The Constitutional Court's judgement to nullify the February 2 election was extremely counterproductive for legal interpretation, law enforcement and political development in Thailand. The court misinterpreted the Constitution and presented a wrong exit f
Referring to Article 245 (1) of the Constitution, the Ombudsman requested the Constitutional Court decide whether or not the election was unconstitutional.
The Ombudsman wrongly interpreted the Constitution in taking the case to the court since Article 245 (1) allows the Ombudsman to do so only when any laws involve questions of constitutionality. In short, the Ombudsman should ask the court whether the election decree is unconstitutional, rather than asking the court to nullify an election. The subject of the court’s action should be the decree itself, not the election process.
Of course by logic, if the decree was unconstitutional, the election would be invalid. But there was nothing wrong with the decree. It was issued to call the election on February 2 and no single word in the law challenges the Constitution.
The court, by 6 to 3, decided that the election decree was unconstitutional because the Election Commission (EC) failed to hold the poll across the entire country on the same day, since eligible voters in 28 constituencies had not cast their ballots due to disruption by anti-government protesters.
The EC planned to hold the ballot casting later, but the court gave no chance, saying any voting would make the election happen on a day different from the original date set by the election decree.
Article 108 of the Constitution says the election day must be set on the same day throughout the Kingdom. The election decree indeed did not mention any other day for election other than February 2.
From a legal perspective, ballot casting is another matter – different from setting the election day. In fact, ballot casting could be done on different days. The Election Commission always holds advance voting and voting outside the constituency and outside the country a week before the election day. In such a case, no legal expert, judge or Ombudsman considered “that election [to be on] a different day”. There has been consensus for nearly two decades that casting ballots can be done on different days and places as long as the result of the voting was not influenced. Casting ballots any day does not make any difference to the result of the election. The election is still valid.
The judgement last Friday posted a bad pointer to political stalemate. Nobody knows when the new election will take place and in what condition it could be valid. The protesters welcomed the court judgement but will not end the protest. Leader Suthep Thaugsuban said his group would disrupt the new election again unless it was held after the “country reform” he desires.
With well-intentioned collaboration of the court and other independent organisations that never deemed the election disruption to be illegal, the election in Thailand is now being held hostage by the protesters as a political bargaining chip. They said they would not allow an election unless their men were installed into power.
That meant the people of Thailand would not have a chance any more to use an election to reflect their free minds on changing and installing a new government to run the country.