Commentary and analysis of the court decision allowing for postponement of the election
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Commentary and analysis of the court decision allowing for postponement of the election

BP has already blogged on the Constitution Court decision on Friday which stated that if there is a force majeur or necessary circumstances because of disruption that means holding a election on the date specified cannot be carried out then the election can be postponed if the PM and the EC Chairman agree and then both having to agree when the new date should be.

Also, as commented in the above post:

We have no on-the-record confirmation, but BP would not be surprised if the government agreed to delay the election. The main reason is that timing-wise, the parliament would be convened around the sound time regardless of the election being delayed or going ahead. For example, after February 2, there will not be enough seats to meet a 95% threshold so there will have to be by-elections in those constituencies (assuming by-elections can take place and they are not disrupted) so it may take a while before they can meet this 95% threshold. Also, in previous Democrat held seats, the winner may not get 20% so it may take up until the 3rd round (winner takes all that point). Also, if PDRC still continue to disrupt the election – Suthep has said this week they will although today his step-son and spokesman said he has changed his mind and PDRC no longer will disrupt elections, but as we saw with NSPTR, the militant wing of the PDRC, after PDRC stopped blocking election registration for party list constituency in Bangkok the result was just the NSPTR replaced them and PDRC denied all responsibility. All this means it is likely to take a couple of months to go through all these by-elections and to get to the 95% threshold so on this basis a delay of up to three months won’t matter much…

However, this is contingent on the Democrats participating in the election and then the PDRC going home – or at least limiting their protests to more defined areas and stopping obstruction of government offices. BP expects Puea Thai to either approach PDRC and the Democrats again to see what their position is.* If no change then, what would be the point of postponing the election?  The government would just look more impotent as it can’t do much as a caretaker government and at least with the February 2 election the government has an opportunity to regain some legitimacy. It is unlikely, particularly with problems over the rice-pledging scheme that the government will top its 15+ million votes in 2011, but it will still win comfortably so a big victory and say 13-14 million votes then the government can point to this. This is not to say that the PDRC will listen, but the government has little options at that point.

*They should ask for a public declaration by Abhisit to give his answer if the Democrats say they will participate…


Pheu Thai officials hinted the government would consider a postponement of the Feb. 2 vote if the opposition Democrat Party, which plans to boycott the polls, agrees to take part, and if anti-government demonstrators cease their protests.

Neither the Democrats nor the protesters have agreed to those conditions.

“This isn’t about compromise,” protest leader Suthep Thaugsuban said. “The people (protesting) will never go home because what the people want is political and national reform.”

Yingluck and the Election Commission are set to meet on Tuesday to discuss the election plans.

Commissioner Theerawat Theerarojwit said the election body believes the vote should be postponed so that the contending sides can first talk with each other.

“As for the February 2 election, I don’t believe it can be held,” he told reporters. “It won’t be able to be held because if there are elections on that day people could get hurt, and the (Elections Commission) doesn’t want people to get hurt.”

Even if the polls go ahead, it is possible that protesters’ efforts to block candidates and voters may result in some legislative seats not being filled, denying Parliament a quorum and keeping it from convening, which would prevent a new government from being formed.

Postponing the election could provide a solution to the current crisis, said Bangkok-based political analyst Chris Baker. But he said that unless the Democrat Party _ which is closely allied with the protest movement _ takes part in an election at some point, “it’s still useless.

Democrat Party spokesman Chavanond Intarakomalyasut on Friday applauded the court’s ruling and urged the government to postpone the polls. He said his party would only participate if it feels the elections were being held under trustworthy conditions acceptable to all.

BP: What are those trustworthy conditions? By all, does that include the PDRC? If so, then well we are not at that stage….

Thomas Fuller in the New York Times:

Explaining its decision, the court said in a short statement that the Constitution “does not absolutely mandate that the election day cannot be rescheduled.”

The court listed circumstances that would justify delaying an election, including acts of nature and situations that “obstruct the general election process,” “damage the country” or cause “significant public calamity.”

In analyzing Friday’s decision, Pornson Liengboonlertchai, a scholar at Chulalongkorn University in Bangkok who specializes in constitutional law, echoed the views of other experts in saying the court appeared to be making law, rather than interpreting it.

