[This article appeared under the following citation: AHarding and P Leyland, ‘Constitutional Design in

Thailand: the Management of Electoral Process in anEmergent Democracy’,4:2 Journal of Parliamentary and Political Law

(2010)]

Constitutional Design in Thailand: the Managementof Electoral Process in an Emergent Democracy

By Andrew Harding and Peter Leyland1

Abstract: This article focuses on the measures andorganic laws that have been introduced in Thailand since1997 to secure fair elections and effective parliamentaryrepresentation. The discussion involves a criticalassessment of constitutional regulation of the electoralprocess and also of political parties, and in particularthe role of the Election Commission of Thailand, whichwas set up under the provisions of the 1997 Constitution.The article also seeks to assess the effect of thesemeasures in delivering a secure system of government andparliamentary democracy in Thailand during a turbulentand uncertain 12-year period, which as well as reform haswitnessed a military coup and the drafting of a newConstitution.

1 Introduction

Since the inauguration of constitutional government anddemocratic elections with the overthrow of the absolutemonarchy in 1932, Thailand’s electoral politics has beentainted by corruption. Due to this and other causes thenation has suffered grievously from political1 Andrew Harding is Professor of Asia-Pacific Law at the Universityof Victoria BC Canada; Peter Leyland is Professor of Law at LondonMetropolitan University, UK; the authors are the General Editors ofthe book series ‘Constitutional Systems of the World’, published byHart Publishing, Oxford, UK. The authors would like to thankSurutchada Chullapram, Anna Razeen, and Nuthamon Kongcharoen fortheir assistance with the research.

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instability, so much so that constitutional innovationhas been regarded as a form of crisis management ratherthan a secure basis for reform.2 In this way Thailand hasbeen a source both of interesting and imaginativeexperimentation and of object lessons in constitutionalfailure. In all, including interim constitutions,Thailand has had 18 constitutions (the latest in 2007),and has suffered 17 military coups (the latest in 2006).The 1997 Constitution of Thailand (‘CT 1997), the outcomeof Thailand’s most participative and carefully consideredconstitutional reform process to date, was seen by manycommentators as an important turning point.3 First, thiswas because it resulted from genuine public consultation,in consequence of which it appeared to have wider supportthan previous constitutions: it was indeed dubbed ‘thepeople’s constitution’. Second, it was an impressivedocument in its own right with carefully conceivedmeasures designed to tackle the endemic corruption andabuse of power that had been so prevalent anddestabilising, especially during the mid-1970s and early1990s. The Election Commission of Thailand (‘ECT’) wasone of several new or newly reformed watchdog bodies4

outlined in and mandated by the 1997 Constitution andsupported by new organic laws; it also features in arevised form in the 2007 Constitution of Thailand (‘CT2007). The ECT has combined responsibility for everyaspect of electoral organisation with oversight of theelectoral process and prosecution of electoral abuses. Itmight be observed at the outset that the potentialincompatibility between these functions means that the

2 Kuhonta, EM, ‘The Paradox of Thailand's 1997 “People'sConstitution”: Be Careful What You Wish For’ 48:3 Asian Survey 373–392(2008).Ginsburg, T, ‘Constitutional Afterlife: the Continuing Impactof Thailand’s Postpolitical Constitution’, 7(1) International Journal ofConstitutional Law 83-105 (2009).3 Harding, AJ, ‘May there be Virtue; “New Asian Constitutionalism” inThailand’, 3:1 Australian Journal of Asian Law 24 (2001); McCargo, D (ed),Reforming Thai Politics (NIAS, Copenhagen, 2002).4 Leyland, P, ‘Thailand's Constitutional Watchdogs: Dobermans,Bloodhounds or Lapdogs’, 2:1 Journal of Comparative Law 151-177(2007). See also Leyland, P, ‘The Genealogy of the AdministrativeCourts and the Consolidation of Administrative Justice in Thailand'in A. Harding and P. Nicholson (eds) New Courts in Asia (London,Routledge, 2009, forthcoming).

