Appeal Court ruling puts Election Commission under renewed legal pressure

The Appeal Court has ruled that members of the public can directly file criminal lawsuits against Election Commission of Thailand (ECT) officials over alleged malfeasance in the 2024 Senate selection, bypassing the National Anti-Corruption Commission (NACC), which normally investigate allegations before cases can proceed to court.

The case stems from a lawsuit filed by a Senate candidate Phongsakorn Tangkittrakul against seven Election commissioners and ECT Secretary-General Sawaeng Boonme at the Chon Buri Provincial Court, accusing the eight of malfeasance for allowing the 2024 Senate selection to proceed without transparency and fairness.

The case was later referred to the Appeal Court President to determine whether it was within the Criminal Court for Corruption and Misconduct’s jurisdiction.

The Appeal Court ruling, issued on 6 November, stated that the Senate selection process misappropriated the sovereign power of Thai citizens, who were collectively victimised in the process, leaving them at liberty to bypass the NACC and directly file lawsuits against officials involved with the Criminal Court for Corruption and Misconduct.

The ruling overturned an earlier 5 May decision by the previous President which rejected Criminal Court for Corruption and Misconduct jurisdiction over the case.

According to Section 235 of the Constitution, a case which involves allegations against individuals holding positions in the independent institutions, including Constitutional Court and the ECT, must first be submitted to the NACC for further investigation. The NACC will then determine whether there are sufficient grounds to refer it on to the Criminal Court for Corruption and Misconduct.

The Organic Act on Criminal Procedure of Persons Holding Political Positions further stipulates that proceedings should be initiated by the Attorney-General or the NACC commissioners.

The legal framework has been called into question in Thai political circles, as appointments to the independent institutions, including the NACC, must be approved by the Senate in turn. 

The current Appeal Court president’s decision therefore marks a significant development for Thailand’s judicial and political landscape. 

In response to the ruling, the ECT cited the 2018 Organic Act on the Acquisition of Senators, which states that only Senate Candidates can file a petition with the ECT, and that they must do so within three days of discovering that an alleged wrongdoing has occurred in the selection process. 

It further argued that members of the public are not direct victims on the grounds that Senate selection differs from the general election in which the general public is eligible to vote.

The ECT also questioned the jurisdictional authority of the Supreme Court. 

Last week, it filed a petition with the Constitutional Court challenging the Supreme Court’s authority to examine Senate candidate qualifications, a move that met with considerable skepticism in Thai legal circles. 

Both developments continue the controversy surrounding the allegedly fraudulent Senate selection process, arguably the biggest stain on the ruling Bhumjaithai Party and the ECT.