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In Thailand: A Reality Check

December 3, 2008

On December 2, 2008, Thailand’s Constitutional Court ruled to disband three core parties in Prime Minister Somchai Wongsawat’s beleaguered ruling coalition government:  the People Power Party (PPP), Chat Thai (CT), and Matchima Thipataya (MT). The Court also revoked the voting rights of the executives of the three parties for five years, effectively banning them from politics for the duration.  Among those executives is Prime Minister Somchai Wongsawat.  Although PPP spokesmen have protested that the Court refused to hear over 200 witnesses in the defense of the three parties, the testimony of witnesses would have had little bearing on the Court’s final decisions.

The decision was made in accordance with Article 237 of the 2007 Constitution, which states that if any political party executives are convicted of electoral fraud, the party will be disbanded and executive members will be barred from politics for five years. Since the late 1970′s when “Roi Et Disease” — or vote buying — emerged as the most notorious form of electoral abuse in Thailand, reformers have consistently sought more aggressive legal and constitutional measures to control, if not eliminate, electoral fraud.  The drafters of the 2007 Constitution wanted to ensure that parties put energy into attracting non-corrupt executives and controlling their members and rather than instigating electoral fraud.

The Court considered three issues in each of the cases against the three parties. First, was an executive member of the party convicted for electoral fraud (after conclusion of the highest available appeal)? Second, should the party be disbanded because of the conviction? Third, should the party executives be banned from politics for five years because of the conviction?  In all three cases, the conviction of the party executives for electoral fraud was unquestioned (in the case of the PPP, the illegal activities were actually digitally recorded on film).  With the conviction of the party executives confirmed, the Court had no recourse but to follow the dictates of the 2007 Constitution to disband the parties and bar their executives from politics for five years.

Should the three parties or anyone else have been surprised by the Court’s verdict?  Absolutely not.  In mid-2007, the Constitutional Court disbanded the Thai Rak Thai Party (TRT) for gross electoral fraud and banned its executive from politics for five years.  The party executives’ arrogance in believing they could get away with electoral fraud ” as they have so often in the past ” led not only to their convictions, but the disbanding of their parties.  Even the ruling PPP knew what the Court’s decision would be as it established a new political party, Phua Thai.  Ministers of Parliament who are ordinary members of a disbanded party have 60 days to join a new party to retain their MP status; most PPP members are expected to join Phua Thai.

One claim by PPP supporters is that, the PPP — now disbanded by the Constitutional Court — is the government legally elected by a majority of the people of Thailand, making this act equal to a judicial coup.

Forget the opposition rhetoric that the PPP only won the 2007 election through vote buying.  Under Thailand’s parliamentary system, the PPP received the largest number of seats in the 2007 elections, but not the majority of seats, and therefore won the privilege (not necessarily the right) to first form a government in coalition with several other smaller parties that each received less than ten percent of the electoral vote.  That does not mean that the PPP received the support of the electoral majority.  More than two dozen parties contested the 2007 elections, although only two parties, the PPP and the opposition Democrat Party, received double digit support from citizens.  Each received about 37% of the votes (the Democrats receiving about 200,000 less than the PPP out of a total 32million votes cast).  This means that 63% of Thai voters did not support the PPP.  Thus, PPP claims that they represent the majority of Thai citizens cannot be labeled as simple sound bite rhetoric; it is outright smoke and mirrors deception.

Another claim is that, since 2007, the Thai courts have ruled in a number of cases against PPP politicians and those of its predecessor party Thai Rak Thai and that this is blatant evidence of judicial activism to thwart the will of the Thai electorate.  In actuality, nothing could be further from the truth.  During the administration of Thaksin Shinawatra (2001-2006) and his Thai Rak Thai Party (TRT), any cases involving TRT and its supporters were effectively shut down by Thaksin simply by claiming that those with standing to bring cases before the court were compromised.  After the departure of Thaksin, those with standing were free to pursue a judicial decision.  This is not a reflection of judicial activism but rather the judiciary functioning as it is supposed to in a democratic system.

It is true that such judicial decisions are a contentious innovation in Thai politics.  Prior to enactment of the 1997 Constitution, the executive branch essentially had the power to interpret not only the law but the constitution.  In essence, political administrations naturally decide critical issues in their own favor.  The Thaksin Administration chose to ignore the role of the judicial branch of government as mandated by the 1997 Constitution and did what it could to thwart the principles of accountability to the constitution and judicial review.  The traditional right of politicians to interpret the Thai constitution of the day to their own benefit is one of the fundamental political conflicts in modern Thailand ” contrary to Thaksin’s international media campaign suggesting that the fundamental conflict is between the interests of urban and rural voters.

The other fundamental political dispute in Thailand is the role of citizen participation.  Thaksin and the PPP are adherents of the philosophy of electoral democracy: that is, citizen participation ends at the ballot box and thereafter the elected government has carte blanch to implement policies as it deems appropriate without any accountability to the electorate.  If citizens do not like their policies, they will vote the government out at the next election. Opponents of the PPP and Thaksin strongly disagree with this philosophy, saying government must remain accountable for its decisions at all times and citizens have the right to contest policies to which they do not agree.

James Klein is The Asia Foundation’s Country Representative in Thailand. He can be reached in Bangkok at jklein@asiafound.org.

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