VZCZCXRO3099
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHBK #0011/01 0021139
ZNY CCCCC ZZH
O 021139Z JAN 08
FM AMEMBASSY BANGKOK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1276
INFO RUCNASE/ASEAN MEMBER COLLECTIVE
RHEHNSC/NSC WASHDC
RHHMUNA/HQ USPACOM HONOLULU HI
RUEAIIA/CIA WASHINGTON DC

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