The recently-dismissed Election Commissioner has said that the upcoming general election might be invalidated due to legal ambiguity and conflicts of authority between the junta and the Election Commission of Thailand (ECT).
On 25 March 2018, Somchai Srisuthiyakorn, a former member of the ECT, posted on Facebook a prediction that two problematic issues could lead to the nullification of the long-awaited election. The first relates to the question of “who will schedule the election date” as the 2017 Constitution gives this power to the ECT, while National Council for Peace and Order (NCPO) Order Number 53/2017 allows the junta to schedule the date.
Somchai added although the Order states that the cabinet must first consult other political institutions, such as political parties and the ECT, the NCPO, in fact, has the final say.
“I believe that, de jure, the cabinet and the NCPO might allow the ECT make the announcement [of the election date] in line with the law because the constitution is naturally higher than NCPO orders. However, de facto, the NCPO might use its power to make the ECT announce what it wants by citing the consensus of the consultation under Article 8 of NCPO Order 53/2017,” posted Somchai.
The second problem is a legal ambiguity concerning the duration of the election. The constitution states that the general election must be held and “finished” within 150 days after the four organic election laws are enacted. According to Somchai, it remains unclear whether the term “finished” includes the ballot counting procedures and the announcement of the official results.
He believes that the ECT is likely to take the interpretation that ballot counting is excluded since it wants to allow all parties to campaign for as long as possible. If it is not included, the ECT has to reserve 50 or 60 out of the 150 days for ballot-counting, which will be unfair to small political parties because they will have less time to campaign.
“If one of those who lose is an influential figure, they can petition the Constitutional Court. If the court says there is nothing wrong, then that is fine, but if the court rules that completion of the election must include the official announcement of the election results, the upcoming election will be invalidated,” Somchai predicts.
Previously, Somchai also forecast that the delay in the drafting process of the Organic Bill on the Selection of Senators could postpone the election for up to another six months.
Somchai was an iconic member of the ECT who served the military government from the beginning. During the 2016 constitutional referendum, Somchai participated in drafting the controversial Public Referendum Act, which led to numerous prosecutions of people who criticised the junta’s constitution.
He also made repeated criticisms of the NCPO on issues related to the election until last week, when the junta activated its absolute power under Section 44 of the Interim Charter to dismiss him from the ECT, citing his alleged misbehaviour.