Thai Prime Minister Yingluck Shinawatra casts her vote in February's election. Pic: AP.

UPDATE (13:00 Bkk Time March 21): Within the last hour, the Court has nullified the election.

Reuters:

Thailand’s Constitutional Court on Friday nullified a February 2 general election in a ruling that will further delay the formation of a new government after months of street protests aimed at bringing down Prime Minister Yingluck Shinawatra.

The court said the vote did not take place on the same day across the country and that violated a clause in the constitution.

Polling was disrupted by protesters in around a fifth of constituencies, leaving the House of Representatives without a quorum to convene and select a new prime minister.

It was unclear when a new vote would be held.

BP: Via legal analyst Verapat, below is the summary from the Court:

BP: Court says there were not elections in the 28 constituencies and there were not even candidates so it can be deemed that on February 2 there was not an election on the same day nationwide. In regards to holding elections in the 28 constituencies in April, this cannot happen.

The Bangkok Post:

The Constitution Court will rule today on a complaint filed by Kittipong Kamolthammawong, a law lecturer at Thammasat University, who claimed the Feb 2 election was unconstitutional.

WSJ:

The Constitutional Court began hearings on Wednesday after the Office of Ombudsman forwarded a petition to the court, seeking its ruling on whether to void the poll. The petition, which was submitted to the ombudsman office by a Thammasat University professor, said the Feb. 2 election was unconstitutional, mainly because it was not organized on a single day nationwide, as stated in the country’s law.

The general election was held on Feb. 2, but not in 28 electoral districts in eight southern provinces, stronghold of the opposition Democrat Party, which boycotted the poll and did not have contestants. Party members were unable to register their candidacies in those districts due to blockades by antigovernment protesters.

Relevant part is Section 108 of the Constitution which states:

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.

BP: It is important to note that it doesn’t explicitly state the the election must be the same day, it is the election date must be fixed (or set) as the same date. These are slightly different things. For example, the government and the EC clearly could not set the election date to be February 2 in some provinces and then a different date in other provinces. That would clearly be unconstitutional. This is not what happened and is is also why the government refused to issue a new royal decree as requested by the EC to set the election in 28 constituencies (the EC has asked the Court to interpret this issue and the decision on that may also be handed down today). However, if the election date is set nationwide for February 2 and then we have a natural disaster or political protests and elections in one more constituencies cannot take place, is this unconstitutional? Essentially, this will be the question considered by the Court, but then when it likely rules it was unconstitutional, the Court should make clear on specifically the extent of the problem. For example, Reuters has the Puea Thai position:

In a strongly worded statement on Tuesday, her Puea Thai Party said such a verdict would have disastrous implications.

“If the Constitutional Court rules the election void, this would be a dangerous precedent for Thailand … because if a party knows it is going to lose, it will move to block elections,” it said.

BP: The question is and will make it relevant for future elections is, if voting in a single constituency is blocked or the voting cannot take place, does this result in an election being nullified?  It may provide some perverse incentives to some people, such as insurgents in the Deep South. It would set a terrible precedent and would then invalidate the current electoral law which allows for elections in individual constituencies to be delayed.

In BP’s view, if an election is to nullified and for reasons of precedent, the better way to to do this in a different way:

A. Section 93, paragraph 6:

In the case where there occurs, during the general election, any cause resulting in the members of the House of Representatives elected from the election being less than five hundred in number but not less than ninety-five per cent of the total number of members of the House of Representatives, such members is deemed to constitute the House of Representatives. In this case, the acquisition for the fulfillment of the total number of members of the House of Representatives shall be completed within one hundred and eighty daysand the new coming members shall hold office for the remaining term of the House of Representatives.

B. Section 127. The National Assembly shall, within thirty days as from the date of the election of members of the House of Representatives, besummoned for the first sitting.

C. Section 172. The House of Representatives shall complete its consideration and approval of the person suitable to be appointed as Prime Minister within thirty days as from the day the National Assembly is convoked for the first sitting under section 127.

As noted on March 10:

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: BP still sticks to this position. Essentially, if the Court rules that the election has been “frustrated” as parliament couldn’t meet then nullify the eletion. BP would argue this deadline is 180 days – as under Section 127 parliament has to be summoned for a first sitting – but if it is interpreted that parliament must sit within 30 days then BP sees the remedy is nullifying the election and requiring a new election date must be set.

What will this mean?

There are signs – from Thaksin has said to party members and from what Suranand said to the FCCT on March 19 – that those within the government would not be against nullification if it resulted in the Democrats participating in any new election although the Puea Thai party and the reds have been attacking the court and speaking up against nullification. This seems to be a dual strategy of attacking the court on one hand, but with Deputy PM Pongthep stating the government will comply with the ruling. How will reds and aligned groups respond? Just verbally? Or will they up the ante. Concern has been expressed to BP over how the reds will respond.

Obviously the devil is in the detail on what the Court rules. Given it is the EC that organized the election, would it be possible for the Court to blame the government for failure to complete the election and then somehow punish the government? We have seen some strange decisions but surely failure to get to 95% of MPs  is because of the obstruction by PDRC and if the Court was to assign blame, shouldn’t it be directed at those who blocked the election? The Court may satisfy itself with a swipe at the government over its failure to postpone the election. There is the question of whether a postponement would work as the Democrats have now again signalled they would boycott any new election now (remember the EC wanted a delay of a few months, but this wouldn’t seemingly work either). The Bangkok Post:

The Democrats may boycott a fresh election even if the Feb 2 poll is invalidated by the Constitution Court today, according to party spokesman Chavanond Intarakomalayasut.

He said yesterday caretaker Prime Minister Yingluck Shinawatra, her government and Pheu Thai Party MPs must respect the court’s ruling.

If the Constitution Court orders the Feb 2 poll voided today and the government rushes to hold a fresh election too soon, the majority of people and the Democrats will find that unacceptable, Mr Chavanond said.

He said the party is not worried it might face dissolution if it steers clear of an election for a second time.

The Democrats insist a general election should not happen until after national reform is implemented.

BP: How can a caretaker government implement (finish implementing?) national reform?

BP thinks the court will somehow nullify or void the election. Then we will seemingly get new elections, but normally the government is meant to consult the EC over the date of the election. This may take some time as the EC position, as reflected by Somchai, is that there needs to be stability and agreement first although, can they really delay this beyond a few months? This is one way to get to a political vacuum as if no House of Representatives the Establishment will look to turn to the Senate to vote in a new PM once Yinguck is impeached or removed some other way. The obstacle of a pro-governemnt Senate speaker has been removed with his suspension now.  Also, in the meantime, we may get court rulings against Puea Thai and coalition MPs over the constitutional amendments regarding the origin of Senators. If they can essentially weaken a pro-Thaksin party again, will they then the Establishment be content with new elections? Or will they keep the unelected Appointed PM option.