 7 is invoked.

The PM is elected by a majority of the House, not appointed as you have written. In order for the House to do this, there has to be at least 475 elected MP's on April 1st. There won't be. That is the vacuum that Scamper is discussing.

From a legal standpoint, let's see how this plays out

Sent from my iPad using Thaivisa Connect Thailand

Is it April Fool's day yet? Completion of the elections will occur in March which according to Western Calendars comes before April.

Right you are:

http://www.thaivisa.com/forum/topic/703200-fresh-election-will-not-happen-in-march/

BANGKOK: -- Fresh election for the 28 constituencies where election could not take place on February 2 will not be staged in March as it will too close to the Senate election scheduled on March 30, Election Commissioner Somchai Srisutthiyakorn said today (Sunday).

However, he insisted that the Election Commission had no authority to set the election date which should be the government’s responsibility.

[rickirs]

The Constitutional Court obviously can't make a judgement on an election that is not yet completed.

The (care)taker government obviously have enough other things to worry about at the moment: unravelling rice scheme, angry farmers, proposed indictment of Yingluk, lacklustre support even in their strongholds. So I can imagine the Constitutional Court thinks it's more prudent to sit back and watch them create even more problems for themselves, rather than throw them a life-line by declaring the elections invalid and letting them try again.

The issue before the court was whether the election of Feb. 2nd was valid, not whether it was complete. And plaintiff argued it was not valid regardless of any turnout. The Court rejected the argument by refusing to hear it. End of issue. Constitutional decision by the Constitutional Court.

[rickirs]

....I thought it had already been deemed invalid and illegal....

Only by Suthep who throught for a moment that he was still Deputy PM.

[rickirs]

Anyone seen a better interpretation of the ruling? Does this mean the court didn't think it had the authority to rule on this petition? Or that it threw the petition out (which would presumably mean the election is valid).

It threw the petition out which means the election is valid. This is a procedure common to any level of courts.

[Thait Spot]

2. It wasn't Abhisit that raised this.

Really? Then who did? Abhisit is the leader and chairman of the Democrat party. You think a Democrat party lawyer can file a lawsuit in the name of the Democrat party without the leader approving it?

Yes.

Its not the Barbie and Ken club.

It wasn't Abhisit. Accept your error and move on to the next one

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

[Thait Spot]

....I thought it had already been deemed invalid and illegal....

Yingluck would like nothing more than that

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[casualbiker]

Anyone seen a better interpretation of the ruling? Does this mean the court didn't think it had the authority to rule on this petition? Or that it threw the petition out (which would presumably mean the election is valid).

It threw the petition out which means the election is valid. This is a procedure common to any level of courts.

It also means another petition can be lodged!

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[Gweiloman]

....I thought it had already been deemed invalid and illegal....

Only by Suthep who throught for a moment that he was still Deputy PM.

and those keyboard lawyers who jumped the gun declaring universally and unconditionally that the elections would be ruled invalid. Nice to see hats being eaten.

[ShannonT]

2. It wasn't Abhisit that raised this.

Really? Then who did? Abhisit is the leader and chairman of the Democrat party. You think a Democrat party lawyer can file a lawsuit in the name of the Democrat party without the leader approving it?

Yes.

Its not the Barbie and Ken club.

It wasn't Abhisit. Accept your error and move on to the next one

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

Lucky it's not the dictators club either, so I am still entitled to an opinion, as are you. Whether it is right or wrong is neither for you or me to decide. Your inability to accept that other people might have a different opinion is worrying however.

[Arkady]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

You are right. Filing a petition under Section 68 in legal terms seems like a long shot or an attempt at a short cut. The government was under a legal obligation to set an election date within 60 days of dissolving parliament. Thus without substantive evidence that it set out to subvert the democratic system under the constitutional monarchy this was pretty much a non-starter. The angle that the emergency decree was used to influence the results could have some merit due to the censorship provisions and inability to conduct gatherings but that has already been tried without success and there are precedents of elections and referenda being held with parts of the country under emergency decree under the current consitution and its provisional predecessor.

