SUPREME COURT TO RULE ON ELECTION CHALLENGES

C O N F I D E N T I A L SECTION 01 OF 02 BANGKOK 000172

SIPDIS

SIPDIS

NSC FOR PHU

E.O. 12958: DECL: 01/15/2018
TAGS: PGOV PHUM PREL KDEM TH
SUBJECT: SUPREME COURT TO RULE ON ELECTION CHALLENGES

REF: A. BANGKOK 156 (WINNERS RUMORS)


B. 07 BANGKOK 6226 (TOP FIVE THINGS)

C. 07 BANGKOK 6182 (RECORD-SETTING ADVANCE VOTE)

D. 07 BANGKOK 151 (PRASONG)

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


1. (C) SUMMARY: The Supreme Court will rule on Friday on
complaints challenging the legality of the December 23
elections. The most vulnerable point may be the advance
voting, which some claim was unconstitutional. One legal
expert said it was "50/50" whether the Supreme Court would
void the advance voting results, but a former Election
Commissioner told us it was unlikely. Even most of those
strongly opposing the prospect of the pro-Thaksin party
forming the next government do not appear to be agitating for
the Supreme Court to intervene, and this case does not appear
to be part of any conspiracy. It does underscore that the
ECT and other officials may not fully understand the new
constitution and other laws, and this will further complicate
the transition back to an elected government. End summary.


2. (C) The Supreme Court has announced that it would rule
Friday, January 18 on several challenges to the legality of
the December 23 parliamentary election (ref A). A Democrat
Party candidate petitioned the court for judicial review on
four points:
-- is People's Power Party (PPP) a "nominee" of the dissolved
Thai Rak Thai party, and if so, should it have been allowed
to compete in the election?
-- is PPP leader Samak a "proxy" for former PM Thaksin, and
if so, should he be prohibited from fulfilling the
responsibilities of party leader?
-- was the distribution of VCDs showing former PM Thaksin
endorsing the PPP a violation of election law which make the
election unfair?
-- was the advanced voting, held on December 15 and 16, valid
and if not, should the advance voting or the election itself
be voided?

"50/50"
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3. (C) Two knowledgeable contacts had quite different views
on the likely impact of the Supreme Court case. Distinguished
jurist Borwornsak Uwanno, meeting with Ambassador and
staffdel Grove on January 16, noted that the convening of
Parliament and the naming of a new government could be
delayed if the Supreme Court ruled that there were problems
with the advanced voting. He estimated the chances as
"50-50" whether the Court would rule that the advance voting
was improper. Borwornsak said that there had been no
malicious intent on the part of the Election Commission (ECT)
in organizing the advance vote, "but it is not allowed" by
the Constitution, (which states that the election must be
held on the date specified in the Royal decree, and be on the
"same date throughout the Kingdom.") Borwornsak did not
appear to believe that the Supreme Court would consider
voiding the whole election; rather he suggested that it might
require that only the advance vote be voided. This would
necessitate a nation-wide recalculation of election results
and possible redistribution of seats. (As reported, there was
a unprecedented turnout for the advance voting, with nearly 3
million voters turning out - ref C). Borwornsak seemed
primarily concerned about the advance voting issue, and did
not raise concerns about the claims targeting PPP
specifically.


4. (C) Borwornsak added that some opponents of the PPP might
see an advantage to delaying the new Parliament, as certain
political figures are working behind the scenes to try to
engineer a grand coalition government including both the PPP
and Democrat Parties. (He named Prasong Soonsiri,
self-confessed conspirator in the September 2006 coup - ref
D) He also said, however, that there would be little
support, even among PPP opponents, for any outcome that left
the ineffective Surayud government in place for several more
months.

ON THE OTHER HAND...
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5. (C) Former election commissioner Gothom Arya told us that

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it was unlikely that the Supreme Court would intervene in the
election. First of all, he thought that the cases would more
properly be considered by the Constitutional Court. Second,
he said that advance voting had been held in the past without
objection (albeit under a different constitution and set of
laws). Finally, he said that the courts in previous rulings
had deferred to the ECT as having extensive authority to
manage the conduct of the election.

HOT POTATO?
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6. (C) Contacts at the Supreme Court will not venture to
guess how the judges will decide this case, nor to speculate
on the legal arguments involved. They did note that the
Supreme Court cannot rule to dissolve a party; that is the
jurisdiction of the Constitutional Court. It appears that
one possible outcome on Friday is for the Supreme Court to
issue an order to the ECT requiring it to submit some or all
of these issues to the Constitutional Court for review which
could delay the the entire government-formation process.

COMMENT
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7. (C) If the Supreme Court determines that the advance
voting was improper, there are really no good solutions for
the embattled ECT. About nine percent of total vote took
place on the advance voting days, and it would not be widely
acceptable to disenfranchise those citizens, particularly if
the decision led to significant changes in the winners and
losers. It is hard to understand how the advance voting
could have been organized without someone noticing it was
unconstitutional; it has been a recurring problem, however,
that officials are unfamiliar with the new legal and
constitutional framework (and sometimes not all that familiar
with the details of the old framework). This does not appear
to be part of any considered plan on the part of the military
or current government to disrupt the seating of the new
Parliament, and anti-Thaksin advocates are not putting public
pressure on the court to take a tough stance. But this case
could further complicate the return to elected government and
perhaps undermine the confidence of the people in the
democratic process.
JOHN