The power to postpone elections does not exist in any part of the Thai Constitution at all,” Mr. Pornson said on Thai television. “The court itself is trying to establish this power.”

BP: It is what we call making it up out of thin air although having said that at least the Court seemed to make sure this decision can be applied as a precedent in the future. What BP means is that we have often had decisions that could be called “one-off” decisions applying to the particular facts (i.e they want to get rid of a pro-Thaksin government and so will do anything to obstruct the government/effectively remove it from office etc and if the Democrats were in power, the decision would be different so it is hard to think it applies in future cases) whereas this decision could be. Actually, upon reflection, of all recent court decisions, while it has no basis in law and no reasoning, it is at least reasonable in the sense it provides an “out” done through agreement between a government and the EC.

Jonathan Head for the BBC:

Enter Thailand’s officially neutral institutions, the election commission, charged with organising the poll, and the Constitutional Court. The five-member commission has already asked for a delay, on the grounds that a fair election is too difficult in the current turmoil. Now the court has ruled that the prime minister and the commission must make a joint decision on whether the poll goes ahead [BP: Not quite correct, a joint decision on whether the election is delayed. If no decision then the election will go ahead].

The government’s supporters believe neither institution is impartial. All Thailand’s top courts have a history of controversial verdicts against parties led by PM Yingluck Shinawatra’s family. At least one of the election commissioners is openly sympathetic to the protesters. So this ruling will be viewed by the government’s side as yet another blow to their democratic aspirations by the establishment. They believe the protest movement could never have occupied central Bangkok for so long with powerful backers in the military and the bureaucracy.

Even if they can agree to postpone the election before the end of next week, what then? The political paralysis would continue, and a new vote, required within four months, might face the same obstacles

BP: Exactly.


(The ruling) is likely to be seen as part of the build-up to dislodge Yingluck from office, similar to what happened in 2008 but with higher stakes and higher potential for violence and unpredictability,” Thitinan Pongsudhirak, political analyst at Chulalongkorn University in Bangkok, said.

Many see both the Constitutional Court and the Election Commission as favoring Yingluck’s opponents.

“The pressure will be much more on Yingluck than the Election Commission because the Constitutional Court decision is much more supportive of the (commission),” Thitinan said.


“It’s a kind of a Thai way of approach,” explained Dej-Udom Krairit, president of the Lawyers Council of Thailand; “even though you are empowered but at least you are going to discuss with the current administration on how to proceed. Even though the Election Committee [Commission] has the authority but they still need cooperation from the government agencies around the country.”

Panitan Wattanayagorn, a political scientist and former government spokesman under the Democrat Party, says postponing the February 2 poll would allow for negotiations.

“Of course the election should be postponed,” he agreed. “Postponing the election with the intention to renegotiate a political solution so to avoid walking into a more complicated situation. The court rules the Election Commission can share, can mandate to push for the decree you may have another way out led by election commission.”

BP: But will the PDRC negotiate? They have said “no” continuously.

The Bangkok Post:

A group of academics named the Assembly for the Defence of Democracy (AFDD) yesterday issued a statement criticising the charter court’s ruling, saying it lacked clarity.

The AFDD said the court failed to take into account that overseas voting is already under way.

If the overseas voting was cancelled, this would damage candidates who had already registered and launched election campaigns as well as voters, and the Constitution Court must take responsibility, the AFDD said.

The group also said the court’s ruling had no legal basis to support it.

The court only used the royal decree on the House dissolution on April 2, 2006, as a basis for its ruling. That is not relevant to the current case, it said.

Pheu Thai secretary-general Phumtham Vejjayachai said yesterday the party would ask the charter court and the EC to clarify whether the law guaranteed the government would not be sued if it puts off the poll.

BP: On the statement by Phumtham, this is because the Court said the election can be postponed if certain circumstances are met (i.e force majeure/it is necessary because of disruptions), but the Court didn’t actually rule that the current situation meant that this threshold should be met. Hence, the statement by Phutham suggests Puea Thai concern that a lawsuit could be filed against the PM directly if she was to postpone the election on the grounds that the circumstance did not warrant a postponement (of course, another lawsuit could be filed if she doesn’t postpone the election so regardless there is no clear way to avoid a lawsuit).