Election Commissioner Somchai Srisuthiyakorn has attempted to put the kibosh on plans by the UDD to monitor the upcoming referendum.  That much was entirely predictable.  What was more surprising was the legal justification that he gave for saying that they couldn’t do it.

He is reported to have said that the Referendum Act did not expressly permit it. 

But saying so you can’t do something if the law doesn’t explicitly permit you to do it – that’s complete bullshit. 

Hang on, let me rephrase that in a Section 44-compliant way.  That is a flagrant violation of the basic legal principle that is so fundamental that it’s written in Latin - nullum crimen sine lege.  No crime without a law.

Suppose that Commissioner Somchai were to do something he seems to find far too irksome, such as think this through. If the UDD does go ahead with some form of poll-monitoring, and if this is not formally permitted under the Referendum Act, what offence is he going to charge them with?  What will be the legal criteria for deciding guilt or innocence?  What are the stipulated penalties for being found guilty?

Now I am sure that Commissioner Somchai could make up some very clear answers to these off the top of his head.  But, being nothing more than the blatherings of someone whose biases were long ago made all too clear, they would have no legal standing whatsoever.

I am also sure that Commissioner Somchai could bend the interpretation of some other law to make it fit, maybe jaywalking, or driving a taxi without a collar and tie.

But before he makes a complete fool of himself, I respectfully ask Commissioner Somchai to consider some other actions for which the law does not give explicit permission.  Throwing a banana peel at a reporter, for instance.

Now you may search the law books, but I am confident that there is not one word in them that expressly allows anyone, up to and including Prime Ministers, to engage in such acts of wanton depravity, repugnant as all right-thinking citizens might find them.  And I wish Commissioner Somchai the best of luck in getting Gen Prayut arrested for doing something the law doesn’t say he can.

Deputy Prime Minister and Minister of Defence Gen Prawit Wongsuwan also says the UDD’s plans to monitor the referendum are not allowed, but uses a different reason.  There are state agencies who already have this responsibility, he notes, so independent organizations should butt out.

He said the state agencies who will be monitoring the National Election Commission’s handling of the referendum are, er, the National Election Commission and the National Anti-Corruption Commission. 

So that’s alright then.  Organizations monitoring their own performance are, of course, standard operating procedure within this administration.  The Army, for example, investigated the Army over the alleged Rajabhakti Park corruption scandal and ISOC Region 4 investigated ISOC Region 4 over allegations that they have been torturing Muslim Malay detainees (and they didn’t even need to torture themselves to get to the truth). 

Readers will be relieved to know that in both cases the allegations proved to be without foundation and everything was absolutely hunky dory.

But if a government agency has a responsibility to perform a certain function, does that mean no one else can do the same thing, as Gen Prawit contends?  If so, then there are thousands of private schools and hospitals facing imminent closure.

And why, every time they want to procure equipment, like overpriced fake bomb detectors that get people killed and imprisoned for no reason, does the military have to hire a private ‘broker’ to do the buying for them? 

On the question of foreign observers, the Referendum Law is such a paragon of legal clarity that Prime Minister Gen Prayut Chan-o-cha says they’re banned and Election Commissioner Somchai says they will be welcome.

Gen Prayut’s argument is that the referendum deals with the constitution of Thailand and so is a domestic matter that is of no concern to foreigners at all.  A general election, however, deals with the government of Thailand and so is a suitable matter for international observers. 

(And excuse me while I take an aspirin.  This happens every time he resorts to reason – a blinding headache trying to figure out what he could possibly mean.)

Commissioner Somchai’s reason for having international referendum observers is far easier to understand.  It is ‘to maintain the reciprocal norm when Thai election observers are fielded abroad’ according to one news report. 

Ah yes.  Like when he went to observe the Scottish referendum at the Thai taxpayers’ expense.  All those photos of him taken in the Palace of Holyroodhouse and outside St Giles Cathedral and other Edinburgh tourist spots that must have doubled as referendum polling stations.  Can’t let future opportunities slip away, can we?

About author:  Bangkokians with long memories may remember his irreverent column in The Nation in the 1980's. During his period of enforced silence since then, he was variously reported as participating in a 999-day meditation retreat in a hill-top monastery in Mae Hong Son (he gave up after 998 days), as the Special Rapporteur for Satire of the UN High Commission for Human Rights, and as understudy for the male lead in the long-running ‘Pussies -not the Musical' at the Neasden International Palladium (formerly Park Lane Empire).