Thailand's Prime Minister Yingluck Shinawatra. Pic: AP.

Over the last couple of weeks, BP has been seriously thinking about what is likely to happen to the Yingluck government. Due to time constraints, BP has not been able to completely finish the post, think through all scenarios, and recheck all information (have seen some information indicating possible legal problems/something will happen, but sometimes it is difficult to confirm what is the basis for this). Hence, this post is an experiment. It is really a draft post for which hope to gather further information via feedback from readers and then edit and do a follow-up post. Send e-mail to bangkokpundit@gmail.com and on twitter at @bangkokpundit

Scenario 1: Yingluck is not impeached/removed from office and continues in office until new elections

Yingluck could either be removed by the Senate through impeachment or through the Court deciding the caretaker government has expired. As blogged yesterday:

Can this be sorted out by the end of March? As already noted in this previous post, we need three-fifths of the existing members of the Senate to impeach someone (Section 274).  By BP’s reading of Senate rules, we are looking at least 4 weeks from the date of Yingluck’s suspension and possibly longer although they are likely to move quickly so it could happen within this time period.* The earliest that Yingluck will have a prima facie case found against here is March 14 although this could certainly be delayed. Hence, it seems difficult to move forward and actually impeach Yingluck before the newly elected Senators (Senate elections on March 30) take office.

The relevance of this (and why Suthep wants it over by March ?) is that out of the 308 lawmakers who face possible suspension and then impeachment over their vote for the draft constitutional amendment regarding the origin of Senators there are 38 Senators including 3 Appointed (so 35 Elected Senators?). There has been a scenario going around that the NACC finds a prima facie case against the 38 Senators then they are suspended and can’t vote. As the 38 are mostly (all ?) pro-government Senators then this makes impeachment of Yinguck easier, but if you need three-fifths of the existing members of the Senate those 38 Senators who are Senators have not lost their positions, they can’t vote as they suspended. However, it is not until they are impeached that they have lost their positions and that you have a reduction of 38 Senators from the number of  of the Senate.

As there are only 144 Senators (as of February 27), 86 Senators (60% of 144) are needed for impeachment. Therefore, if you were to suspend and then impeach all 38, you would reduce the existing members of the Senate by 38 and so this gives you 106 members and three-fifths of 110 is 64 which is much easier to achieve. However, as we already know with Yingluck’s case, we are looking at 15 days notification by the NACC for those Senators regarding the charges that will be brought and then if a prima facie case is found against them then another 4 weeks for impeachment. By this time, and unless there is disruption to the Senate election on March 30,** impeachment of those 38 Senators won’t be able to take place until after April 25 at the earliest and so the newly Elected Senators will almost certainly have replaced those 35 and so the importance of impeaching the 35 Senators is suddenly note so important. At most, we get impeachment and 3 out of the Appointed Senators are impeached although by this time, enough pro-government Senators may be able to block this.

It should be noted that Section 117 the Constitution states that “no senator shall hold office more than one term” hence those 35 Elected Senators who are under investigation by the NACC cannot be candidates for the March 30 election. Therefore, because of the time it takes for the Senate to impeach someone, BP doesn’t see how the 38 Senators can be suspended and impeached in just over one month (March 30 election and then a week or so to confirm the results).

Therefore, in conclusion, it seems likely that the impeachment vote for Yingluck (assuming that NACC finds a prima facie case against her) won’t take place until after Songkran at the earliest and by then we will almost certainly have the newly Elected Senators in place so it makes it even more difficult to get around 90 out of 150 votes for impeachment. So if Suthep wants to remove Yingluck before then and have the Senate vote in a new PM, they may need another avenue.

One other option is that the caretaker Cabinet is deemed to have expired. As previously blogged , a former drafter of the Constitution explained in a FB post that within 30 days of the election of members of the House of Representatives, parliament must be summoned for its first sitting (Section 127) then within 30 days of this first sitting the House of Representatives they must consider and choose a PM (Section 172). However, the problem is that under Section 93, we need at least 475 MPs in order to meet the minimum threshold for the House of Representatives to convene so his argument is that as of April 3, the caretaker government of Yingluck can no longer continue. This interpretation is contested by legal analyst Verapat. First, the Yingluck Cabinet is a caretaker Cabinet. It is compelled to continue its role under Section 181 until a new Cabinet takes office. Second, there is 180 days under Section 93, paragraph 6 to get to 95% minimum threshold of MPs for the House of Representatives to convene so there is no 60 day deadline.

