A civilian government is back in power in Thailand, but the country’s new parliament faces a host of challenges including laws enacted by the outgoing military government that shape the conduct of elections and the power structure of the new government. IFES consultants Catherine Barnes and Robert Dahl examined these challenges and future prospects for democracy in Thailand in a presentation at IFES in Washington January 23.
A six-party coalition led by the People’s Power Party—the successor to ousted Prime Minister Thaksin Shinawatra’s dissolved Thai Rak Thai Party—controls about two-thirds of the 480-seat House of Representatives. The opposition Democrat Party won 165 seats in the December 23 general elections, which were judged relatively free and fair by international observers. At the same time, the military-led government that ousted Mr. Thaksin in 2006, amid allegations of corruption and abuse of power, has suspended its activities.
While there is a real will among Thai citizens to regain their “democratic edge,” Ms. Barnes said December’s elections did little to resolve the deep political divisions within Thai society.
“For all the positive developments, I think this is still a very uncertain time for Thailand,” said Ms. Barnes, who along with Mr. Dahl, prepared analyses that were given to the Election Commission of Thailand and other stakeholders in the lead up to the polls.
“I think the conventional wisdom among the politicians, the experts and even if you’re looking at public opinion polls, is that we could be looking at new elections anywhere from a year to two years from now,” she said.
Election Changes Spark Controversy
A Thai student casts a ballot in a mock election, a popular technique that IFES used to teach voters proper voting procedures prior to the December election.
One of the first things that Mr. Thaksin’s allies in parliament are likely to address is the new constitution that was approved in a national referendum on August 19. The constitution and subsequent organic laws on elections, political parties and the election commission enacted a number of controversial changes that altered Thailand’s political landscape. Many of these changes were aimed at weakening the country’s political party system, a reaction to Thai Rak Thai’s considerable influence.
Initially, the military government proposed that the entire upper house of parliament, or Senate, be appointed. Public opposition across the political spectrum forced a compromise whereby 74 members were appointed and 76 elected.
The constitution also set up a new election system. Previously, the House of Representatives or lower house was elected in single-mandate constituencies (400 members of parliament) and through a proportional representation system (100 members of parliament) based on a nationwide constituency. The new constitution reduced the number of representatives elected under the proportional system (80 members of parliament) and introduced eight electoral zones for proportional representation. It also exchanged single member constituencies for multimember constituencies.
Read about the advantages and disadvantages of the proportional representation system.
Controls on Political Parties
At the same time, the organic laws on elections and political parties sought to regulate more political party activities and included instances of relatively severe penalties for election violations. For example, a person that provides transportation to voters to a polling site in order to influence their vote—a common practice in many Western countries—risks one to five years of imprisonment on a criminal charge, a more than $3,000 fine and a five year ban on electoral rights. Another provision calls for a party to be disbanded if its leaders fail to file an annual report on party activities on time.
Mr. Dahl said that it is important to note that Thailand has tried for years to reduce the widespread prevalence of vote buying and irregularities by granting the Election Commission of Thailand, or ECT, broad powers, but that the new legal framework could represent a “worrisome expansion” of those controls. In addition, it places more of a burden on parties and candidates.
“The penalties in many cases are quite severe and this of course raises concerns about how they will be applied and there is always the potential for arbitrary enforcement and selective efforts to harm a particular party or candidate,” he said.
Some of the election regulations challenge basic freedoms such as association and speech. Some examples include restrictions on who could organize political party events, controlling the location, size and print run of campaign materials and attempting to regulate how news and information programs covered candidates.
Students in Chonburi Province used a puppet show to educate their peers about the importance of voting.
IFES sought to increase the input that citizens and political parties had in the legal reform process by organizing a national electoral reform event with King Prajadhipok’s Institute. The event occurred shortly before the election commission made its recommendations to the parliamentary subcommittees that drafted the organic laws. IFES also prepared a number of commentaries on the legislation, as well as guidance on international standards and implementation for elections.
However, much of the process was driven by an extremely tight timeline set by the military government under pressure from the international community. The interim parliament had little time to debate and vet reforms, despite disagreements about fundamental issues, some of which had already become constitutional law. Then once the election date was set, the election commission had only 58 days to organize the December 23 polls.
Complaint Adjudication
Under the electoral laws, the ECT had exclusive jurisdiction within the first 30 days after the election to either disqualify winning candidates where “convincing evidence” indicated they had violated the electoral laws—called issuing a ‘red card’—or call for repeat elections without disqualifying candidates where results were in question—called issuing a ‘yellow card.’ However, the ECT did not finalize regulations prescribing the process for adjudicating election-related grievances until the second week of December, despite the fact that grievances had been rolling in since November.
Given the ECT’s tight timeline, it was extremely difficult to thoroughly investigate and adjudicate all charges of misconduct equally or to guarantee the accused due process, introducing the possibility of uneven or arbitrary enforcement. Mr. Dahl said this system that requires quick decision-making by the ECT on disqualifying candidates and ordering new elections can set a dangerous precedent.
“We really should make every effort to respect the will of the people and the results of the elections and those things should not be lightly overturned,” said Mr. Dahl.
When the election commission announced official results in early January, voters and political parties voiced concern that 83 winning candidates were not yet certified and that of these, 67 were PPP candidates. Mr. Dahl said it is unknown at this point why there were so many PPP candidates accused of misconduct, but that it did not appear that the ECT had been biased in choosing to review these complaints or that it had failed to investigate and adjudicate the cases thoroughly and fairly, within the ECT’s time constraints.
The ECT also seemed mindful of the need to certify as many elected members by January 22, when the new House was obligated to convene, and certified all but three candidates (who faced repeat elections on January 27) by that date. However, investigations continued in some 20 cases, with the potential for disqualifications of elected members.
The expansive powers granted to the election commission to investigate election disputes will likely be a source of controversy in the coming weeks as continuing or new cases are forwarded to the Supreme Court, which now has jurisdiction to resolve election complaints. However, Dahl gave high marks to the Supreme Court for already hearing and ultimately dismissing several controversial cases that had challenged the legitimacy of the elections and some electoral participants.
Mr. Dahl said while he respects the need to keep ongoing investigations confidential, the international community should urge Thailand’s election commission to publish information about the cases after they are resolved to increase transparency. He and Ms. Barnes expect the new parliament to conduct a full review of the constitution and election law. They also recommend an analysis of how the election commission managed its investigative and adjudicative responsibilities within the challenging context of the 2007 elections.
If appropriate lessons are drawn from those reviews, it will help Thailand take another step toward reestablishing its democratic credentials and putting its military coup in the past.