Section 108 is a much more thorny issue but how this will be approached legally will depend on how the stand off between the government and the EC is resolved re the registration of candidates in the 28 constituencies with none. Re-opening registrations looks unconstitutional because the the organic law requires that registrations must be closed within 20 days of the dissolution of parliament and there is no legal mechanism to re-open them. A new royal decree to fix a new election date for those constituencies is technically not permitted because the constitution only permits a royal decree to dissolve parliament and fix an election date simultaneously and this has already been done. If the government issues a new royal decree, it would be arguable whether it is legal or not. But most likely the court would rule that it is OK but has the effect of annulling the first decree and the elections along with it. With no royal decree the EC will not re-open candidate registrations, unless the court rules that it is OK to do so which seems unlikely. Since this is all very involved with a number of uncertainties and could take some time, it seems likely that the attempt to use Section 68 was indeed an attempt to short cut the process without much hope of success. It was probably thought best to get it out of the way first, to eliminate that possibility clearly in the minds of all legal protagonists.

I am not quite sure about the 30 day limit after the elections to form a parliamentary quorum and 30 days thereafter to elect the PM. It could be implied that the caretaker government no longer has validity after that but this is not clearly specified in the constitution. The court could rule that by default the caretaker government continues in office until a new government can be formed despite these overt time limits.

[tingtongteesood]

Sorry Abhisit, looks like you lost. On top of that, because you didn't participate in the elections, you will have no parliamentary immunity during your murder trial.

Exactly. Abhisit and Suthep were banking on a cancelled election. They rolled the dice and lost. 99% of Thailand can't wait to see these corrupt, murderous rats behind bars.

99% of Thailand can't wait to see these corrupt, murderous rats behind bars.

Taksin was convicted of murder too ? When did that happen ?

Suteb and Abisit DID NOT, I repeat DID NOT murder anyone. Unlike Taksin who is a convicted fugitive hiding in the desert, Suteb and Abisit have not been convictred of anything. Except to the red sheeple like you anyone you dislike is guilty until proven innocent I guess....

The red shirts in 2010 were killed by soldiers who were forced to act due to the riots and killings that had already happened, nobody to blame but Taksin, the red leaders, the red media and the sheeple who believed all the crap they were fed by the aforementioned and decided to fight with heavy weapons in the name of the convicted fugitive. The army's action was well warranted and very necessary - whether you sheeple like it or not.

Now lets kindly stick to the facts please and keep the hyperbolic <deleted> to yourselves.

[tingtongteesood]

....I thought it had already been deemed invalid and illegal....

Only by Suthep who throught for a moment that he was still Deputy PM.

and those keyboard lawyers who jumped the gun declaring universally and unconditionally that the elections would be ruled invalid. Nice to see hats being eaten.

I am not eating anything yet, the election still has time to be ruled invalid and it will.

[mightyatom]

I think there is more to this than meets the eye.

It is interesting to me that the CC refuses to rule on the legality as opposed to ruling the elections constitutional and therefore valid. Could it be some sort of a devious way to prevent invoking a "double jeopardy" sort of situation? Is the CC telling the Dem's that they should still file an action but not under Article 68?

I would say that you are the most accurate so far.

The CC only ruled the petition out on grounds in 'insufficient evidence'.... meaning that the election can not be voided yet because the election process is still incomplete.

Once the advance voting is completed (and we all know exactly how that is going to pan out..... massive no vote). This only leaves constituencies with zero candidates.

Then resubmit a new petition saying that the election is impossible to choose a government and convene the house.

The CC will have no other choise than to void the election as a failed process.

This then paves the way for a new royal decree to set up new elections.

Of course all this will happen after April 1st and by then the farmers will have been pushed over the edge, and of course 'other' court rulings with be completed, and impeachments likely handed out.

[tingtongteesood]

Really? Then who did? Abhisit is the leader and chairman of the Democrat party. You think a Democrat party lawyer can file a lawsuit in the name of the Democrat party without the leader approving it?