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ECT was conceived with a design flaw: the same body hason the one hand responsibility for every aspect ofelectoral organisation, but on the other hand, it hasalso to police the electoral process and, in doing so, itis required to exercise investigatory and judicialfunctions. In this respect it differs from many of itscounterparts in other nations. For example, theIndependent Election Commission set out under the SouthAfrican Constitution shares many organisational functionswith the ECT but is only responsible for managingelections and ensuring that they are free and fair: it isnot charged with the task of investigating electoralmalpractice.5 However, in Thailand the fact that greatreliance has been placed on a series of constitutionalwatchdogs stems, in part at least, from a lack ofconfidence in the capacity of the criminal justice systemto police the behaviour of politicians and politicalparties. In itself, this difficulty does not justify themixing of an executive managerial role with a judicialrole. Nevertheless it will become increasingly apparentduring the course of this discussion that the inclusionof these oversight bodies by the drafters of CT 1997 wasa carefully calculated response to Thailand’s ownparticular set of constitutional and political problems.6

5 Constitution of the Republic of South Africa, Chap 9, s.190(1).Under the Electoral Commission Act 51 of 1996, s.5(o), the Commissionis only responsible for adjudicating disputes of an organisational oradministrative nature. Indonesia goes so far as to have a GeneralElection Supervisory Board, separate from the General ElectionCommission, which supervises the electoral process and theperformance eof the GEC: Suparman Marzuki, ‘Roles of the GeneralElection Commission and the General Election Supervisory Board for aDemocratic Election’ (no date),http://journal.uii.ac.id/index.php/jurnal-fakultas-hukum/article/viewFile/535/448.6 See, further, Harding, AJ, ‘Thailand’s Reforms: Human Rights andthe National Commission’ 1:1 Journal of Comparative Law (2006) 88-100;Harding, AJ, ‘South East Asia 1997-2006: Two Case Studies on thePolitics of Law and Development’, ch.6 of Antons, C. and Gessmer, V.(ed), Globalisation and Resistance: Law Reform in Asia after the Financial Crisis(Oxford, Hart Publishing, 2007); Harding, AJ, ‘A TurbulentInnovation: the Constitutional Court of Thailand, 1998-2006’ inHarding, AJ and Nicholson, P (ed), New Courts in Asia (London, Routledge,2009, forthcoming); Leyland, P, ‘The Ombudsman Principle inThailand’, 1:1, Journal of Comparative Law, 137-151; Leyland, P, ‘‘Droit

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This article examines critically the attempts made since1997 to deal with the problem of electoral abuses inThailand. We proceed to explain the historical andpolitical background, the way in which the ECT isconstituted and empowered, and the difficulties whichhave arisen in implementing the reforms. Finally weassess the performance of the post-1997 system so far asconcerns the objectives of a fair7 electoral systemcontributing to the stability and legitimacy of thepolitical system, and the proper regulation of politicalparties. Although there are many features of Thaiconstitutional reforms and constitution problems whichare unique or uniquely challenged, the phenomena ofelectoral abuse and distrust of political parties as suchare not of course confined to Thailand. Accordingly theremight be general lessons for emergent democracies to bedrawn from the Thai experience.

Thailand has had, under most of its constitutions, andmore or less continuously in the post-war era, a two-chamber National Assembly; the lower house (or‘Parliament’), the House of Representatives, haspresently 480 seats. CT 20078 provides for a mixed-membermajoritarian system in which 400 members are directlyelected for four years by a simple plurality ‘first-past-the-post system’. The remaining 80 members are selectedby party preference from 8 regional lists proportionallyto the number of directly elected members from the partyin question.9 The upper house, the Senate, has 151

Administratif’ Thai Style: A Comparative Analysis of theAdministrative Courts in Thailand’, 8:2 Australian Journal of Asian Law, 121-154 (2006).7 The usual mantra is ‘free and fair elections’: here we are notconcerned specifically with whether elections are ‘free’ in the senseof state providing a level playing field for political parties.Although there are issues in this area in Thailand, some of which areincidentally noted below, essentially elections are free in the sensethat the press is largely free to advocate political positions andpolicies, and voters are not pressurised by the state to cast theirvotes in a particular way. 8 At Part 2.9 Under CT 1997 400 members were elected on a constituency basis and100 chosen from national rather than regional party-lists. CT 1997

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members; 75 senators are appointed for a three-year term;75 are elected to a six-year term by a first-past-the-post system from each of Thailand’s 75 provinces, and oneis returned for the capital, Bangkok.10

