Thai court's ruling pointing to the wrong exit from crisis

[webfact]

BURNING ISSUE
Court's ruling pointing to the wrong exit from crisis
Supalak Ganjanakhundee
The Nation

BANGKOK: -- The Constitutional Court's judgement to nullify the February 2 election was extremely counterproductive for legal interpretation, law enforcement and political development in Thailand. The court misinterpreted the Constitution and presented a wrong exit from the political crisis.

Referring to Article 245 (1) of the Constitution, the Ombudsman requested the Constitutional Court decide whether or not the election was unconstitutional.

The Ombudsman wrongly interpreted the Constitution in taking the case to the court since Article 245 (1) allows the Ombudsman to do so only when any laws involve questions of constitutionality. In short, the Ombudsman should ask the court whether the election decree is unconstitutional, rather than asking the court to nullify an election. The subject of the court's action should be the decree itself, not the election process.

Of course by logic, if the decree was unconstitutional, the election would be invalid. But there was nothing wrong with the decree. It was issued to call the election on February 2 and no single word in the law challenges the Constitution.

The court, by 6 to 3, decided that the election decree was unconstitutional because the Election Commission (EC) failed to hold the poll across the entire country on the same day, since eligible voters in 28 constituencies had not cast their ballots due to disruption by anti-government protesters.

The EC planned to hold the ballot casting later, but the court gave no chance, saying any voting would make the election happen on a day different from the original date set by the election decree.

Article 108 of the Constitution says the election day must be set on the same day throughout the Kingdom. The election decree indeed did not mention any other day for election other than February 2.

From a legal perspective, ballot casting is another matter - different from setting the election day. In fact, ballot casting could be done on different days. The Election Commission always holds advance voting and voting outside the constituency and outside the country a week before the election day. In such a case, no legal expert, judge or Ombudsman considered "that election [to be on] a different day". There has been consensus for nearly two decades that casting ballots can be done on different days and places as long as the result of the voting was not influenced. Casting ballots any day does not make any difference to the result of the election. The election is still valid.

The judgement last Friday posted a bad pointer to political stalemate. Nobody knows when the new election will take place and in what condition it could be valid. The protesters welcomed the court judgement but will not end the protest. Leader Suthep Thaugsuban said his group would disrupt the new election again unless it was held after the "country reform" he desires.

With well-intentioned collaboration of the court and other independent organisations that never deemed the election disruption to be illegal, the election in Thailand is now being held hostage by the protesters as a political bargaining chip. They said they would not allow an election unless their men were installed into power.

That meant the people of Thailand would not have a chance any more to use an election to reflect their free minds on changing and installing a new government to run the country.


-- The Nation 2014-03-26

[DirtFarmer]

With well-intentioned collaboration of the court and other independent organisations that never deemed the election disruption to be illegal, the election in Thailand is now being held hostage by the protesters as a political bargaining chip. They said they would not allow an election unless their men were installed into power.

That meant the people of Thailand would not have a chance any more to use an election to reflect their free minds on changing and installing a new government to run the country.

Might take issue with the first three words in that sentence but other than that "verdad".. follows Sutheps plan perfectly...

With well-intentioned....

Edited March 25, 2014 by DirtFarmer

[kriswillems]

I agree 100% with this article.

Any protesting group (red shirt, Suthep, yellow shirt, blue shirt ...) can now hold the whole country as a hostage by just preventing the election on a single place and on a single day.

Votes of millions of people will be discarded and in the end nobody will care to go to vote.

Edited March 26, 2014 by kriswillems

[Dr Bruce]

This slippery slope(Clarkson?) started when another court ruled that it was Suthep's democratic right to stop the country from exercising it's right to vote.

The (non) Independants agengcies have tied the country in knots because they are trying to get rid of the elected government and bring back the Amart.

Thailand is becoming a laughing stock

Edited March 26, 2014 by Dr Bruce

[chainarong]

In fairness why Feb 2nd , the elections should have been called at the max amount of days allowed under the Constitution or at a date suitable for all parties , that is the crux of this matter, now lets hold some meaningful elections, after August , no obstructions , democracy voting , no grenades or bullets being fired, elect a government , then lets piss that lot off and then form a reform panel without one parliamentarian , present or previous, no party hacks , all to be panel members to have a degree in Democracy or affinity with Democracy , lead by General Prayuth. That will cause some indjgestion

[Spalpeen]

This slippery slope(Clarkson?) started when another court ruled that it was Suthep's democratic right to stop the country from exercising it's right to vote.

The (non) Independants agengcies have tied the country in knots because they are trying to get rid of the elected government and bring back the Amart.

Thailand is becoming a laughing stock

.

Suthep a slippery slope.....I like that!

[ChrisY1]

Yingluk insisted that a snap election be held...no ifs and buts.

