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Risk of road map failure over legality of MPs election bill

Mar 19. 2018
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INTENTIONALLY or not, the legislative assembly’s decision not to seek a Constitutional Court verdict as to whether the MPs election bill is constitutional seems to be a time bomb that could eventually affect the entire political road map.

After recently passing bills on the election of MPs and selection of Senators – the last two organic laws required for holding an election – the National Legislative Assembly (NLA) resolved to seek a court decision only on the constitutionality of the Senate selection legislation. 

The decision was made despite views pointing to certain “problematic” points in the election bill and warnings of a legal tangle that could severely affect the election schedule if relevant authorities are forced to seek a Constitutional Court verdict on the bill’s constitutionality at the last minute.

NLA president Pornpetch Wichitcholchai said the assembly had decided to seek a court verdict only on the bill about the Senate selection because it did not want to cause a further delay to the election. Following repeated postponements, Prime Minister Prayut Chan-o-cha promised last month that the election would be held “no later than” February next year.

Pornpetch added that a Constitutional Court ruling could also be sought for the election bill by any relevant agency, including the Election Commission, in the future.

There is a risk that the next election could be postponed indefinitely if the Constitutional Court rules that the bill on Senate selection is unconstitutional. And the risk could be even higher if, in the future, the bill on the election of MPs is also brought to the court.

Article 148 of the Constitution states that any bill shall lapse if the Constitutional Court decides that it has provisions that are contrary to or inconsistent with the Constitution, or it is enacted contrary to the constitutional clauses that such provisions of the bill form an essential element thereof.

If the court rules the Senate bill unconstitutional, there will not only be a further delay to the next election but also a severe impact on the core of the political road map. 

A bill that is found to be unconstitutional needs to be redrafted from the beginning. And the Constitution may need to be amended, as no current clause states clearly who would do the job of drafting the legislation. The term of the existing Constitution Drafting Commission (CDC), which has been responsible for writing all the organic laws required by the Constitution, ends as soon as the last such legislation is promulgated.

Also, the charter does not state in detail when such an amendment should be completed or the drafting of a new bill finished.

As a result, the ruling junta would, in effect, get a blank cheque on matter.

If the blow from a court verdict on the Senate selection bill is not enough to disrupt the road map, a new legal headache caused by the election bill might prove to be the second blow in a one-two punch.

NLA member Kittisak Rattanawaraha yesterday reiterated his warning that certain clauses in the election law could cause the election to be ruled void. He pointed to a clause that allowed disabled and frail elderly voters to be assisted in casting their ballots, adding that this was against the constitutional requirement that voting must be done in secret.

Meanwhile, authorities have admitted that omitting the MPs election bill from the Constitutional Court petition was a risk. If, in the future, the case were brought to court, the election would inevitably be affected, they implied.

Deputy Prime Minister Wissanu Krea-ngam said yesterday that after the promulgation, it was no longer possible for authorities to lodge a petition unless a lawsuit regarding the bill’s constitutionality had already occurred. That was a risk, he admitted. 

The CDC has expressed its desire for the Cabinet to seek a court ruling if the NLA does not do so. Wissanu said the matter had not yet been discussed by the government, but Prime Minister General Prayut Chan-o-cha had the authority to take the issue to the court.

After the NLA submits the bill to the prime minister, the law would be held for five days in case anyone, including politicians, wanted to challenge it, Wissanu said.

After that period, the Cabinet would have another 20 days to decide if they wanted to seek a court ruling over the bill’s constitutionality, he said. If not, the bill would be submitted for royal endorsement.

The concern over the petition now lies with its impact on the election road map. Wissanu said that a ruling over legality usually did not take a long time and, although the election could be postponed, it would not be for a long period of time.

Udom Rathamarit, a legal expert and constitutional drafter, yesterday said the main priority should be to ensure the clarity of the law before the election.

“The impact on the road map is worrisome and the NLA may have considered that. But if we enforce the law and people are affected, I’m not sure if they will complain with the court or if the election will be nullified,” Udom said.


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