The integrity of the electoral system can be regarded asbeing at the very core of Thai democratic andconstitutional reform. In particular, the right ofcitizens to vote in free and fair elections might beregarded as the fundamental citizen right central to thedemocratic process because it is this right that allowsfull participation in the selection and formation of agovernment.11 The choice which is exercised is central towhat has been termed ‘the physics of consent’.12 Moreover,wider experience of constitutional practice demonstratesthat the protection of individual human rights commonlyflows from, and indeed depends upon, a guarantee by stateaction of the right to vote, without interference, whichin practice ‘requires a large state machinery to make[such a system] work’.13 Under CT 1997 and CT 2007 therehas been a strong commitment to democratic process inThailand, even though the meaning of ‘democratic’ hasproved to be highly contested during the tumultuouspolitical events of 2005 to date.14 Of course, in formal

introduced what was an innovation in the Thai context by providingfor single-member constituencies, but under CT 2007 has reverted tomulti-member constituencies. The change in 1997 was designed tocreate a closer link between politicians and the electorate (seebelow for further discussion of this point); the prevailing opinionappears to be that this intention has not been fulfilled.10 CT 2007, Part 3. Again, this position under CT 2007 is different from that under CT 1997, where 200 Senators were elected in multi-member constituencies which were congruent with the changwat (provinces).11 Ewing, K and Gearty, C, The Struggle for Civil Liberties (Oxford, OxfordUniversity Press, 2000), 3.12 Waldron, J, The Dignity of Legislation (Cambridge, Cambridge UniversityPress, 1999), 156. 13 Gearty, C, ‘Civil Liberties and Human Rights’ in Bamforth, N andLeyland, P (ed), Public Law in a Multi-Layered Constitution (Oxford, HartPublishing, 2003), 372. 14 The political polarisation of Thailand during this period betweenthe so-called ‘red shirts’ and ‘yellow shirts’ (supporters andopponents, respectively, of former Prime Minister Thaksin Shinawatra)has resulted in both camps claiming to be truly ‘democratic’. In both

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terms the constitution and related organic laws providethat all Thai nationals over the age of 18 have the rightto vote; indeed since the 1940s the right to vote has notbeen circumscribed in any way by gender,15 property oreducational qualifications, and is now in fact stated asa duty to vote.16

Not withstanding these developments and the entrenchmentin some form of the principle of democraticrepresentation in virtually all of the variousconstitutions since 1932, there are strands of Thaisociety which have been and remain resistant todemocracy. As Girling observes:

the Thai middle strata also fear the "turmoil" a moreopen society might lead to. And the experience of thedemocratic years, 1973 to 1976 reinforces this fear.Like the established members of the nineteenthcentury European middle classes, they believe thatthe "masses" are not ready for democracy; they aretoo ignorant, short-sighted and too easily swayed byemotions to obey its rules and make it work.17

A similar point is elaborated by Anek Laothamatas in afrequently-quoted piece proposing the idea of ‘twodemocracies’ in Thailand:18

cases, however, this claim is suspect.15 In fact Thailand was one of the first countries to treat male andfemale citizens equally in this respect. In 1897 a LocalAdministration Act introduced by Prince Damrong provided for equalityof men and women in voting: Subhatra Bhumiprabhas, ‘The FeministPrince’, The Nation, Bangkok, 27 August 2009. Women were allowed tovote in Switzerland in 1971.16 CT 2007, s.72. Under the 1932 Constitution of the Kingdom of Siammembers of the assembly were partly elected and partly appointed bythe King, but this was expressed (s.65) to be a temporary measureuntil more than half the people had at least primary education or atany rate not longer than 10 years after the Constitution came intoeffect.17 Girling, J, Thailand: State and Society (Ithaca, Cornell UniversityPress, 1981), 145. 18 Anek Laothamatas, ‘A Tale of Two Democracies: ConflictingPerecpetions of elections and Democracy in Thailand’, in Taylor RH(ed), The Politics of Elections in South East Asia (New York, Cambridge UniversityPress, 1996). See also Logerfo, J, ‘Attitudes Toward Democracy Among

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voting in farming areas is not guided by politicalprinciples, policy issues, or what is perceived to bein the national interest, all of which is [regardedas] the only legitimate rationale for citizenscasting their ballots in a democratic election. Theideal candidates for rural voters are those who visitthem often, address their immediate grievanceseffectively, and bring numerous public works to theircommunities. [These candidates are however regardedby the middle classes as] parochial in outlook,boorish in manner, and too uneducated to be competentlawmakers or cabinet members ... Ideally, patron-client ties might be replaced by a more responsiveand effective system of local government. On top ofthat, voters are [yet] to be convinced thatprinciple-or-policy-oriented voting brings themgreater benefits than what they may get from localpatrons …

In similar vein Logerfo in a study of rural northern Thaipolitical attitudes, refers to ‘a larger attitudinal complex that enables locally influential figures, often involved in illegal business activities, to win electionsand engage in corruption of all kinds so long as they continue to deliver the goods to their constituencies’.19 He goes on to show that in the rural north there is

more support for a more restricted, military-basedmodel of democracy consisting of a political rolefor the armed forces,20 limited participation forsocietal groups, a strong Senate, weak localgovernment, and restrictions on press freedom… [and]because of their overwhelming numbers, rural Thais

Rural Northern Thais’, 36 Asian Survey 904-23 (1996); Chai-ananSamudavanija and Parichart Chotiya, ‘Beyond Transition in Thailand’in Diamond, L and Plattner, M, (ed), Democracy in East Asia (Baltimore,Johns Hopkins University Press, 1998)19 See Logerfo above n18, and Nelson, M, Central Authority and LocalDemocratization in Thailand (White Lotus Press, Bangkok,1998),168. 20 Of course this has changed in recent years as Thaksin emerged asthe perceived champion of their interests and was then ousted by themilitary.

