Front page of the Bangkok Post yesterday:
Today, the 30-day deadline since the Feb 2 general election will have lapsed without the first lower House session having convened, as legally required.
The Election Commission (EC) could not endorse the results of at least 95% of the total 500 elected MPs — or 475 MPs — as required by the constitution to convene the first House session after the election.
Some legal experts believe the expiry of the deadline will mean Yingluck Shinawatra can no longer keep her seat as caretaker premier.
It [the petition of the Democrats] will ask the court to decide whether the Feb 2 general election was valid and, if not, whether the Pheu Thai Party should be dissolved.
It will also petition the EC to disqualify Ms Yingluck and certain other caretaker cabinet ministers for breaking the election law.
The Democrats allege the caretaker government violated Section 108 of the charter, which stipulates that an election must be completed within one day.
BP: Not sure how the government can be blamed that the 95% threshold couldn’t be met within 30 days. Somewhat perverse logic given it was the Democrat-aligned PDRC who obstructed the election.
A recent op-ed in the Bangkok Post:
The caretaker government is fast running out of time and options. The Feb 2 general election, hamstrung by an absence of candidates in 28 constituencies, will not likely be completed before the March 3 deadline for the lower House to convene its first session and pick a prime minister.
There’s also the second, equally crucial deadline a month later when the caretaker government’s life comes to a statutory end.
BP: No mention is made what this deadline is and BP does not recall any article written in English which explains whether this is correct or not.
Below are the relevant provisions from the 2007 Constitution which are referred to in this post:
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 days and 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, be summoned 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.
D. Section 180. Ministers vacate office en masse upon:
(1) the termination of ministership of the Prime Minister under section 182;
(2) the expiration of the term or the dissolution of the House of Representatives;
(3) the resignation of the Council of Ministers.
In the case where the ministership of the Prime Minister terminates under section 182 (1), (2), (3), (4), (5), (7) or (8), the procedure under section 172 and section 173 shall apply mutatis mutandis.
E. Section 181. The outgoing Council of Ministers shall remain in office for carrying out duty until the newly appointed Council of Ministers takes office, but in case of vacation of office under section 180 (2) the Council of Ministers and a Minister is able to carry out any duty as necessary within the following conditions:
(1) refraining from the exercise of power which resulting in the appointment or transfer of government officials holding permanent positions or salaries or of officials of State agency, State enterprise or any enterprise in which the State is a major shareholders or resulting in leaving such persons from the performance of their duties or offices or replacing other persons to replace him except by prior approval of the Election Commission;
(2) refraining from doing an act which resulting in giving of approval to spend budget reserved for emergency or necessity situation except by prior approval of the Election Commission;
(3) refraining from doing an act which resulting in giving approval of work or project or which the forthcoming Council of Ministers may be bound;
(4) refraining from using resources or personnel of State to do an act which may affect the result of a general election, and refraining from the violation of any prohibitions under the rules prescribed by the Election Commission.
Thai Rath recently reported that Seree Suwannapanon, deputy chairman of the Constitutional Drafting Assembly [in 2007], stated that the caretaker government will expire no later than April 3. He stated that it is necessary to consider Sections 127 and 172 and even though Section 181 provides that the Council of Ministers/Cabinet continues in office carrying out their duties until there is a new Council of Ministers/Cabinet, but when the Royal Decree on the election specifies that February 2 is the election date and in accordance with Section 127, the House of Representatives needs to be summoned for its first sitting within 30 days which is up by March 2 and then Section 127 [BP: actually, this should be Section 172] states that a meeting of the House of Representatives shall meet within 30 days of the first sitting under Section 127 in order to approve the choice of PM. Therefore, as of April 3, Yingluck will be former PM and has no power to run the country. In addition, the government has no power to run the country and cannot meet or order civil servants.
Therefore, as of April 3, there is a political vacuum as no caretaker government. The answer is Article 7 and Article 3. When considering history – October 14, 1973 – then there is no option but to request a royally-appointed and neutral PM who can choose a new Cabinet.
BP: A FB post of his has a longer explanation although the above Thai Rath story has the basics. Simply put, 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.
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.
Now, you may say this provides a perverse outcome and means a caretaker Cabinet could then seek to continue in power indefinitely by obstructing parliament from sitting and voting on a PM, but this is not what has happened here and it would be unconstitutional anyway for the caretaker Cabinet to obstruct parliament from sitting and voting on a PM.