BP: Normally, within 60 days of the election the caretaker Cabinet will be replaced by a new Cabinet, but Section 181 does not put a maximum timeframe on how long the caretaker Cabinet can continue. It simply states the caretaker Cabinet continues until a new Cabinet takes office. In BP’s view this is clear. There is no expiry date so the caretaker government can continue until it is replaced by a new Cabinet. There is a Constitution Court case now regarding this issue, but surely the remedy if 95% of MPs are not elected within 30 days and so parliament cannot legally convene is for the February 2 election to be voided and we start again. Then again, the Court has shown itself to be creative in its decisions….

BP: There are a few other cases pending (e.g. 2 trillion Baht infrastructure project decision is meant to be handed down on March 12), but because of timing issues it may not be easy to get rid of Yingluck quickly especially through the impeachment route. Then the ability to impeach Yingluck will depend on how well/badly pro-government senate candidates do on March 30 vs how well/badly anti-government Senate candidates do. Hence, because of these difficulties together with the legal uncertainty over the use of Section 7 – see yesterday’s post and a post from December on other problems over the use of Section 7 including translation of speeches from HM the King criticising the call to use Section 7 (PDRC will try to argue this time is different as the Senate will be involved although the real legitimacy claimed will be from the endorsement…) – the other cases may be needed. However, it is because of the difficulties with this, there is a scenario where some deal/arrangement is worked out and we have outline for reform and new election (after the Feb 2 election is somehow voided) with Yingluck continuing as caretaker.
Scenario 2: Yingluck takes leave as PM and one of the Deputy PMs is Acting PM

Essentially, the reasons for this would be we also have some deal/arrangement, but instead of Yingluck continuing as PM, we get an Acting PM. It is because of the problems that arose in Scenario 1 whereby we need Scenario 2 and a more palatable choice for the Opposition of Yingluck being effectively removed. Is this option legal?

PM must be an MP under the Constitution (Section 171) so Scenarios 3 and 4 face this obstacle, but taking leave happened in 2006 under Thaksin so is theoretically possible again with one of the Deputy PM’s being made Acting PM. Most likely Deputy PM is Yukol Limlamthong who is from Chart Thai Pattana (Banharn’s party). Yukol was a career civil servant from Ministry of Agriculture rising to be the Permanent Secretary (most senior civil servant in the Ministry) before retiring and becoming the Minister and also Deputy PM so while he is not known really known, he also doesn’t have too much political baggage. More importantly, the Acting PM is not only not a Shinwatra, it is not someone from Puea Thai.This would in theory be a legal way to do this and also provides insurance to Thaksin as Yingluck is still PM and could come back at anytime if things changed, i.e negotiations over future reform plans take too long and  etc. The alternative is that Yingluck appoints someone else as Deputy PM and they then become acting PM. Thai Rathin their analysis on February 18 quoted someone close to red leaders as saying this  process would be acceptable (although the person close to the reds cited by Thai Rath gave the option of an outsider becoming Deputy PM and then Acting PM).

Scenario 3: Appointed PM but by agreement between Thaksin and Suthep’s backers, Yingluck resigns and we get an Appointed PM.

Legally, this would face problems as the PM would not be an MP and the PM would not voted into office by the House of Representatives either so even if Thaksin agrees, many reds who are in alliance with Thaksin not because they like him, but more my enemy of my enemy is my friends i.e. they hate the establishment, many not react so well. Also, depending on how the Appointed Government plays out, it may also hurt Puea Thai further politically as BP doubts many reds will be happy with his proposal, but it may depend on exactly who is the “neutral” PM and they may wait a while to see what happens. However, it would be naive to think things would be smooth as some think so, but Scenario 3 would be smoother than Scenario 4.

BP: Assume that it is not the complete 18 months that Suthep wants, but much longer period of government than under Scenario 2 as it will be deemed not to be a caretaker government so the government will have full powers.

NOTE: From what BP understands, names and terms have been discussed privately by both sides, but no agreement can be found.

Scenario 4: Remove Yingluck through judicial/independent organization coup and get Appointed PM.

