The 2019 Elections, of the NCPO, by the NCPO, and for the NCPO

เมื่อ 7 พ.ย. 2561

The forthcoming elections in 2019 will be the first under the set of rules enshrined in the Constitution 2017 and its ensuing organic laws. Legal frameworks are set to subject political parties to many challenges in the election battlegrounds. Coupled with other factors including the selection of the Election Commission of Thailand (ECT), the NCPO announcements banning political parties from doing activities, special power invoking Section 44, etc., it is obvious that these elections have been designed to make political parties most vulnerable. Hence, the “Elections of the NCPO, by the NCPO and for the NCPO”

The NCPO may not resort to traditional warfare or use its weapons to seize an overt control of elections. But given its protracted reign, NCPO has gradually expanded its grip over various organizations and issued rules to domineer elections. Three NCPO’s endeavors that have been played out in these elections could be observed.

The NCPO’s Elections
Write their own rules	Interpret and enforce the rules by itself	Be a player running in election
Appointting Constitutional Drafting Committee (CDC) - Fixing the number of MPs and voting methods - Fixing how to win electoral seat based on MMA method - Having 250 NCPO-selected Senators - Having the way for non-MP to become Prime Minister - Allowing Section 44 to remain effective	Selecting members of Election Commission - Allow party registration - Control qualification of candidate - Disqualify candidate suspected to have committed fraud - Remove party’s executive members - Control how policies are developed and publicized.	Palangpracharath Party Other political parties pledging their support to the NCPO - Action Coalition for Thailand Party - People Reform Party Etc.
Appointing NLA and NRSA and add additional question - Allowing selected Senators to vote to choose Prime Minister	Selecting members of the Constitutional Court - Bestowed with extra power to disband political party
Having CDC and NLA draft organic laws - Organic Law on Election Commission allowing the ECT to slap an orange card to disqualify a candidate - Organic Law on Political Party making formation of new party difficult, while making party dissolution easier - Organic Law on Elections to extend time prior to elections - Organic Law on Election of MPs and Selection of Senators	Fixing Election Day - Putting off Election Day, at least five times
Issuing Announcements/Orders to ban political activity - Announcement no. 57/2557 barring political parties from mobilizing - Announcement no. 97 and 103/2557 to control media’s content - The Head of the NCPO Order no. 3/2558 to ban political gathering of five persons and upward - The Head of the NCPO Order no.13/2561 to relax political restriction including allowing party meeting	Enforcing Announcements/Orders - To allow or disallow certain political activities - To arrest, charge and prosecute a person - To instruct NBTC to keep in check political content broadcast by media

1. The NCPO writes its own rules

1.1 The Constitution 2017

NCPO has appointed the Constitutional Drafting Committee (CDC) to draft the Constitution and has installed an NCPO Member, Meechai Ruchuphan, as Chairperson of the CDC. The drafting process has been held from public view and has not been subject to public participation or criticisms. People only got to see the draft, when it was nearly done and released to the public.

The Draft Constitution was put down for a referendum vote on 7 August 2016. It was an unfair referendum since it was conducted amidst attempts to stifle access to information. The Referendum Act has been issued to restrict public campaigns and the Head of the NCPO Order has been invoked to arrest those opposed to the Draft Constitution.

The Constitution was promulgated on 6 April 2017 spelling out a framework for a restoration of parliamentary rule. It provides for 500 MPs, 350 of which from constituency-based elections, and 150 proportional representation. What is unique is the adoption of a new method for the election of party-list MPs based on the so called MMA system. As a result, parties that gain many votes shall have fewer number of list MPs whereas parties that garner a moderate number of votes shall see a rise in their list MPs.

In addition the Constitution’s Provisional Clause discreetly provides that the first chamber of 250 senators shall be selected by the NCPO and a non-MP can be chosen as Prime Minister.

Sections toward the end of the Constitution also provide for a method to prolong the power of the NCPO post the elections and even bestow on them power to control elections. Section 267 stipulates that NCPO shall remain in power until the government is set up after the elections. Meanwhile, Section 265 allows NCPO to still be able to invoke special power per “Section 44”. And Section 279 provides that all Announcements and Orders issued by the NCPO that restrict rights and freedoms shall remain effective.