Yes.

Its not the Barbie and Ken club.

It wasn't Abhisit. Accept your error and move on to the next one

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

Lucky it's not the dictators club either, so I am still entitled to an opinion, as are you. Whether it is right or wrong is neither for you or me to decide. Your inability to accept that other people might have a different opinion is worrying however.

Yes, you are right, luckily dictator Thaksin was thwarted by the protestors so we are ok to make opinions for the time being.

We can all accept that people have different opinions, that is ok. It is the vitriolic hyperbole and well complete rubbish that a lot of the red sheeple spew, the same crap every day that some of us are starting to get irritated by..,.

[Gweiloman]

....I thought it had already been deemed invalid and illegal....

Only by Suthep who throught for a moment that he was still Deputy PM.

and those keyboard lawyers who jumped the gun declaring universally and unconditionally that the elections would be ruled invalid. Nice to see hats being eaten.

I am not eating anything yet, the election still has time to be ruled invalid and it will.

"to be ruled invalid and it will"

Pray tell oh mighty keyboard lawyer, on what grounds do you base your assertion?

[Gweiloman]

Yes.

Its not the Barbie and Ken club.

It wasn't Abhisit. Accept your error and move on to the next one

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

Lucky it's not the dictators club either, so I am still entitled to an opinion, as are you. Whether it is right or wrong is neither for you or me to decide. Your inability to accept that other people might have a different opinion is worrying however.

Yes, you are right, luckily dictator Thaksin was thwarted by the protestors so we are ok to make opinions for the time being.

We can all accept that people have different opinions, that is ok. It is the vitriolic hyperbole and well complete rubbish that a lot of the red sheeple spew, the same crap every day that some of us are starting to get irritated by..,.

"the vitriolic hyperbole and well complete rubbish"

Sadly, some yellow / pro-reform sheeple are no better, don't you agree?

[Basil B]

Anyone seen a better interpretation of the ruling? Does this mean the court didn't think it had the authority to rule on this petition? Or that it threw the petition out (which would presumably mean the election is valid).

It threw the petition out which means the election is valid. This is a procedure common to any level of courts.

This petition was thrown out, but no doubt there will be more...

And if any are successful then they will be appealed.

this could go on for years.

[Old Man River]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

Yes ever since the election you have been banging on in post after post that the election will be anulled under article 108. Yet your yellow friends didn't think that section merited a court challenge at all, so you ought to admit you were wrong. And there won't be any filing under 108 because they will look more ridiculous than they already are. They went for article 68 and the CC said it wasn't interested.

Now tell us who you think will be appointed PM on April 1st if article 7 is invoked.

The PM is elected by a majority of the House, not appointed as you have written. In order for the House to do this, there has to be at least 475 elected MP's on April 1st. There won't be. That is the vacuum that Scamper is discussing.

From a legal standpoint, let's see how this plays out

Sent from my iPad using Thaivisa Connect Thailand

Is it April Fool's day yet? Completion of the elections will occur in March which according to Western Calendars comes before April.

Right you are:

http://www.thaivisa.com/forum/topic/703200-fresh-election-will-not-happen-in-march/

BANGKOK: -- Fresh election for the 28 constituencies where election could not take place on February 2 will not be staged in March as it will too close to the Senate election scheduled on March 30, Election Commissioner Somchai Srisutthiyakorn said today (Sunday).

However, he insisted that the Election Commission had no authority to set the election date which should be the government’s responsibility.

RC, this link says they will not happen March, as it is too close to the Senate elections.

Today, I read April. I would give you the link, but it mentions the other newspaper.

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[96tehtarp]

They would have ruled on it if there was any way they could legally have done so.

You prefer your judges to rule illegally?

Of I course I don't, and they dare not.

[Crushdepth]

Not often you have half the country voting , with the other half having no candidates, there would be no previous experience of this , it is a constitutional nightmare, the rule in effect should be election null and void, as the country should all go to the polls at the same time and end at the same time , excluding absent and postal voting.