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determine which party will control the government,but because of their economic weight and politicalimportance, the urban middle classes havesignificant influence over the government’sviability.

The two democracies can still be clearly discerned, buthave taken on even more (and disturbing) significanceduring the current period of extreme politicalpolarisation of Thailand following the military coup ofSeptember 2006. The coup ousted from government theallegedly corrupt Thai Rak Thai (TRT) Party of ThaksinShinawatra (Prime Minister 2001-6), which had been metwith huge and hostile demonstrations in Bangkok during2005-6. A military-installed technocrat governmentsupervised the drafting of a new constitution (CT 2007,approved by referendum in August 2007). A return toelected government in January 2008 saw the election ofthe People Power Party (‘PPP’) under Prime Minister SamakSundaravej, which was close to Thaksin and this againprompted huge demonstrations by the People’s Alliance forDemocracy (‘PAD’ or ‘yellow shirts’) which effectivelybrought government and the economy to a standstill duringmost of 2008. Samak was forced to resign following anadverse Constitutional Court ruling in September 2008,21

but his successor Somchai Wongsawat fared no better,being forced from office in December 2008 when his partywas dissolved, again as a result of a ruling of theConstitutional Court.22 Defections of members ofparliament then enabled the Democrat Party under PrimeMinister Abhisit Vejjajiva to take power without anelection (December 2008); but the supporters (the ‘redshirts’) of the pro-Thaksin parties which are the time ofwriting (September 2009) in opposition have also mountedhuge demonstrations against the government, demanding new

21 See http://news.sky.com/skynews/Home/World-News/Thailand-Constitutional-Court-Tells-PM-Samak-Sundaravej-To-Step-Down-In-TV-Cooking-Show-Row/Article/200809215095879.22 See http://www.welt.de/english-news/article2816105/Court-rules-Somchai-Wongsawats-party-disbanded.html. The decision disbanded Somchai’s People Power Party. Somchai is Thaksin’s brother-in-law andhis tenure of the premiership provoked large protests by the yellow shirts.

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elections. The red shirts rest their case on a clearelectoral majority in the general elections of January2008; the yellow shirts, identified with the so-called‘People’s Alliance for Democracy’, consistently withGirling’s observation above, have stated a policyobjective of removing the vote from the 70% rural voterswho in their view are unready for democracy and whosevotes, they allege, are simply bought.23

2 Vote-buying and funding of political parties

As a matter of law in Thailand at the present time,voting remains compulsory for all citizens, and measuresmay be taken against a person who fails to vote withoutgood reason.24 The purpose of this measure, introduced in1997,25 was to make vote-buying more difficult byincreasing the numbers of votes that would need to bebought to make a difference to the result. The enduringproblem however has been how to ensure fair elections.‘Corruption riddles governance, business and elections,and corruption scandals define the entire politicalprocess’.26 A fully independent electoral body wasconceived as an essential weapon against abuse under CT1997 and the verdict on the ECT’s initial performance waspositive. Connors commented as follows:

In the Senate Elections of 2000 and the House ofRepresentative Elections of 2001 it is apparent thatthe new Election Commission of Thailand has providedunprecedented succour to the cause of reform. Inpunishing scores of recalcitrant and corrupt

23 See discussion above.24 Organic Act on the Election of Members of the House ofRepresentatives and Senators 2009, s.25. This recent Act replaced theOrganic Act on the Election of Members of the House ofRepresentatives and Senators 1998.25 CT 1997, s.68; and the Act of 1998, above n24.26 Thornton, L, ‘Combating Corruption at the Grassroots: The ThailandExperience 1999-2000’ (National Democratic Institute forInternational Affairs, 2000), 7.