1.2 The annexed question

During the Constitutional Referendum, the NCPO added an additional question. It looks as if they allowed people to have more say in the decision making. But in reality, the additional question has been chosen by the National Legislative Assembly (NLA) at the advice of the National Reform Steering Assembly (NRSA). Both chambers have been established by the NCPO itself.

The four-line long question written with lots of confounding rhetoric intends to confuse the voters. But after the Referendum has been completed and consent given, more clauses have been added to the Draft Constitution which in sum allows the NCPO to select 250 senators, and these senators will have the power similar to the MPs-elect to choose the next Prime Minister.

1.3 The Organic Laws

In the wake of the promulgation of the Constitution, organic laws are supposed to be enacted. The Constitution’s Section 267 is written to virtually give a ‘blank cheque’ to the CDC to draft the ten organic laws arbitrarily which shall then be approved by the NLA

There are four organic laws related to elections including the Political Party Act which has been written to intentionally make it very difficult for the registration of a new pollical party while make it easier to dissolve a party or to disqualify a candidate. It even suppresses an attempt by a political party to develop a populist policy. The Election Commission Act was rewritten to bestow on the ECT extra power to suspend an election or to suspend the right to run in election of any candidate suspected to commit an electoral fraud.

The Organic Law on the Selection of Senators provides for detail as to how the NCPO can hand-pick the senators whereas the Organic Law on the Election of MPs provides that a valid candidate must never have been convicted and sentenced to jail by the Court. The provision simply disqualifies many veteran politicians. It even extends the grace period of time to prepare for elections for another 90 days as a result of which the ECT can fix an election day anytime within 240 days since this law has come into effect.

1.4 Announcement and special decrees by NCPO

NCPO has invoked special power to issue at least 536 Announcements, Orders and Head of the NCPO Orders. Many of them have been decreed to curb political activity and restrict the right to freedom of expression which will certainly affect the atmosphere leading to the elections.

The NCPO Announcement no. 57/2557 prohibits political parties from meeting or carrying out any political activity. It has been effective since the seizure of power by the NCPO. And this Announcement shall remain effective making it impossible for either existing or new political parties to do any work. It might hamper their ability to prepare their policies, recruit candidates, communicate with the public and carry out any political campaign prior to the elections.

NCPO has later issued the Head of the NCPO Order no. 53/2017 to set out a new timeframe in which all political parties are required to carry out their routines including the verification of their party members, meeting to elect executive members, establishment of party branches, etc. They are required to do all these within the new timeframe. Other activities apart from these are strictly prohibited except if an approval has been obtained from the NCPO. The Head of the NCPO Order no. 13/2018 has later been put in place to curb online campaign and to allow existing political parties to carry out some office work.

Nevertheless, the Head of the NCPO Order no. 3/2558 remains effective and prohibits a political gathering of five persons and upward except if an approval has been obtained from the NCPO. The law has been used to stifle freedom of expression and prohibit any activity and hundreds of civilians have been prosecuted for its violation. Meanwhile, the NCPO Announcement no. 97, 103/2557 has been used to control the broadcast of political content by media. All media are required to broadcast any information issued by the NCPO as well.

2. NCPO as the interpreter and enforcer of the rules at the same time

In addition to writing its own rules, NCPO has the mandate of enforcing the rules including also many special laws it has issued including the constitutional organic laws and other Announcements and special decrees. The veterans behind the drafting of these decrees include Meechai Ruchuphan, Wissanu Krea-ngam, and Pornpet Vichitcholcha; all rotate their roles to help explain how these rules are interpreted. Basically, these few individuals monopolize the interpretation of the rules.

The past four years saw the attempt by NCPO to gradually expand its grip over independent organizations making them NCPO organs. This has virtually left the enforcement and interpretation of laws related to elections in the hand of the NCPO.

2.1 The Election Commission of Thailand (ECT)

The Election Commission of Thailand or ECT is supposed to be an body independent of administrative and political powers and to perform its duties to ensure transparent and fair elections. But members of the current ECT have successfully been selected only when they satisfied NCPO.

Apparently discontented with the outgoing ECT which had been performing its role since before the seizure of ruling power, the NCPO has invoked Section 44 to issue the Head of the NCPO Order no. 4/2018 to abruptly suspend an Election Commissioner, Somchai Srisutthiyakorn, from his office as and even draft an organic law to “set zero” and eventually remove all members of the previous ECT as well as to conduct a new recruitment process.