The election was called like any other election,

All had the same right to vote, those that did not choose to vote, (made a personal decision not to vote) which is within the rights of all people in a democratic society.

The PDRC violated the law when it blocked voter from voting on election day, those people get to vote in a reschedule election.

The Democrat party made a conscious decision to boycott the election, and actively joined the protest, that was lead by (9) elected in 2011 members of the Democrat party.

Historically elections always are held on 3 different days in Thailand, Re: (1) The early voting (2) national election (3) Bye election, while the constitution considered that as voting on the same day, as was done in the 2011 election!

Nothing unconstitutional about how the election was held

Those that made a conscious choice not to vote or run for office should have no right to complain.

Cheers

Just collect your PTP rice subsidy (if you can) and be happy. No need to be concerned that they are dividing Thai society and plundering the country, your family got its cash so all is well in Thailand.

[Emptyset]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

You are right. Filing a petition under Section 68 in legal terms seems like a long shot or an attempt at a short cut. The government was under a legal obligation to set an election date within 60 days of dissolving parliament. Thus without substantive evidence that it set out to subvert the democratic system under the constitutional monarchy this was pretty much a non-starter. The angle that the emergency decree was used to influence the results could have some merit due to the censorship provisions and inability to conduct gatherings but that has already been tried without success and there are precedents of elections and referenda being held with parts of the country under emergency decree under the current consitution and its provisional predecessor.

Section 108 is a much more thorny issue but how this will be approached legally will depend on how the stand off between the government and the EC is resolved re the registration of candidates in the 28 constituencies with none. Re-opening registrations looks unconstitutional because the the organic law requires that registrations must be closed within 20 days of the dissolution of parliament and there is no legal mechanism to re-open them. A new royal decree to fix a new election date for those constituencies is technically not permitted because the constitution only permits a royal decree to dissolve parliament and fix an election date simultaneously and this has already been done. If the government issues a new royal decree, it would be arguable whether it is legal or not. But most likely the court would rule that it is OK but has the effect of annulling the first decree and the elections along with it. With no royal decree the EC will not re-open candidate registrations, unless the court rules that it is OK to do so which seems unlikely. Since this is all very involved with a number of uncertainties and could take some time, it seems likely that the attempt to use Section 68 was indeed an attempt to short cut the process without much hope of success. It was probably thought best to get it out of the way first, to eliminate that possibility clearly in the minds of all legal protagonists.

I am not quite sure about the 30 day limit after the elections to form a parliamentary quorum and 30 days thereafter to elect the PM. It could be implied that the caretaker government no longer has validity after that but this is not clearly specified in the constitution. The court could rule that by default the caretaker government continues in office until a new government can be formed despite these overt time limits.

The PDRC certainly seem to be angling for use of Section 7 as Scamper indicates. In fact, other than a military coup, that's their only hope. I was just reading Jonathan Head's tweets and he mentions this:

Jonathan Head ‏@pakhead Feb 11

@jeffbkkjeff If EC refuses to hold elections we have paralysis. PDRC side is openly looking for angles to oust govt, install temp PM a la

Jonathan Head ‏@pakhead Feb 11

@jeffbkkjeff Anand 1991/2. They keep talking about March, when elected Senators terms end, as an opportunity. The legalities leave me lost.

So as I understand it, Article 7 means under certain conditions, e.g. a political vacuum, *someone* could propose a PM and request royal assent. Who determines what constitutes a political vacuum? Is it the Constitutional Court? The Senate? Some combination? I believe the plan might be to have the Senate vote for a candidate and send the name for the King's signature. This will surely be open to legal challenge. What relevance does the elected Senators term ending have though? I believe the head of the Senate is pro-Thaksin. Maybe he has to power to block such a move and they're waiting until there are appointed Senators only left. Then you have the NACC charges against 50 pro-PT Senators, how does that affect things?