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politicians by ordering new elections the EC isstriking a blow against old style electioneering.27

This however was a provisional and optimistic assessmentof its achievement.28

‘At best, Thai electoral politics can qualify asdemocracy in form only. From the point of view of almostall Thai politicians involvement in politics is the bestway to access wealth’.29 Entry into politics has mainlyprovided already wealthy individuals the opportunity togain election and thereby to obtain further enrichment.In order to secure votes election candidates in manyparts of Thailand would expect to gain the vote of localconstituents by offering individual electors a cashpayment. The lack of truly representative parties in asociety with a traditionally Buddhist social hierarchyposes deeper questions about the degree of genuinepolitical participation. Moreover, the phenomenon ofvote-buying is not universally regarded as wrongfulconduct but as a reciprocal return of favours - yourmoney accepted in return for my vote.30

Despite there being a secret ballot and explicit attemptsto stamp out vote-buying, the practice has been pervasiveand taken for granted. One influential commentatorobserved that:27 Connors, M, ‘Framing the People’s Constitution’, in McCargo, aboven3., at 55. As an index of the ECT’s ‘zero tolerance’ approach, inthe province of Samut Prakan in the Senate elections of 2000 fiveelections had to be held before a winner was declared. Unfortunatelyin many cases the candidates found by the ECT to have cheated wereactually finally elected, indicating that ECT intervention was notnecessarily in practice a political setback for the candidatesconcerned. See, further, Thawilwadee Bureekul, Citizen Participation inPolitics: the Senate Elections 2000 Case (KPI, Nonthaburi, 2002).28 Cf. Nogsuan, S, ‘Party Elites in the Business of Congromerate Modelof Thai Political Parties’, in Niyom Rathamarit (ed) Eyes on Democracy:National and Local Issues (KPI, Nonthaburi, 2006), 103; McCargo, D, andUkrist Pathmanand, The Thaksinisation of Thailand (NIAS, Copenhagen, 2005),99 ff.29 Phatharathananunth, S., ‘Civil Society and Democratization inThailand: A Critique of Elite Democracy’, in McCargo, above n3, at127. 30 See notes 26, 28 and 29 above and 31 below.

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Vote-buying, a longstanding Thai practice, wasactually exacerbated by new legislation passed at theend of the 1970s, intended to clean up elections andrestructure political parties. By the 1995 and 1996elections it had reached epidemic proportions: tostand a serious chance of winning a typical up-country seat, a basic investment equivalent to nearly1 million US dollars was required.31

The ECT’s attempts to eliminate the practice of vote-buying are discussed below.

Political parties themselves present furtherdifficulties. The wider project to entrench democracy isnot simply about granting citizens the right to vote.Unlike for example Malaysia and Singapore, Thailand haslacked an established political tradition in whichpolitical parties organise from the grass roots up to thenational level on the basis of a consistent set ofpolicies. Political parties tend to be many, and ratherthan representing clear ideological positions, they aremore usually personal followings, or purely regionalinterests and electoral base. These parties also tend tobe themselves coalitions of factions any of which mightat any time switch party for some advantage. Changes ingovernment due to no-confidence motions and militaryinterventions have made even controlling the office ofPrime Minister much less attractive as an object of partyorganisation than in most countries (most Prime Ministershave stayed in office only for one or two years and havehad little impact on actual policy).32 It was thereforeone of the challenges of the 1997 drafting process tofind means of ensuring that party politics would becomeless fissiparous and more centripetal, and that

31 McCargo, D, ‘Introduction: Understanding Political Reform inThailand’, in McCargo, above n3, at 7.32 At the time of writing (September 2009) there have been five Prime Ministers in the last three years and 27 altogether since 1932 (several held office more than once). See, further, Suchit Bunbongkarn, ‘Political Institutions and Processes’, in Somsakdi Xuto(ed), Government and Politics of Thailand (Singapore, Oxford University Press, 1987), 61.

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governments would be more likely to consist of one party,or at least a reasonably firm coalition of parties.33

Hence restrictions on no-confidence motions wereintroduced, although these have been slightly watereddown in CT 2007.34 There remains a conviction thatconstitutional or legal engineering is required and willbe effective to ensure that politicians will be ‘good andcapable’,35 and that national political parties will bothbecome more viable and will be less corrupt and act morein the national interest. At this point of democraticdevelopment, while there seems to be agreement that insome sense political parties are quintessentially ‘theproblem’, there seems to be little evidence to supportthe conviction that they can actually be ‘improved’ bylegal engineering. This seems to be quintessentially theproblem of Thai democracy at the beginning of the 21st

century.

