THAI ELECTION COMMISSION CONSIDERS

C O N F I D E N T I A L SECTION 01 OF 03 BANGKOK 000011

SIPDIS

SIPDIS

NSC FOR PHU

E.O. 12958: DECL: 01/01/2018
TAGS: PGOV PHUM PREL KDEM TH
SUBJECT: THAI ELECTION COMMISSION CONSIDERS
DISQUALIFICATIONS

Classified By: Deputy Chief of Mission James F. Entwistle, reason 1.4 (
b) and (d).


1. (C) SUMMARY: The Election Commission (ECT) has set up a
reasonable system for handling fraud complaints, according to
a US-funded election assistance organization briefing.
Although the election law gives the ECT significant
independence, its authority is not unchecked: there is a
process to review the most serious penalties, and the
Election Commissioners may face malfeasance charges if they
act improperly. Nonetheless, as the ECT sorts through
hundreds of vote fraud claims, there is no guarantee there
will be no bias or mistakes in the process. The ECT should
make its initial official announcement of election results
(in races with no outstanding fraud allegations) and
disqualifications this week. It is not clear yet whether the
disqualifications will materially affect the numbers of seats
each party won, and thus change their incentives for entering
a coalition. In any case, it is important that the ECT be
seen to do a credible job addressing fraud complaints. If it
does not, it will further undermine the Thai people's faith
in elections and in the democratic process. END SUMMARY.


2. (SBU) According to USG-funded advisors with the
elections-assistance NGO IFES, the Election Commission of
Thailand (ECT) has set up a reasonable system for handling
the vote fraud claims arising from the December 23 election.
IFES provided a detailed read-out of the ECT process on
December 28, based on their consultations with the ECT, NGOs
and others.

RED CARDS/YELLOW CARDS - THE RULES
--------------


3. (U) Under the Constitution and election law, the ECT is
responsible for examining election fraud claims up until 30
days after the election. The ECT has authority during this
time to order re-run elections in constituencies if there is
"convincing evidence that the election or vote counting was
not conducted in an honest and fair manner" (Organic Act on
Elections, Section 109). Normally, the ECT will identify one
or more candidates as having acted improperly in such a case.
This is colloquially referred to as issuing a "yellow card."
Under these circumstances, all the candidates in the
constituency may compete again, even those accused of
misconduct.


4. (U) There is a more serious penalty if the ECT finds that
a candidate violated the Organic Law on Elections, or
supported or connived in such a violation by someone else. If
this caused the election to be "dishonest and unfair," then
the ECT will order a re-run election AND the candidate will
lose his right to run in that election or any other election
again for one year (Organic Law on Elections, Section 103).
This is colloquially referred to as issuing a "red card." In
addition, the red-carded candidate will be liable for the
expenses of re-running the election. Section 103 also
includes provisions to dissolve a political party if a party
leader "connives at or neglects or knows of but does not
rectify" such a violation. IFES told us that, so far, they
have not heard ECT officials discuss possible dissolution of
any party as a result of fraud claims examined to date.
However, the law does provide for the Constitutional Court to
take this step, based on a motion filed by the ECT.


5. (SBU) Before a red card can be issued, however, the case
must be referred for review to an "Inspection Committee"
(Organic Law on Elections, section 105). This Inspection
Committee is made up of the chairman of the 12 committees of
the Law Council, an senior advisory group under the Prime
Minister's office. These are not salaried RTG employees;
most are distinguished retired jurists, judges or civil
servants. They serve ad hoc; for example, they also review
all draft legislation before it is submitted to the
Parliament. The ECT is not required to abide by the opinion
of the Inspection Committee, but it normally has in the past.
In addition, if the ECT goes ahead and issues a red card
against the Inspection Committee's advice, they must print
both the Inspection Committee's recommendation, and their
reasons for disagreeing with it, in the Government Gazette.
(Note: This review process is an important protection against
capricious decisions by the ECT to disqualify candidates. It
is also an important protection for the ECT members, as they
know they can face malfeasance charges if they issue red
cards in an unfair manner - review by this Inspection
Committee may help to insulate them from legal charges of
bias. End note.) The new election laws provide very stiff

BANGKOK 00000011 002 OF 003


penalties for election malfeasance on the part of officials,
including 1-10 years imprisonment.


6. (U) The election law also provides the ECT with measures
to take against fraud in the proportional voting. According
to section 110, if there appears "convincing evidence that a
political party ... acted in violation of the Organic Act,
... and if the Election Commission considers that such act is
likely to cause the election to be dishonest and unfair, the
Election Commission shall have the power to announce that the
ballot papers with votes in favor of such political party are
invalid and not be counted as votes only for the area where
such act occurred." So far, there has been no discussion in
the ECT's public statements of applying this provision.


7. (U) After the ECT's mandate to issue red/yellow cards
expires, the law provides for unresolved fraud cases to be
referred to the Supreme Court for decision. There is some
uncertainty about exactly when the ECT's mandate expires, but
no interpretation gives it more than 30 days after the
elections. These decisions by the ECT and the Supreme Court
are final and the law does not provide a process for appeals.