And when does the constitution's provision that PM must be an MP cease to be applicable? As you say, Arkady, much of this is constitutionally ambiguous and will be open to legal challenge. But if it's left to the CC to decide, I guess I wouldn't have much hope for PT's chances. The CC could well cite 1991 as a precedent. After all, they cited 2006 as a precedent for a delayed election, despite the fact that election was annulled, not delayed.

[webfact]

Petition on poll rejected
The Nation

Constitutional Court does not see merit in Democrat plea against February 2 election

BANGKOK: -- The Constitutional Court yesterday rejected a Democrat Party petition to nullify the February 2 election, saying the court found no merit to hear the case.

The election, though not completed, could not be considered as an unconstitutional way to acquire power to rule the country, the court said.

"The case is not admissible as Article 68 of the Constitution is not applicable in this case," it said. Former Democrat MP Wirat Kalayasiri had earlier asked the court to invalidate the snap election on the ground that it was not held completely across the country within one day.

Wirat's petition said that caretaker Prime Minister Yingluck Shinawatra wanted to use the election to whitewash her corruption and misconduct. She wanted the election to justify her return to power, he said.

The petition said the government had insisted on holding the election despite knowing the poll would not be valid. The petition also said holding an election during a state of emergency could not be deemed free and fair as it would give the ruling Pheu Thai Party the upper hand. However, the decision by the court yesterday not to accept the petition will not close the door on other petitions to nullify the election, as the poll process is still far from completed.

Wirat said after the court ruling that the Election Commission should take the complaints over the election's validity raised by himself and Senator Paiboon Nititawan to the Constitutional Court. "If the court nullifies the election, the political crisis will be over and other actions, such as dissolution of the Pheu Thai Party, could be taken," he said. The EC has set April 20 as the new election date for voters who failed to cast their ballots in advance voting on January 26, and April 27 for voting in the constituencies, which were blocked from the February 2 election. The EC, however, remains unsure whether it has the legal authority to set the new election date. It will ask the government to issue a new Royal Decree to set the new election date for the remaining 28 constituencies.

"It is still difficult to have the election completely done, but we have to set the date for voting to show that we are working to solve the problem," said EC chairman Supachai Somcharoen. "It would be a waste of budget if we set a new date but the polls again cannot be held due to disruptions in the eight southern provinces."

The EC failed to hold the election in the entire country on February 2, as anti-government protesters blocked the ballot process and disrupted it in many provinces. The South is the stronghold of the Democrat, which boycotted the election.

Asked if the situation would improve in late April to enable the election, Supachai said the delay would allow conflicting parities to have time to think about the situation and seek a way to compromise.

Democrat spokesman Chavanont Intarakomalyasut said fixing a new election date was against the Constitution, which says the election must be held in the entire nation within one day.

Pheu Thai spokesman Promphong Nopparit said the EC move to set a new election day was part of a conspiracy to topple the government as it opened another chance for the Democrat Party and the protesters to bring the case to the Constitutional Court to invalidate the election and later shift the blame on the government.


-- The Nation 2014-02-13

[Thormaturge]

Seems fairly typical for Thailand.

Rather than think things through just keep trying different random ideas until, just maybe, you get lucky and one works.

[spirit47]

Look like my wife, make easy case difficult, and difficult case easy, cant decide...

Election not succesful, hold in a state of emergency, not at the same day, some results public and discuss before finished, mass protests and closed polling stations, what they waiting for...

If they dont have the balls for speak right, they should resign, Im strongly boring about this stupid game, like 50% of the Thais too...They all playing on time, to take care that sick system of corruption and patronage. While the Government have all time on the world to clear away evidence, with police forces in the back.

[LevelHead]

I can see Abhisit getting nervous now. He was so sure the court would find the election unconstitutional.

Abhisit is fine so far. You will only see him worried if its nearing April 20th and advance voting for the re-run of failed Feb 2nd elections are about to take place, that will mean he has lost.

This ruling was expected - to try to justify to the world that the CC is fair and not in bed with Suthep and his backers.