Tackling the issue of parties from a differentperspective, an element of state funding was firstestablished under CT 1997 to provide the seed-corn forthe development of grass roots politics and to assist inthe setting up of new political parties.36 The ECT wasgranted responsibility for administering the fundingscheme relating to expenses in subsidising political

33 Ironically, the object of attaining one-party government for a fullparliamentary term was achieved in 2001, but at the expense ofentrenching a government (Thaksin’s TRT) which would doubtless havehorrified the constitution-makers of 1997 in every other respect, notleast the fact that TRT was set up only weeks before the election.One longer term consequence of TRT’s election and five years inoffice could be a greater concentration on policy in electioncampaigns. Thaksin was able successfully to ‘market’ policies such asthe 30 baht health care scheme.34 For example, under Article 158 at least one fifth of the members of the House of Representatives are needed to submit a motion for thepurpose of passing a vote of no confidence in the Prime Minister but members are restricted to presenting one motion per session. The alternative Prime Minister must be named in the motion and an allegation of corruption therein muyst be accompanied by an impeachment motion. Cf CT 1997, s.185, where two-fifths of MPs were required to submit a motion of no confidence.35 Nelson, M, ‘A Proportional Election System for Thailand?’ (KPIPolitics Update No 2, KPI, Bangkok, 2007), 12.36 Organic Act on Political Parties 2007, ss.55-72..

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parties and other activities with respect to thedevelopment of political parties. A special committeedetermines the allocation of this fund chaired by thePolitical Party Registrar who acts as chair. Thecommittee secretary is the ECT’s Secretary-General. Thecommittee must consist of an Election Commissionerselected by the ECT, a representative each of theMinistry of Finance and the Bureau of the Budget; threerepresentatives from political parties who arerepresented in the House of Representatives, plus onerepresentative from political parties without members inthe House of Representatives. In practice the rulesallowing for state funding have been cynically exploitedby political parties. Political parties responded torecognition that their eligibility for this funding wouldbe increased by swelling their numbers. TRT, for example,claimed to have a membership of 15 million in 2003, but2.3 million of TRT’s members were also found to bemembers of other political parties. Instead of 15 millionmembers the real figure was more like 8.5 million.37 Therequirement that parliamentary candidates must beeducated at least to bachelor’s degree level38 was anotherstrategy employed to improve the calibre of individualsentering politics. This was of course controversial inview of its discriminatory effects and the fact that onlya small percentage of the population could satisfy thiscriterion,39 but is a reflection on elite opiniondiscussed above as to the type of politician it wasthought needed to be discouraged, as well as probably apolitical attitude on the part of many voters that amember of parliament is analogous to one’s legal or otherprofessional representative, who, in one’s own interest,should be well qualified for the task.40

37 McCargo and Phathmanand, above n28, at 86. 38 CT 1997, s.107; CT 2007, s.174.39 Harding, above n2. In Thailand literacy rates and current tertiaryeducation participation rates are high and increasing rapidly. In2007 there were more than 2m students in HE out of a total populationof 64m. Seehttp://www.eastwestcenter.org/fileadmin/resources/education/ed2020_docs/Thailand.ppt#337,24,Quality System of HE National Education Act(1999).40 See however, the views of a former Speaker of the House of Representatives, Uthal Pimjaichon, in ‘Democratic Path to People-

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Although created as a coalition of business interestsitself and also having a reputation for corruptionThaksin’s TRT Party bucked the trend by operating on anationwide basis, making astute use of the media, byappealing to nationalist sentiments, and by having a‘National Agenda’ comprising an 11-point popularmanifesto of policies.41 In other words this party,conceived as a vehicle for its leader’s own advancement,at the same time assumed the guise of a ‘modern’ nationalpolitical party. To win elections politicians havecontinued to spend money on vote-buying. In this sensethe mechanisms intended to create a more honest politicalclass oriented to the national interest seems to havefailed.

3 The Regulation of Political Parties

As with many other emergent democracies, in Thailand theprinciple of freedom of association applies, while thereis also an attempt to control the behaviour of politicalparties in line with the provisions of the constitutionand electoral law. Under CT 2007, reflecting a similarprovision in CT 199742

A person shall enjoy the liberty to unite and form apolitical party for the purpose of making thepolitical will of the people and carrying outpolitical activities in fulfilment of such willthrough the democratic regime of government with theKing as Head of the State …. The internalorganisation, management and regulations of apolitical party shall be consistent with fundamentalprinciples of the democratic regime …

Based Society: Experience, Perspectives and Criticism’, in Rathmarit,above n28, at 305.41 Phongpaichit, P, and Baker, C, Thaksin: The Business of Politics in Thailand,(Chiang Mai, Silkworm Books, 2004), 81. 42 Ss.65 and 47 respectively.

