Why governments should not be able postpone an election unilaterallyBy Bangkok Pundit Jan 21, 2014 10:00AM UTC
BP has already blogged that the Constitution makes clear that the royal decree must set an election date between 45-60 days of the election.* However, it is possible to delay voting in individual polling stations for reasons of necessity, for natural disasters, etc.
This has since been confirmed. The Bangkok Post:
The Council of State, the government’s legal arm, insisted yesterday it would be impossible to postpone the upcoming general election.
Council secretary-general Chukiat Rattanachaicharn said Section 108 of the constitution requires that the election be organised within 60 days of the House dissolution, or by Feb 6.
The poll has been set for Feb 2.
It would therefore be impossible to amend the royal decree on the election to allow the polls to be arranged at a later time, Mr Chukiat said.
Any move to change the election date would violate the constitution, he added.
ThaiPBS (ignore the misleading headline which seemingly suggests the election as a whole can be postponed):
The Council of State has ruled that the Election Commission is authorized to postpone the election on certain polling units where election cannot be held on schedule.
Informed sources said that the government consulted the Council of State whether the February 2 election could be postponed or not after the Election Commission asked the government to consider putting off the election to ease political tension.
According to the ruling, if an election at any polling units cannot be held because of riot or any Act of God, the EC can stage an election within seven days after the end of the riot or any Act of God which has rendered the polling impossible.
BP: However, since then we have had election candidate registration and in 28 out of the 375 constituencies there are no candidates and the recent violence. Will this matter? More on that soon.
There have been some statements that it is possible to delay an election. The Nation quoting Abhisit:
Democrat Party leader Abhisit Vejjejiva, whose party boycotted the election, said the government and Election Commission should reach an agreement on the date of the election before discussing it with others. “It’s useless for the prime minister to preside over a meeting of 70 people. The meeting would create more differences and conflict,” he said.
“[Yingluck's] brother did all this in the past, issuing a new election decree, taking leave from the caretaker PM’s post – you name it. But if the PM insists on what she told the UN secretary-general that she has no power, she doesn’t have to invite anybody to discuss this, but let the EC decide.”
BP: The Constitution Court stated (PDF) at the end of its judgment after declaring the April 2006 election void that “therefore, the organisations with the related powers and duties in specifying the election date for the House of Representatives for a general election as a result of dissolution shall proceed to issue a decree amending the date specifying the election date for the House of Representatives as a general election [and] to specify the election date of the House of Representatives as a general election within 60 days of the decree being in effect” (ดังน้ัน จึงให้องค์กรที่มีอํานาจหน้าที่เกี่ยวข้อง กับการกําหนดวันเลือกต้ังสมาชิกสภาผู้แทนราษฎรเป็นการท่ัวไปอันเนืองมาจากการยุบสภา ผู้แทนราษฎรดําเนินการให้มีพระราชกฤษฎีกาแก้ไขเพิ่มเติมกําหนดวันเลือกต้ังสมาชิกสภาผู้แทน ราษฎรเป็นการเลือกต้ังทั่วไปโดยกําหนดวันเลือกต้ังสมาชิกสภาผู้แทนราษฎรเป็นการเลือกต้ังทั่วไป ภายในหกสิบวันนับแต่วันที่พระราชกฤษฎีกาดังกล่าวมีผลใช้บังคับ).
Thaksin then issued a decree (PDF) with the decree clearly referencing the Constitution Court. The same could happen again. If the court invalidates this election OR somehow voids the election then a decree amending the election date would be able to be issued – relying on the 2006 precedent – but don’t see how it is applicable to rely on that precedent until the Court acts.
Suthichai Yoon in The Nation channelling Abhisit:
Instead of sitting down with the Election Commissioners to thrash out a solution, Premier Yingluck sent invitations to 70-odd organisations for a meeting yesterday to discuss the EC’s proposal. That was nothing if not a slap in the face for the country’s election agency. The EC decided not to attend the meeting, rendering it a non-starter from the outset [BP: Actually, as The Nation already noted, the EC Secretary-General would be attending and did attend although no Commissioner did attend]
The protesters are demanding her resignation. She has said she can’t step aside because the Constitution requires her to stay put. The government says the election can’t be postponed either – because it claims that the Constitution says so. None of these excuses hold water. Academics and legal experts have cited clauses in the charter that could provide a way out of the current impasse.
if the government refuses to reach out for a breakthrough by holding talks with the other side, the country will be heading towards “failed state” status at a very dangerous speed indeed.
BP: Umm. The government asked the EC what laws allow them to postpone, but there is no answer from the EC. The government is reaching out – much to the annoyance of some of its supporters of giving in too much – but neither Abhisit or the PDRC would agree to meet last week. No EC Commissioner attended in particular EC Commissioner Somchai who is in charge of organising the election, but the EC Secretary-General did. In return, the Prime Minister has snubbed a one-on-one meeting with Somchai; it seems his swipe at the PM didn’t persuade her.
Panitan the other day on Channel 3’s Ruang Den Yen Nee claimed it is possible to postpone the election stating that others have said so – he was challenged by the other speaker to name a provision – but like with Abhisit and Suthichai he doesn’t name a provision just saying he is not a lawyer, does not want to argue, but others have said there is a way.
BP can see no law that gives the executive/government the power to postpone an election. It is obvious why. Otherwise, you would get a situation if an election is called and then suddenly, the government gets bad news then could just delay an election after a dissolution until things were better. For example, problems with the rice pledging scheme now. One could argue there needs to be a safety valve built in given some parties are boycotting elections on a semi-regular basis so perhaps, the new Constitution could give power to the previous (ie just prior to dissolution) members of the House of Representatives to vote and then a super-majority of say two-thirds could allow for a delay an election of up to 6 months. If that party can come to agreement with the government on a new election date, we would then have an “out”. As it is now, there is no easy answer (will look at that in a subsequent post)
*reworded this sentence to make sense.