On 22 February 2018, the NLA voted to reject all the seven nominees as members of the ECT and started a new recruitment process. On 12 July 2018, the second batch of seven nominees were tabled for consideration of the NLA and only five were approved. Thus, another recruitment has to be conducted to acquire the remaining two members. This clearly demonstrates how NCPO has arbitrarily exercised its power through the NLA to select just the nominees that satisfy them as members of the ECT.

This incumbent ECT designated by the NCPO to take charge over the elections shall perform its duties as provided for in the Political Party Act and the EC Act including political party registration, candidate vetting, policy vetting, and issuing ‘orange card’ to disqualify a candidate believed to have committed an electoral fraud. The ECT could even remove executive members of a political party if it is deemed that they have failed to ensure their party members comply with the law.

The ECT’s draconian powers shall have ramification over the elections and could conveniently “remove” any candidate of an anti-NCPO party from contesting in the elections.

2.2 The Constitutional Court

The Constitutional Court plays an important role as far as elections are concerned since it has the power to disband a political party should it find any political party acts to dismantle a democratic system with the King as the Head of the State or acts to obtain ruling power through any means which is not an act within the purpose of the Constitution or when it is found that a political party is domineered or controlled or led by an outsider who is a non-member.

In principle, the Constitutional Court is supposed to be independent and not subject to the NCPO. But among the incumbent judges of the Constitutional Court, two of the nine including Nakharin Mektrairat and Punya Udchachon have been recruited with approval from the NLA whereas the other five including Nurak Marpraneet, Chut Chonlavorn, Boonsong Kulbupar, Udomsak Nitimontree and Jaran Pukditanakul whose terms were supposed to have expired since 2017, have had their tenure extended by the Head of the NCPO Order no. 24/2017 issued by the NCPO and they shall remain in office until the new Organic Law on Constitutional Court is promulgated. Apart from not ‘setting zero’ the Constitutional Court, the NCPO has even extended its terms until the first meeting of the parliament and the elections. It clearly shows how judges of the Constitutional Court will still be available to protect the NCPO until after the elections or as long as they want.

2.3 Announcement and special decrees by NCPO

The Head of the NCPO Order no. 3/2558 prohibits a political gathering or assembly of five persons and upward “save for a permission has been obtained from the NCPO”. It does not, however, spell out clearly as to when a political assembly can be considered legal and endorsable. It has subject everything to the boundless discretion of the NCPO who can interpret and enforce the law at its whim. The Order also provides that a military official designated as public order maintenance officer has the power to summon a suspicious person and hold them in custody at a military barrack for up to seven days and to even carry out a raid, an arrest, or prosecution any person.

Media control according to the NCPO Announcement no. 97 and 103/2557 NCPO has designated the National Broadcasting and Telecommunications Commission (NBTC) to interpret and enforce this Announcement on its behalf. The NBTC Members have, however, been recruited based on a new law amended by the NLA. In the new recruitment protocol, the public are deprived of their role in the selection of the NBTC members paving the way for military personnel to rule over the organization. As to the punishment of media, the NCPO has power to set up a special committee to monitor media and to encourage the NBTC to act against certain media.

In the course of arrest and prosecution and the issuance of orders to censor media invoking the NCPO Announcements and Orders, the individuals/agencies performing such duties shall enjoy legal immunity provided for by the NCPO. They thereby cannot be held liable for civil, criminal and disciplinary action.

The worst among NCPO Announcements as far as the elections are concerned is the Announcement no. 57/2557 which prohibits pollical political parties from organizing any activities since it does not include any exceptions; it does not say when or how a political party can be allowed to carry out their political activity.

Despite calls for the NCPO to “unlock political restriction” meaning revoking the Announcement and restoring the atmosphere inducive to the elections, the NCPO has turned his demand down. Instead, it has invoked Section 44 simply to give some “political reprieve” allowing political parties to carry out their routine business and to do a few other things as sanctioned by the NCPO on a case by case basis. All parties concerned with the elections can simply cross their fingers and wait for the NCPO to relax political restrictions having no idea when and what it will allow to let loose.