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In addition CT 1997 and CT 200743 have prohibiteddiscrimination (inter alia) on grounds of ‘constitutionallypolitical view’. As these provisions imply, freedom ofpolitical association is not absolute, and politicalparties are regulated by the Organic Law on PoliticalParties, the latest version of which was enacted in 2007.The principle of consistency with fundamental principlesmay be enforced in a number of ways. A prescribed numberof members of a political party may refer a partyresolution or regulation to the Constitutional Court,which can nullify it. Another provision44 imposes morespecific and drastic penalties, prohibiting any exerciseof constitutional rights to overthrow the democraticregime or to acquire the power to rule the country by anymeans which is not in accordance with the modes providedin the constitution. Where such acts are performed by apolitical party any person may request the Prosecutor-General to bring a motion before the Constitutional Courtordering cessation of the acts, which may also (as withother violations of the law) result in the party beingdissolved. A new provision added under CT 2007 adds thefurther penalty of depriving the president and executiveboard of the dissolved party of the right to vote forfive years, which also entails that they cannot stand forelection during that time.45

The powers of the Constitutional Court, in particular thepower to dissolve political parties, has proved verycontroversial and has been exercised drastically and withprofound effects on Thai politics in recentyears.Critically, a decision of the Election Commissionof Thailand (ECT) to allow the general election held on 2April 2006 was challenged successfully in theConstitutional Court, which held the election invalid inMay 2006.46 During the election itself, there were manyallegations of widespread vote-buying.47 The ECT failed43 S.30 in both cases.44 CT 2007, s.63.45 See CT 2007, ss.100(2) and 102.(3).46 ‘Constitution Court Invalidates the April Election and Orders New Election’ The Nation, Bangkok, 9 May 2006; ‘Thai Court Rules Election Invalid’ BBC News, 8 May 8, 2006.47 These led to the Constitutional Tribunal’s decisions of 30 May 2007

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to uphold objections to the results and theConstitutional Court initially confirmed individualresults which had been called into question.48 AlthoughTRT won the election, following street demonstrationsThaksin announced that he would only serve as a caretakerPrime Minister until a new government was formed; butafter taking a short vacation he showed no signs ofgoing. In an unprecedented move the King intervened on 26April 2006 by addressing the judges of the Constitutionaland Administrative Courts directly. He suggested intypically oblique royal language that they should asserttheir authority under the constitution to invalidate theelection, which had been boycotted by oppositionparties.49 Further investigation of the conduct of thepolitical parties (TRT and the Democrat Parties) in theelection was expedited by the military government afterthe September 2006 coup, resulting in the dissolution ofTRT, but not the Democrat Party, as a result of adecision by the Constitutional Tribunal under the 2006Interim Constitution.50

dissolving the Thai Rak Thai Party: see below.48 See ‘End of the Beginning in Thailand’s Crisis’, Bangkok Post,Bangkok, 19 May 2006.49 See ‘April 2 Election: Charter Court to Examine the Legality ofPoll’, The Nation, Bangkok, 1 May 2006.50 See The Constitutional Court, ‘Summary of the Decision of theConstitutional Tribunal Case Group 1’,http://www.concourt.or.th/download/news/Party1.pdf; TheConstitutional Court, ‘Summary of the Decision of the ConstitutionalTribunal Case Group 2’, The Constitutional Tribunal replaced theConstitutional Court, which was abolished by the 2006 InterimConstitution; however, existing cases were transferred to theConstitutional Tribunal. TRT was unanimously found guilty on allcharges, together with three minor parties which were also dissolved.In particular, the verdict was based on the fact that a few high-ranking party members were directly involved in bribing several smallparties into competing in constituencies that were bases of theformer opposition parties, in order to ensure that the minimum 20%turnout requirement was met; the Tribunal dissolved TRT and banned111 members of its executive committee, including Thaksin himself,from politics for a period of five years. It was also ruled thatthere was inadequate evidence supporting the charge that theDemocrats bribed small parties into exposing some high-profile TRTparty members’ involvement in election fraud in a series of by-elections in April 2006; and that the Democrat Party did not defameThaksin or urge voters to cast a ‘no’ vote in the election.

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Another method of controlling political parties was the‘ninety-day rule’ which, having been included in CT1997,51 survived the 2007 drafting process in modifiedform. Under this rule a candidate for election to theHouse of Representatives must be a member of any and onlyone political party, for a consecutive period of not lessthan ninety days, up to the date of applying forcandidacy in an election; but under the 2007 Constitutionthe period drops to thirty days should the lower house bedissolved.52 The point of this provision is to preventopportunistic party-hopping prior to an election.Although this can be seen as controlling the behaviour ofindividual politicians, it also tends to encourage atendency for parties to hold together (we have notedabove the fissiparous nature of Thai political parties).

