In an historic judgment the Criminal Court of Thailand held yesterday (July 25, 2006) that the Election Commission was guilty of malfeasance and illegal assistance to the Thai Rak Thai Party in the April 2 Election and Repeat Vote. The Court sentenced the three members of the Commission to four years in gaol, revoked their voting rights for ten years and denied them bail before sending them to remand prison. The Court of Appeal confirmed the Criminal Court’s decision on the denial of bail. The Court ruled that the commissioners had failed to protect the election rights of the plaintiff and to ensure that the elections were free and fair. The Court further held that Section 24 and 42 of the 1998 Organic Law regarding the Election Commission (EC) and Section 83 of the Penal Code had been violated. The Court held in favour of the plaintiff who stated that the Election Commissioners had unlawfully allowed candidates to switch constituencies, change application dates and use old identity numbers for the benefit of the Thai Rak Thai Party, which is the party headed by the Prime Minister, Thaksin Shinawatra.
The Court also found that the three commissioners had no legal authority to register additional candidates for the Repeat Vote and that the actions of the three commissioners was meant to assist the Thai Rak Thai Party.
The Court also said that:
“The three commissioners are senior figures who should know that their office is vital for the development of democratic rule
.the three have stubbornly pursued their way even after the people and political parties lost trust in them.”
In order to prevent further damage being caused by the three commissioners in continuing to hold office all three were refused bail.
Now new commissioners will have to be selected according to the process stipulated in the Constitution for the conduct of the election fixed for October 15.
The Asian Human Rights Commission regards this great judgement as being one of historic importance in the development of the application of legal principles on ensuring free and fair elections. Free and fair elections are the heart of the democratic process. All those who wish to subvert this process and to introduce authoritarian practices will want to interfere with the process of elections. The duty of an Election Commission in a democracy is to ensure that all interference is eliminated and to make it possible for voters to achieve their ends. Dishonesty and corruption in the electoral process is one of the worst acts that can be done against the common interests of a people. The Criminal Court of Thailand has given proper consideration to the gravity of the actions of the commissioners and has in fact set an example that should be emulated elsewhere.
The courts are the ultimate guardians of the people’s constitutional rights. The emergence of Thai courts to deal with matters of grave importance to the nation and the people is a sign of hope that democracy in Thailand will take greater root in the years to come. Whether persons are powerful, either due to their economic strength or due to other reasons, this should not allow them to interfere in the process of free and fair elections. Where commissions fail it is the duty of the courts to uphold the balance and to save the system in terms of the principles enshrined in the Constitution.
Interference with free and fair elections is not a problem that occurs only in Thailand. It has happened many times in many of the neighbouring countries. Often election commissions or similar institutions have not been held liable for the subversion of the democratic process of elections. In order to be able to develop proper legal strategies to deal with similar problems this judgement of the Criminal Court of Thailand needs to be studied by everyone in the region.
