Tomorrow at noon, the Court will issue its decision regarding the Thawil transfer case. Matichon has outlined 4 possible outcomes per the graphic below:

Below is a rough summary:

1. Yingluck is removed, but the current Cabinet survives intact and we wait for the election;

2. Yingluck is removed together with the Cabinet in office at the time of the Thawil decision [so non-Thawil which includes Pongthep]. Cabinet Ministers continue as the surviving Cabinet and we wait for an election;

3. Yingluck and entire Cabinet is removed which leads to a political vacuum;

4. Only Yingluck is removed, but the Court doesn’t apply Section 181 and instead applies Section 172 and allows Senate to take the place of House of Representative and to choose a new PM.

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.

The nomination of a person who is suitable to be appointed as Prime Minister under paragraph one shall be endorsed by members of the House of Representatives of not less than one-fifth of the total number of the existing members of the House.

The resolution of the House of Representatives approving the appointment of a person as Prime Minister shall be passed by the votes of more than one-half of the total number of the existing members of the House of Representatives. The passing of the resolution in such case shall be by open votes.

Section 181:

The outgoing Council of Ministers shall remain in office for carrying out duty until the newly appointed Council of Ministers takes office

BP: The EC has now delayed sending the draft royal decree regarding elections to the government saying they need to speak to Yingluck and government again, but given Yingluck will almost certainly be removed tomorrow afternoon, a meeting between the current caretaker government and the EC before the Court decision seems unlikely. That the EC has now delayed sending the decision and the Court has quickly announced the decision, after hearing witness testimony today, that they will hand down tomorrow afternoon, BP views this is a sign that the “fix” is in.* Hence, see the result will more likely than not be (4) or some variation of (4) (The Nation has a variation where the PM and the entire Cabinet is removed, but then the Court specifically rules the Senate can choose the new PM).

If not (4) then (2). BP views the government/Puea Thai would accept (2) as long as the Cabinet continues as a caretaker Cabinet and we can still proceed with an election (as an Acting PM can fulfill the role of PM until the election and the likely acting PM is Deputy PM Pongthep), but (4) will almost certainly lead to protests by reds and government supporters.

On (4), on when and where the protests may depend on who the Senate Speaker will nominate as PM and how “neutral” this person will be. This may take a few days as we don’t officially have a Senate Speaker now and the royal decree opening the Senate has been limited so legally there is a question of whether the Senate in this session can choose a new Speaker, but BP expects the Court may even rule on this issue tomorrow or the Senate will just proceed anyway.  The PM has signed a decree closing the Senate session on May 10 (which was gazetted today) so there may be a race against time for the Senate to choose a Speaker and then a PM.

In the meantime, the reds may mobilise protesters from upcountry and focus attention the Senate meeting (doesn’t this seem the most logical), but we have to wait and see what role the military will play here. We then wait to see if they will intervene and we may get martial law or some regulations restricting travel to Bangkok and in such case protests will be more focused upcountry.

Key things to watch for starting tomorrow (assuming Yingluck and entire Cabinet is removed) are (a) if the Court rules what happens/who has power to act in such a political vacuum (likely the Senate), (b) what the military is up to regarding security, (c) who the new Senate Speaker is, and (d) who the Senate Speaker nominates as PM. All these signs are up on how the Establishment plans to negotiate with Thaksin with a softer approach suggesting they want to negotiate, but BP thinks we are beyond that.

As Thitinan has told Channel News Asia:

Dr Ponsudhirak said: “Do we stick to the electoral system which has a popular mandate, which is unpinned by electoral democracy or do we go outside the system which is really unlimited? We can have all kinds of possibilities but going outside the electoral system could elicit more protests and turmoil.

BP: Indeed.

btw, there are so many permutations on what may happen. In theory, the permanent secretaries could take over, but if the Court is going to go the whole hog and remove the entire Cabinet, they will likely go the full distance and give power to the Senate. The above is not a “complete how” in the sense of what powers there is to do the above as don’t see the legal grounds for 4 (UPDATE: To be clear there is no power in Section 172 for the Senate to vote on a PM. Let alone the problem of a PM has to be an MP under Section 171), but we are long beyond looking for actual laws allowing things to happen and the Court doesn’t really care up its previous precedents so don’t expect them to do so now.

*Of course, if the EC immediately meets Yingluck first thing tomorrow and soon after sends the draft of royal decree to the government which they can sign before Yingluck is removed then perhaps the “fix” isn’t in after all…. Or it is all pressure for an overnight deal, but that seems unlikely….