The problems start on March 3rd.

The Military Junta and their Elite backers changed the Senate from being democratic and 100% elected - to being undemocratic where 50% are appointed good people (friends) of the Elite and 50% are elected. The terms of the elected Senators ends on March 3rd and the new Senate election is on March 30th.

During this period of time only the appointed (Suthep lovers) are in the Senate and there are no democratically elected Senators............which is the time at which strange things might start to happen.

All in my opinion of course

[LevelHead]

The petition was filed under Article 68, which clearly the Constitutional Court felt wasn't strong enough a case. The petition ought to have been filed under Article 108 - as that is the one that talks about an election's fixed date within the 45 to 60 day parameter. There will doubtless by a filing of a petition to the Constitutional Court under the directive of Article 108. Article 7 is set to be activated on April 1 when the parliament that failed to achieve a quorum in 30 days, will have failed to nominate a prime minister in the following 30 days. On April 1 a political vacuum will have officially taken place. Article 7 addresses the possibility of a political vacuum.The administration is at that point stripped of its caretaker status. It will officially no longer be in power. Article 7 concerns the appointing of a new prime minister, under a specific set of provisions.

You are right. Filing a petition under Section 68 in legal terms seems like a long shot or an attempt at a short cut. The government was under a legal obligation to set an election date within 60 days of dissolving parliament. Thus without substantive evidence that it set out to subvert the democratic system under the constitutional monarchy this was pretty much a non-starter. The angle that the emergency decree was used to influence the results could have some merit due to the censorship provisions and inability to conduct gatherings but that has already been tried without success and there are precedents of elections and referenda being held with parts of the country under emergency decree under the current consitution and its provisional predecessor.

Section 108 is a much more thorny issue but how this will be approached legally will depend on how the stand off between the government and the EC is resolved re the registration of candidates in the 28 constituencies with none. Re-opening registrations looks unconstitutional because the the organic law requires that registrations must be closed within 20 days of the dissolution of parliament and there is no legal mechanism to re-open them. A new royal decree to fix a new election date for those constituencies is technically not permitted because the constitution only permits a royal decree to dissolve parliament and fix an election date simultaneously and this has already been done. If the government issues a new royal decree, it would be arguable whether it is legal or not. But most likely the court would rule that it is OK but has the effect of annulling the first decree and the elections along with it. With no royal decree the EC will not re-open candidate registrations, unless the court rules that it is OK to do so which seems unlikely. Since this is all very involved with a number of uncertainties and could take some time, it seems likely that the attempt to use Section 68 was indeed an attempt to short cut the process without much hope of success. It was probably thought best to get it out of the way first, to eliminate that possibility clearly in the minds of all legal protagonists.

I am not quite sure about the 30 day limit after the elections to form a parliamentary quorum and 30 days thereafter to elect the PM. It could be implied that the caretaker government no longer has validity after that but this is not clearly specified in the constitution. The court could rule that by default the caretaker government continues in office until a new government can be formed despite these overt time limits.

The PDRC certainly seem to be angling for use of Section 7 as Scamper indicates. In fact, other than a military coup, that's their only hope. I was just reading Jonathan Head's tweets and he mentions this:

Jonathan Head ‏@pakhead Feb 11

@jeffbkkjeff If EC refuses to hold elections we have paralysis. PDRC side is openly looking for angles to oust govt, install temp PM a la

Jonathan Head ‏@pakhead Feb 11

@jeffbkkjeff Anand 1991/2. They keep talking about March, when elected Senators terms end, as an opportunity. The legalities leave me lost.

So as I understand it, Article 7 means under certain conditions, e.g. a political vacuum, *someone* could propose a PM and request royal assent. Who determines what constitutes a political vacuum? Is it the Constitutional Court? The Senate? Some combination? I believe the plan might be to have the Senate vote for a candidate and send the name for the King's signature. This will surely be open to legal challenge. What relevance does the elected Senators term ending have though? I believe the head of the Senate is pro-Thaksin. Maybe he has to power to block such a move and they're waiting until there are appointed Senators only left. Then you have the NACC charges against 50 pro-PT Senators, how does that affect things?

