The February 2 election is set to trigger a lengthy legal battle between the two rival political camps, which are ignoring the negative consequences of the country being dragged into a power vacuum.
It is quite certain that the February 2 election will be held, with the likely consequence being that voting cannot be carried out in many constituencies and provinces. No one knows when the voting in these provinces will be able to take place, or how many rounds of advance voting and absentee voting will be carried out, given that anti-government protesters are determined to block the elections.
The possibility of completing the whole process of the February 2 poll is thus inevitably thrown into doubt. This may not be surprising; some political parties have rejected it from the very start.
Legal specialists such as former Senate speaker Meechai Ruchuphan and People's Democratic Reform Committee leader Suthep Thaugsuban believe that the solution is to nullify the election - with the April 2, 2006 election serving as an example.
Meechai said the most likely reason for the February 2 election being invalidated would be that voting cannot be held on the same day in every province across the country, not because an insufficient number of voters will cast ballots.
Suthep said the PDRC protesters and the Democrats are not afraid of being deprived of their political rights for failing to vote, because they believe the poll will definitely by nullified. Once the matter is brought to the Constitutional Court and the election is nullified, he said, a new Royal Decree for a new election will be issued and the Democrats would be able to run in that election. All parties, including the government, will accept the new election because the February 2 vote is coming to a dead-end, he said.
This issue was the topic of discussion between the government and the Election Commission at their meeting on Tuesday. The government decided to proceed with the election even though it knew it would be invalidated. But if the government defers the election, it may face suits and court cases. Some legal specialists, however, doubt that failing to hold voting on the same day across the country would lead to the election's invalidation, as the law allows for voting to be postponed in areas hit by disasters or riots.
Caretaker Deputy Prime Minister Phongthep Thepkanjana is among those who dismiss failure to hold an election everywhere simultaneously as grounds to invalidate the vote. He insisted that if voting cannot be carried out or completed on the date stipulated on the Royal Decree due to certain problems, voting can be held on another day without the government having to issue a new Royal Decree. He asserted that this does not violate the Constitution.
"For instance, in constituencies where MP candidates were unable to register, the EC has to hold a new election. Or in instances when the EC red-cards candidates, it has to hold a new election [in their constituencies]. This is possible if the law is enforced in a straightforward manner," Phongthep added.
Only some people would be convinced by the court justifying the nullification of the poll on the grounds of failure to hold a vote on the same day across the country.
Why 2006 vote was nullified
In a landmark verdict, the Constitutional Court on May 8, 2006 ordered a new poll after nullifying the April 2 election.
The verdict stated:
- The Election Commission had unfairly set the election day;
- The EC had violated voters' privacy because bystanders could watch them ticking their ballot papers because of the way a polling booth was positioned.
The ruling was based on a petition filed by Thammasat University law lecturers. The petition raised four issues: the fairness of the April 2 election day; whether the configuration of the ballot booths met constitutional guarantees on voters' privacy; the funding of small parties; and the endorsement of balloting results without a formal review.
Prior to the ruling, the Ombudsman had also brought up for the court's consideration the issue of a major political party hiring small parties to run in the election.
The judges deemed it within their purview to address two questions: the scheduling of the election and voter confidentiality, according to the court's then secretary-general Paiboon Warahapaitoon.