Below is a summary of the court decision:
Issue 1: Court states that Section 108, paragraph 2 does not rule out completely that a new election date cannot be set if there is a force majeur or necessary circumstances because of disruption that means holding the election as specified cannot be carried out in accordance with the Constitution or that it will cause severe damage to the country, security of the state, or serious public danger. This has happened before when election was moved to October 15, 2006 after the Constitution Court ruled that the April 2 election was not in accordance with the Constitution.
Issue 2: On what entity can set a new date for a general election of the House of Representatives, the power of setting an election date is that of the Prime Minister who must consult with the Election Commission as the Constitution specifies that the EC is responsible for organizing and controlling an election.
If it is necessary to set a new date for the general election, then it is collective responsibility of both the Chairman of the EC and PM in order to prevent public disasters and serious damage to the national or people and taking into account the benefits to the nation and the peace of the people as being key. If there are circumstances that will cause losses to the nation and people as a result of organizing a general election then the EC shall advise the PM or Cabinet in order for them to consider a new decree specifying the general election date in accordance with the powers and responsibilities of the PM and EC Chairman to proceed in accordance with the spirit/intentions of the Constitution
BP: Not too surprising given well the court has been flexible in its interpretation when it wants to be. The key question though for the government, why delay? Then, will the Democrats participate in a delayed election (EC Commissioner Somchai has called for 3 month delay to early May)?
The Bangkok Post last week:
He [Suthep] also revealed the caretaker government had offered to postpone the election until May 4 if the PDRC agrees to call off its shutdown campaign.
Mr Suthep refused to reveal who had presented the offer, but sources said the government had sent caretaker Deputy Prime Minister Phongthep Thepkanchana to negotiate.
BP: 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…