PROGRESS SO FAR
--------------


8. (SBU) According to IFES, the ECT so far has rejected
about 800 cases that were reported but had no substantiating
evidence (many of these may have come from anonymous tips.)
They are currently working on about 200 cases that have
already made the cut for further consideration, and more
cases continue to come in, IFES told us. The ECT has 1200
investigators in the field. The Lawyers Council of Thailand,
a prominent legal NGO, also has pro-bono attorneys in the
field, to assist voters who want to bring evidence of fraud
(for example, by escorting witnesses to the police, or
helping to write up the cases.) The ECT has set up a process
by which the professional staff of the ECT review the
incoming cases; IFES said that the system would allow these
complaints to be "filtered and examined." IFES thought that
the system was complicated, but should be adequate to handle
the number of claims. They note, however, that there is no
way to assure that there will be "no bias, no mistakes, no
sloppiness" in the process.


9. (SBU) Of the 200 cases mentioned above, IFES understands
that 48 are ready for consideration by the five Election
Commissioners. These are, they believe, cases that either
came in before the election or right after the vote, or those
with strong evidentiary support that clearly merited
consideration. These are likely to be the cases that result
in the first formal announcement of re-run elections. We
believe that this round will take place on Jan 13, but this
has not been officially confirmed yet.


10. (C) On the atmospherics at the ECT, IFES said that the
ECT Chair Aphichat Sukkhakanon appears to be very cautious
and methodical. He recognizes that a red card is a serious
penalty, and he is inclined to err on the side of caution.
Another outspoken Election Commissioner, Sodsri Sattayatham,
appears much more inclined, at least in her rhetoric, to take
a tough stance. She also speaks regularly to the press, in
some cases criticizing her fellow commissioners and making
other unhelpful comments. The deputy Secretary General of
the adjudication department, an IFES contact, appears to be
taking an "evidence based" approach to fraud claims, based on
what IFES could observe. At least at the staff level, the
ECT officials appear to be inclined to be cautious as well in
reviewing the claims received. (Comment: It is worth noting
that the members of the ECT were not chosen by the post-coup
junta. They were voted in by the former Senate (widely
believed to be under the influence of the former ruling Thai
Rak Thai party) to replace the Election Commissioners who
were convicted in July 2006 of improper management of the
failed April snap election. They do not owe their positions
to the junta. At the same time, as judges and lawyers, they
are a part of the class of Bangkok professionals and
officials who have been so strongly opposed to former prime
minister Thaksin and his party. End comment.)

HOW LONG WILL THIS TAKE?
--------------


11. (U) The ECT must make an announcement by January 4,
certifying the winners in those races without pending fraud
issues. As already noted, the ECT has thirty days from the

BANGKOK 00000011 003 OF 003


date of the election to issue red/yellow cards; they are
expected to make rolling announcements in January as fraud
accusations are resolved, with additional MPs-elect being
certified, or additional re-run races announced. Fraud
complaints can be filed up to 30 days after the election
results are announced. This means that fraud complaints can
be filed at least until the beginning of February, after the
new Parliament begins work. If fraud complaints are filed
after the ECT's 30-day mandate is up, the cases go to the
Supreme Court for adjudication, and the accused MP will be
suspended while the Court decides the case.


12. (C) Thus, it is not clear exactly how long this whole
process will take. In 2001, there were at least five rounds
of re-runs stretched over about five months, involving over
60 candidates who were red- or yellow-carded. (2001 was the
last election without a strong incumbent party in control,
and that ECT is generally regarded as having acted correctly
and in accordance with the law. In contrast, the discredited
ECT that ran the 2005 elections issued only two yellow cards,
both to Democrat party winners.) Some statements from the
ECT indicate that they plan to have all the current fraud
claims adjudicated by mid-January, but other statements
indicate that the process might take longer. We may have a
better idea after the first official election results Q
announced this week.

COMMENT
--------------
Q13. (C) IFES has said that, since the laws and regulations
were passed so recently, almost every official they spoke to
had at least one miscQeption about what exactly the law
said. We have also found widespread misunderstanding of the
law and procedures governing the fraud adjudication process.
The press reporting on the adjudication process is atrocious,
even by Thai standards. The ECT is doing a terrible job of
explaining to the public exactly what it is doing. This may
be understandable on one level, since the commission is so
swamped, and since cases under investigation have to be kept
confidential for obvious reasons. But these problems could

SIPDIS
seriously undermine public faith in what, so far, has been a
generally accepted election process.


14. (C) Whatever the final number of red/yellow cards and
election re-runs, and regardless of the final tally for each
party, it will be important for the ECT to be seen as having
done a credible job. Supporters of the pro-Thaksin People's
Power Party (PPP),who fear military or other interference
with the ECT, must be satisfied that penalties were awarded
on the basis of evidence, with reasonable, if not perfect,
fairness. Others, who fear that the PPP's rush to assume
power will cow officials and smother the fraud
investigations, have to believe that the ECT was able to root
out at least a reasonable amount of the fraud and
vote-buying. Absent confidence in the ECT's conduct in this
crucial period, public opinion could revert to the
widely-held pre-coup view that electoral democracy just
doesn't work in Thailand.

JOHN