Court's ruling pointing to the wrong exit from crisis
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
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
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
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