And when does the constitution's provision that PM must be an MP cease to be applicable? As you say, Arkady, much of this is constitutionally ambiguous and will be open to legal challenge. But if it's left to the CC to decide, I guess I wouldn't have much hope for PT's chances. The CC could well cite 1991 as a precedent. After all, they cited 2006 as a precedent for a delayed election, despite the fact that election was annulled, not delayed.

Article 7 at the moment is a no go. Instructions have been handed down that elections must happen and any attempts to invoke article 7 will be rejected.

The PDRC and their backers game plan is to stifle government, put the country on hold, show the countries economy being effected, make life for many people bad - and then go back and seek approval to proceed with article 7 (they cannot proceed until they know it will be approved).

You will see the pro-PDRC media running stories of poor farmers, farmers committing suicide (real or not).............. this is all part of their propaganda to try to gain approval for the use of Article 7.

But as I said, at the moment it is "no go".

The world must support the government of Thailand and support Democracy and apply pressure that Article 7 should not be allowed and it will be a very big black mark against all those involved in it.

The completion of the Feb 2nd elections IS THE ONLY WAY to resolve this present situation, along with criminal convictions of all protestors who broke the law to set precedent that in future - nobody can break the law.

If there is no amnesty for anyone, its means, no amnesty for anyway, be they PDRC law breakers or whoever.

All in my opinion of course.

Edited February 13, 2014 by LevelHead

[Arkady]

Another reason for the long short attempt to use Section 68 was that it would likely have had a "jackpot" effect by leading to the dissolution of Pheua Thai and loss of political rights for its executive for 5 years.

Section 7 is a very nebulous clause:

"Section 7. Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as Head of the State."

It is open to interpretation to allow virtually anything or it could be deemed as merely decorative, not permitting anything in particular. Personally I see it as vestigial, harking back to clauses in earlier constitutions that the constitution drafters felt were useful in resolving crises but not wishing to be so explicit when they were drafting the 1997 "People's Constitution". Section 7 was carried over to the 2007 constitution with no change in the wording. The 1972 constitution, which was drafted after a coup by Field Marshall Thanom against his own government, explicitly allowed the King to appoint a PM and this power was used in 1973 to appoint Sanya Dharmasakti after Thanom had fled the country following his unsuccessful efforts to suppress the student revolution with brute force. Perhaps the judges will seize on this type of example to define "constitutional practice in the democratic regime of government with the King as Head of the State". However, using the precedent of something that took place under a very different constitution is an awkward and rather circular legal argument. The precedent cited by the court relating to delayed (or annulled) elections in 2006 is more understandable since the 2007 constitution is largely a derivative of the 1997 constitution under which those events took place.

Personally I think we seem to be heading towards a situation that is not explicitly covered in the constitution and will require the judges to effectively write law, rather than interpret it. The solutions wished for by both sides are not explicitly permitted in the constitution: either slugging it out indefinitely with re-registration of candidates and new electoral rounds until a parliamentary quorum can be achieved, or using Section 7 to appoint an unelected PM. Regarding the latter point I suppose the issue of the PM not being an MP would be a minor point, if the judges rule that a PM can be appointed outside parliament. Meanwhile the clock is ticking on the cases against the PM over the rice pledging and the MPs and senators who supported the Senate Reform Bill that was rule unconstitutional by the court. The court is also due to rule on the constitutionality of the B2.2trn borrowing bill which seems on the face of it to be unconstitutional, since it bypasses the budgetary process provided for in the constitution. Impeachment and criminal proceedings against virtually the entire Pheua Thai Party could lead to a situation without even a caretaker government, whereby the Constitutional Court is forced to adjudicate the country's way out of a vacuum. This would of course lead to accusations of a "judicial coup" and the vicious circle would likely start again. So some sort of negotiated settlement is the only viable solution.