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POST-ELECTION IMPASSE
Can we get out of this jam?
Published on April 11, 2006
Constitution experts say only way to sort out mess is to nullify April 2 result and call fresh general election in 120 days
Thai democracy is facing a logjam, and the way out may require an almost impossible decision from the Election Commission (EC) - or another very controversial ruling from the Constitution Court.
Questions have been raised over the EC's legal authority to hold the April 23 by-elections since the April 2 election had created many "illegitimate" winning MPs. The EC might also
have violated Article 157 of the Constitution by inviting candidates from other parties to stand in the by-elections in 39 constituencies, where the April 2 candidates had failed to win 20 per cent of the registered votes.
The Democrats have submitted a complaint to the Administrative Court asking it to issue an injunction on the April 23 by-elections on the grounds that the EC does not have the legal authority to accept new candidates.
The Democrats have argued that the EC should have held
the by-elections with the existing candidates until results are achieved.
Supposing this sticky problem is solved, then can Parliament convene with 499 MPs because one of the party-list members of Thai Rak Thai has resigned?
Yet another ugly prospect of the new Parliament is that it would be made up almost entirely of Thai Rak Thai members - the opposition would consist of a solitary MP.
Assuming the April 23 by-elections proceed but fail to fill the required 400 constituency seats, can Parliament be convened? These legal and constitu-tional problems require tough decisions by the EC - which has been accused of holding the by-elections in a way that favours the ruling party - and an eventual ruling by the Consti-tution Court, no matter how contentious it might be.
A former constitutional drafter said the political impasse has reached a critical point and at least two drastic steps must be seriously considered to resolve the deadlock.
Asking not to be identified, he said the first step is for the EC to swallow its pride and nullify the April 2 general election because the unfinished polls have already faced too many legal and legitimacy issues, which are beyond rescue efforts.
Second, the authorities concerned should hold a new election in 120 days to allow all three former opposition parties - as well as Thai Rak Thai and other new parties to stand.
"The 120-day postponement would remove the locks on Thai Rak Thai MP candidates joining another party to stand for the new round of elections.
"In addition, the new round of polls would take place around August after all the grand ceremonies to mark His Majesty the King's 60 years on the throne are completed," he said.
As for the April 2 election and consequent by-elections, he said: "Eventually, this whole exercise will become a complete mishap and waste of taxpayers' money. It is beyond any rescue efforts.
"The road ahead is just a dead-end because the whole election has been broken in too many areas. It's like a severely impaired person," he said.
"It's no longer possible to circumvent the laws or to misinterpret the intents of the Constitution in order to fix these problems."
"For instance, there would be at least six constituencies in southern Thailand where MP candidates will not get the minimum 20 per cent of votes required to win the still-vacant House seats.
"Second, it's illegal for the EC to allow new candidates to stand for the election re-runs in many constituencies since only the original candidates who failed to win on April 2 are qualified to run.
"Third, an MP candidate, who was disqualified for April 2, is not eligible to run [in the by-election], but she is being allowed to do so.
"Fourth, it's not possible to have a 500-MP House when the Thai Rak Thai's party-list MP candidates stand at 99, instead of the required 100, since all other contesting parties were too small and did not get enough votes to earn any party-list MP seats on April 2."
As a result, it's now highly likely that the April 2 polls and the April 23 by-elections will not yield a result to allow the opening of a new Parliament.
Given these problems, the source suggested it would be better for General Vasana Puemlarp, chairman of the EC, to consider seeking an audience with HM the King to resolve the impasse by nullifying the April 2 election and consequent polls.
That move and holding a new election in 120 days could be sought by the EC chairman under Article 7 of the Constitution.
Likhit Dhiravekhin, a Thai Rak Thai party-list candidate, said the Constitution Court might need to rule in favour of a new Parliament so that the country can move ahead.
Speaking at a seminar held at Thammasat University yesterday, Likhit said he was well aware of the legal, constitutional and legitimacy problems besetting the new Parliament but in the end the Constitution Court might have to issue a ruling against the Constitution itself.
"In the end, the way out for the country is to embrace an option that may run against the principle of the Constitution, otherwise the logjam cannot be resolved. Then we have to remind ourselves of Alexander the Great's remark that 'We have to commit a minor mistake in order to protect the greater good'. We have to do it because there is no other way out," Lihkit said.
Kittisak Prokati, a law lecturer from Thammasat University, said the EC did not possess the legal authority to hold the April 23 by-elections because it had breached the law by calling for candidates from other political parties to stand.
The EC had to hold the election with the existing candidates.
But this would depend on the Administrative Court's decision as the Democrat Party has filed a complaint with it.
If the Administrative Court were to issue an injunction to block the by-elections in the 38 constituencies, excluding Nonthaburi, they might not take place.
"If the April 23 by-elections do not take place, Parliament cannot be convened. Then the EC may ask the caretaker Cabinet to issue a royal decree to ask for a new election.
"Once we have a new election, then democracy can proceed," he said.
Trakoon Meechai, a political lecturer at Chulalongkorn University, said eventually all the 400 constituency seats would be filled. But the question was, how to fill the 100 party-list seats because Dr Premsak Piayura had resigned, he said.
If the number of MPs did not reach 500 as required for Parliament to convene, the caretaker government must submit the issue to the Constitution Court for a ruling.
Yuwarat Komolvej, a former election commissioner, said another round of by-elections could be held if the April 23 election did not produce enough MPs. But it had to be done quickly.
"If there are not enough MPs, the EC can make a case of it then send the matter to the Senate so that the Senate president can resubmit the matter to the Constitution Court for a final ruling," he said.
Political Desk
The Nation