The EC has a massive logistical process to arrange a national election, and in my view, couldn't manage it.

They recommended not to hold the election at that time, but, as would be expected, their advice was ignored.

It's not difficult to understand really!

[ppmacready]

This slippery slope(Clarkson?) started when another court ruled that it was Suthep's democratic right to stop the country from exercising it's right to vote.

The (non) Independants agengcies have tied the country in knots because they are trying to get rid of the elected government and bring back the Amart.

Thailand is becoming a laughing stock

Sorry I don't agree with this sentence.

It should read IS!

[gabruce]

The conclusion from this article is that it's okay to having any number of polling dates set over any particular timespan. So the author would say that it's proper to set an election date and set any number of polling dates at any time. Next election let's have the EC set an election date, and then instead of having a nationwide poll, have one per week per province. Finish polling in three years. Why not?

Here is one spot where reform is badly needed. Some amendment to the constitution to tighten up elections.

Edited March 26, 2014 by gabruce

[noitom]

Complicit in the Thai circus.

[rickirs]

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Yingluk insisted that a snap election be held...no ifs and buts.

The EC has a massive logistical process to arrange a national election, and in my view, couldn't manage it.

They recommended not to hold the election at that time, but, as would be expected, their advice was ignored.

It's not difficult to understand really!

It is no secret that the Consitution formulated seven years ago required that national elections must be held within 60 days following the dissolution of the parliament.

But the Election Commission responded to Government plans to schedule the elections for November 2013 that the EC wasn't ready and requested the Government to defy the Constitution to schedule the elections later! When the Government said it will comply with the Constitution, the EC then insisted the Government must issue a royal decree to do so; thus, throwing the schedule of the election into the Constitutional Court. The Court accepted EC's complaint and finally ruled increditiously after the 60-day deadline and in defiance of the Constitution that any date was allowed so long as both the Government and EC concurred.

And then despite 90% of the polls having been made available for voting on the agreed upon Feb. 2, 2014 date, with the remaining 10% of the polls made available somewhat later by agreement between the Government and the EC, the Court nullified the Feb 2nd election but took no issue with advanced voting.

The Constitutional Court not only did not rule consistent with the Constitution, it did not rule even consistently with its own decisions and it physically inserted itself into the electorial process by delaying the election beyond the 60-day limitation. For there to be any stable political environment to exist in Thailand, its court system needs to put itself above political conflicts and focus solely on the law as defined by the Constitution. The current Court failed its duty and its dissolution should be considered for the benefit of all political parties.

[kurtgruen]

The idea of having elections on different dates, is for advance polling, for people who can't be there on the actual election day. On election day, the remaining ballads are supposed to be cast. That is how it works in most democracies, including Thailand. This wasn't done and therefore the elections were annulled.

This Nation writer is once again showing is IQ level, which seems to be at about the same level as a lot of the Red's.

[ThailandNoob]

Like another poster pointed out, where the courts screwed up was when they allowed Suthep to disrupt the election.

Sent from my IS11T using Thaivisa Connect Thailand mobile app

[sawadee1947]

This is the first time that I agree wit THE NATION. Somebody woke up probably watching a devastated country. No truth, no trust, co confidence, no democracy, no manners, no brain.

[Eric Loh]

6 for to 3 against. In a jury system, this verdict will not stand. Still good to see that the court practice some sort of popular voting system and reach a verdict. Something that Suterp will not accept in an elecion but he will accept the court popular voting verdict.

[Toscano]

This article in the Nation is right . To my way of thinking the Constitution needs rethinking and amending . The EC should be abolished and maybe the constitutional court .

Suthep is abusing the right of peaceful demonstration . To disrupt the elected government and running of the country , to undermine industry , foreign investment , tourism , is against the interests of Thailand and her people . I would call it Treason !!! The problem in Thailand is that high IQs are lacking in people who most need .

[airconsult]

A system without concepts of precedent is obviously an advantage for some.

Sent from my GT-N7000 using Thaivisa Connect Thailand mobile app

Edited March 26, 2014 by airconsult

[northernjohn]

I hope no one takes this personally it is just a statement of fact not an accusation but an election solving the political problems in Thailand is only believed by Idiots.

Every one knows it would just deepen and widen the gap.

[northernjohn]

This article in the Nation is right . To my way of thinking the Constitution needs rethinking and amending . The EC should be abolished and maybe the constitutional court .

Suthep is abusing the right of peaceful demonstration . To disrupt the elected government and running of the country , to undermine industry , foreign investment , tourism , is against the interests of Thailand and her people . I would call it Treason !!! The problem in Thailand is that high IQs are lacking in people who most need .

Are you suggesting he do it like the red shirts did in 2010?

I don't think that would happen. He has to much integrity to lower himself down to that level.

He is right up front with his demands for negotiation. He is not faking negotiations and then backing out of them when they are accepted.