Until October 2018, political parties are still barred from soliciting donation, developing and publicizing their policies, or campaigning. They have no idea when all these shall be made possible. It is entirely subject to the NCPO’s exclusive power.

2.4 Fixing the election day

According to the Roadmap spelled out in the Constitution 2017, the elections have to be held latest in November 2017. But soon after the Draft Constitution was approved in the Referendum, excuses from amending the Constitution according to the annexed questions and the Constitutional amendment according to remarks made by His Majesty the King have been cited to put them off time and again.

But in the wake of the promulgation of the Constitution, it appeared the elections were to take place in late 2018. The NLA just intentionally put elections off extending the grace period of time before the electoral laws became effective for another 90 days. The last-ditch effort was also made to put off the elections by asking the Constitutional Court for its opinion regarding the electoral laws prior to their promulgation.

It is clear that the election day has never been set according to the “Roadmap” spelled out in the Constitution. If the NCPO found it was not ready or if it was not yet willing to descend from power, it would have resorted to ‘techniques’ to extend the timeframe for elections until everything looks tidy for them. Until the NCPO is confident that everything is put to its advantage, it would clearly fix the election day.

Even after the electoral laws have been enacted and published in the government Gazette, and the power should then be returned to the ECT to fix the election day, but when the ECT said ambivalently about elections within 24 February 2019, General Prayut Chan-o-cha has simply responded vaguely and added that if it could not be done in time, we would have to figure other way round/

3. NCPO is a player in the election battleground

While political parties and those wanting to run in politics are prevented from doing any activity, some political parties have been registered and pledged their support for the NCPO and General Prayut Chan-o-cha as Prime Minister even if he does not run in an election.

One of the most obvious proponents of General Prayut is the Phalang Pracharat Party led by core members of the ‘Sam Mitra Group’ including Suriya Juangroongruangkit, former Deputy Prime Minister and former Minister of Industry during the Thaksin Shinawatra government, Somsak Thepsuthin, core member of the Machima Group and Wang Nam Yom Group who used to be part of the Thai Rak Thai Party and Somkid Jatusripitak, former Deputy Prime Minister in charge of the economy under the Thaksin Shinawatra government and who is now Deputy Prime Minister in the General Prayut Chan-o-cha government and a member of the NCPO.

As to its direction, a founding member, Suriya Juangroongruangkit explains and clearly emphasize his support for General Prayut Chan-o-cha as he wants to see political stability.

During the meeting to elect executive board, Uttama Savanayana, Minister of Industry was elected as party leader, Suvit Maesincee, Minister of Science and Technology as deputy party leader, Sontirat Sontijirawong, Minister of Commerce as secretary general, and Kobsak Pootrakool, Minister attached to the Prime Minister's Office as spokesperson. All of them declare they are ready to run as candidates despite their being active members of the cabinet. They vow to resign when it is the right time, though.

The Action Coalition for Thailand Party is another player worth the watch since it is a gathering of former core members of the People's Democratic Reform Committee (PDRC) led by Suthep Thaugsuban, Suriyasai Katasila, Chak Phanchupet, and Anek Laothamatas, the Chairperson on the Committee for Political Reform. It was decided in the party’s meeting to have M.R. Chatu Mongol Sonakul as party leader as proposed by Suthep Thaugsuban.

Several other political parties have also declared their intention to run in politics and pledged their support of the NCPO including the People Reform Party (PPR) led by Paiboon Nititawan and several military Generals, Palang Chart Thai Party led by Pol Lt Gen Songklod Thipmanee, Nationalism Party led by Krit Trakkabutra, former MP of Matubhum Party, New Palangdharma Party, Thai Citizen Power Party, etc.

Meanwhile, the NCPO, as the writer of the electoral rules and the interpreter and enforcer of the rules, has shown its inconsistency in their exercise of discretion. But it appears there are many players to contest in the elections and several of them have pledged their support for the protracted reign of the NCPO post elections. It is interesting to monitor the situation closely and observe how the laws shall be interpreted and enforced equally and fairly or not and or will they be applied indiscriminately to allow the NCPO to control the elections as they wish.

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เลือกตั้ง 62: ของ คสช. โดย คสช. เพื่อ คสช.

7 August referendum cannot be used to claim legitimacy of power under new constitution.

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The 2019 Elections, of the NCPO, by the NCPO, and for the NCPO