The Nation with an article entitled “Election postponement possible if parties agree: EC”:

The Election Commission’s new team says it could delay the general election from the scheduled date of February 2 while political parties prepare for the judgement day. Meanwhile, the opposition Democrat Party remains undecided on whether to field candidates.

“We are willing to delay [the election] for three months, six months, one year to two years. But first things first: The political parties have to reach an agreement. The second thing is whether it [a delay] is allowed by the law. We, the EC, are the third factor,” EC member Somchai Srisuthiyakorn said.

Reasons to postpone

_ A poll can be delayed by 30 days via royal decree if there is civil unrest, floods, fire or other eventualities (according to Article 78 of the 2007 Constitution’s organic law on elections);

_ If the ballot papers are damaged or lost (according to Article 85 of the 2007 Constitution’s organic law on elections);

_ If only one candidate is elected in a constituency and receives less than 20 per cent of the total vote (according to Article 88 of the 2007 Constitution’s organic law on elections);

_ A constituency has no MP candidates;

_ The number of MPs is less than 95 per cent of 500 – the compulsory figure that is needed for the House of Representatives to convene (according to Article 93 of the Constitution).

The Bangkok Post:

The general election scheduled for Feb 2 could be postponed under Section 187 of the constitution, according to Jade Donavanik, dean of the Graduate School of Law at Siam University.

Mr Jade said the election was called with a royal decree under Section 108 of the constitution, but Section 187 could be used to postpone it to a later date if all parties concerned agree there may be problems with holding it on Feb 2.

Mr Jade said he personally believes the election should be postponed by another royal decree under Section 187 of the constitution.

BP: Will deal with the “reasons to postpone”, but first the Constitution:

Section 108. The King has the prerogative to dissolve the House of Representatives for a new election of members of the House.

The dissolution of the House of Representatives shall be made in the form of a Royal Decree in which the day for a new general election must be fixed for not less than forty-five days but not more than sixty days as from the day the House of Representatives has been dissolved and such election day must be the same throughout the Kingdom.

The dissolution of the House of Representatives may be made only once under the same circumstance.

Section 187. The King has the prerogative to issue a Royal Decree which is not contrary to the law.

BP: So how can a Royal Decree be issued under Section 187 which delays an election beyond the 60 days not be contrary to the law? Who will submit the decree to the King? BP understood the executive is involved in this, will their actions then be held unconstitutional? Basically, the Court would not have to review it and consider it.

On the postponing, this is for individual constituency elections and not for the general election as a whole:

Section 78 In the case where the polling at any polling station could not be made because of the riot, flood, fire, force majeure or another case of necessity (“เหตุสุดวิสัยหรือเหตุจําเป็นอย่างอื่นหรือด้วยความจําเป็นตามสภาพที่อาจมีผลต่อความปลอดภัย), if such event has occurred prior to the election day, the Committee of polling station shall determine a new polling place where the voters shall be able to cast a vote conveniently. If the new polling place cannot be determined, the Committee of polling station shall announce the cancellation of vote-casting in such station and shall forthwith report such incident to the Election Commission. In the case where an incident under paragraph one occurs on the election day, the Committee of constituency or the Committee of polling station shall announce the cancellation of the vote-casting in such station and report such incident to the Election Commission urgently.

The Election Commission shall forthwith determine a new polling day of such polling station or decide differently in accordance with the rules and procedure prescribed by the Election Commission. In carrying out the action under paragraph three, if the Election Commission is of the opinion that it cannot act in such a way to comply with the provisions of Section 8, it shall provide a new vote-casting for such polling station as appropriate without having to conform to the time limit as prescribed in paragraph three.

BP: So a type of natural disaster and we can delay at specific polling stations until polling can take place although we will have to leave it up to the court what “another case of necessity” means, but it is difficult to interpret this broadly as we are talking about things which prevent voting from taking place. For example, a bunch of BMWs surrounding a polling station and people doing other things to prevent people from voting. Another issue that BP could imagine was if there was a very special time of national mourning, but it is hard to stretch even this to 18 months.

Section 85 If the vote-counting at any polling place cannot be carried out or completely achieved due to riot, flood, fire, force majeure or another case of necessity, or to preserve security, the Committee of polling station shall announce the cancellation of the vote-counting for such polling station and forthwith report the incident to the Election Committee of constituency, the Election Committee of Changwat and the Election Commission in order to allow the Election Committee of Changwat to urgently determine the date, the time and the place intended for the vote-counting unless otherwise determined by the Election Commission. The preservation of the ballot papers, the ballot box and documents relating to the election as well as the method to re-count votes shall be under the rules and procedure prescribed by the Election Commission.

BP: This is about counting – one assumes this is a natural disaster or incidents which takes place just as polling closes and the process for counting the votes; it is not related to postponing of voting.

Section 88 In any constituency, if, on the election day, the number of candidate or candidates standing for an election on a constituency basis is equivalent to or less than the total number of Members of the House of Representatives of that constituency, a candidate in such constituency is elected only when he or she receives votes of not less than twenty percent of the total number of voters in that constituency and more than the total number of ballot papers casting a non-voting. In the case where such candidate has received votes of less than twenty percent of the total number of voters in that constituency or not more than the total number of ballot papers casting a non-voting, the Election Commission shall order a new election only for the positions having received votes of less than twenty percent of the total number of voters or not more than the total number of ballot papers casting a non- voting. The provisions of Section 9 shall apply mutatis mutandis.

BP: So another by-election, but not postponing the general election.