This is likely through the NACC and then Senate impeachment although there are other possibilities (see Scenario 1). As stated in Scenario 1, we are looking at weeks for impeachment as as there are still procedures to follow. Then, we get Appointed PM and likely going more after Thaksin and his family to reduce his influence. Reds come out to protest, crackdown, and many people die and a low-intensity civil/guerrilla war. Once Yingluck is removed and even before the Senate votes on a new PM, we are likely to have the reds protesting.

BP does think the establishment believes they can avert violence by negotiating more seriously with Thaksin post-removal of Yingluck when his position is weaker. The most likely conduit will be Prayuth, but what Prayuth will do is unknown. Prayuth would have to be involved in any crackdown so would prefer not to crackdown because of the legal risks to himself and his younger brother (who is in line for future very senior army positions). Things could get very “messy”. Prayuth is still the most likely person to play peacemaker – relevant also he then would likely be the enforcer of the peace so important for him to actually secure a workable deal – but a negotiated deal may no longer be possible at this stage for 2 reasons. First, Thaksin may think you wouldn’t negotiate before and did everything to hurt my sister’s govt so will inflict some damage on your first before negotiating. We don’t know for sure what the deal was in 2011, but I suspect somehow Thaksin was double-crossed – whether intentionally or by chance (i.e after so much opposition to Amnesty Bill, the establishment saw their chance to get rid of him) – so if this is the case, there are trust issues regarding any deal. Second, if Yingluck is removed, the situation will become very fluid. One hopes that the Establishment isn’t naïve enough to think that Thaksin controls all the red groups. Once Yingluck is removed, it will be difficult to predict what some groups will do and they will be preparing themselves for a crackdown by the military.

BP: Thaksin and those aligned with him obviously want Scenario 1 or a variation of it. Suthep and his backers want Scenario 4 or a variation of it. Scenario 1 will only happen if the Establishment completely acquiesces which is very unlikely. The Establishment can make Scenario 4 happen if they want, but Scenario 4 raises the stakes so high.

In case, you are asking, is Scenario 2 really different from Scenario 3? BP would say yes. Substantively, it is different because the Acting PM is still a caretaker PM and hence it is very much a short-term option as we are talking about a matter of months and not 18 months under Suthep’s stated plans for the period of time of a neutral PM. A caretaker PM cannot really complete any actual reform as they have limited powers. More importantly, the difference it is also about process. Thitnan in an op-ed in the Bangkok Post:

How Ms Yingluck goes is also crucial. If she is ousted without relatively persuasive legal and constitutional basis, the risk of a post-Yingluck backlash from upcountry red-shirt supporters of the Thaksin camp will heighten. Thus, a decent interval is needed for due process, even at a cost to Thailand’s reputation and economy, and a sufficiently reasoned ouster on legal and constitutional grounds is equally important.

Analysing Ms Yingluck’s political longevity and how it is likely to be upended does not condone the process. Thailand is now in a familiar conundrum. Another elected government from Thaksin’s power bases, haunted by corruption allegations and hounded by critical policy missteps, is being overthrown not in parliament, but in the streets and in the corridors of the judiciary and other watchdog agencies. The last time this happened, in December 2008, it begot the red-shirt demonstrators because Thaksin manipulated them and because they were effectively disenfranchised.

This time must be different. If Ms Yingluck is deposed in a similar fashion, the caretaker government that comes after her must be inclusive.

BP: Indeed, the process is important. You can’t just try to do this after Yingluck’s removal. BP thinks the reds could accept Scenario 2, but not Scenario 3. Why many reds and those who support Thaksin may see Scenario 2 as far from ideal, but it is not the full removal of Yingluck as PM and not the appointment of a neutral PM under Section 7 which will undertake reforms. We would see elections later this year. As the Acting PM would also be a caretaker PM, the government could not last long. The idea then would be to have a short period of announced reforms (although it may be difficult to do too much before the election) which should pacify the Democrats and have elections later this year. The Democrats would seemingly accept this based on what Abhisit has told fund managers, but I am not sure how Suthep’s backers would respond to this. It may depend who is the Acting PM. This is where Thaksin will need to be flexible and have someone not from Puea Thai, but the Establishment need to be flexible about the timing (elections this year) and the limits of what the caretaker government does (not rewriting the rules and starting the process).

So what will happen? Unfortunately, all signs show we are heading for Scenario 4…