Constitutional provisions also require candidates to havea solid connection with the changwat in which they standfor election (i.e, being born in it, having lived in itfor five years immediately before the candidacy, orhaving held public office in it or studied in it for fiveyears). The connection of the candidate with theconstituency is indeed a matter fraught with difficulty.The paucity of funding for parties means that partiestend to go in search of wealthy candidates with localinfluence rather than vice versa; or that wealthyindividuals set up their own parties. It is thus localnetworks of influence that ultimately matter rather thanthe courting of individual voters. Indeed it is oftenreported that members display little interest in theirconstituencies after being elected,53 preferring

Accordingly this party avoided dissolution.51 S.107(4). For a discussion of the unintended impact of this rule see Kuhonta, above n3, at 381, 383. 52 CT 2007 s.101(3). See Kuhonta, above n3, at 390 and World ofParliaments Quarterly Review, Web Version, Issue No 27, October 2007.Reducing the period to 30 days in the event of a dissolution wouldappear to defeat the purpose of the original rule, namely, to preventthe formation of new parties at short notice from existing MPstempted by short term inducements. The decision to slash the periodto 30 days appears to have been a compromise reached as part of theconstitutional drafting process. 53 Logerfo, above n28.

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advancement through Thailand’s complex factionalparliamentary politics.

One possible remedy to several of the problems hereoutlined is of course to have party-list elections inaddition to or instead of constituency elections.54 CT1997 provided for party lists for the first time, butthey were designed to fill only 100 of the 500parliamentary seats. The main purpose of this was notsimply to consolidate national parties but to ensure thatthe best people could be appointed to the Cabinet withoutthe need for a by-election in each case; this wouldotherwise be needed given the required separation of theexecutive from the legislature after a general election,under which members of the government had to resign theirparliamentary seats. This proved one of the problematicalissues in the 2007 drafting process. One group wanted a400-seat house equally divided between constituency andparty-list seats. Another wanted a house comprisingentirely of constituency-elected members. The result wasa compromise: 320 constituency and 80 party-list seats,with the nuance that the latter is to consist of eightlists of 10 based on eight regions of Thailand, thusmaintaining some local connection even for the party-listmembers.

During 2008, as discussed in outline above, theConstitutional Court’s powers became even morecontroversial than previously. In 2001 followingThaksin’s survival of corruption charges by an 8-7 votein the Constitutional Court he expressed the view that afew unelected judges should not be able to dismisssomeone elected by 12 million people. In 2008 the Courtfirst ruled against Prime Minister Samak Sundaravej in amatter of conflict of interest which appeared to manyquite trivial: he had taken money for appearing in aregular TV cookery programme. This ruling precipitatedthe PM’s resignation. More drastically, in December 2008the Court dissolved the People Power Party (PPP), the‘successor’ party to TRT and closely associated withThaksin and the ‘red shirt’ cause. As in 2007 a major54 See, further, Nelson above n35.

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party was dissolved and its leadership ‘red-carded’, sothat they could not stand for election within five years.The basis of this decision was electoral irregularitiesin the previous election of January 2008. The ‘yellowshirts’ (PAD) had taken their case to the streets andoccupied public buildings including Bangkok’sSuvarnabhumi international airport and the PrimeMinister’s own office during 2008; now it was the turn ofthe ‘red shirts’ to take their cause to the streets. Suchdecisions by the Constitutional Court are in fact easilycircumvented: in the case of PPP it was well known thatthey had another party already set up in anticipation ofthe Court’s decision. The ‘nuclear’ option of dissolutionis in fact counter-productive; it manages to be bothdrastic and ineffective at the same time. It raises thepolitical stakes, but does not really in practice dissolveparties; it fails the test of legitimacy, and spawnsextra-constitutional political methods.55 Nonetheless itdid in this case result in a change in government whensufficient Thaksin-supporting MPs changed sides as toenable the Democrats to take power under Prime MinisterAbhisit Vejjajiva in December 2008.

A new Organic Law on Political Parties in 2007 madefurther provision for regulating parties, replacing anequivalent Act of 1998. Provision is made for applying toform a political party and the system is overseen by theRegistrar of Political Parties. The overarchingprinciples are that there is freedom of association butparties must have regulations which are consistent withthe fundamental principles of a democratic regime ofgovernment with the King as Head of the State, with theperformance of duties of members of the House ofRepresentatives, and that disciplinary regulations mustconform with the right of an accused person to be heard.The ECT is now empowered to veto registration of apolitical party. The law also regulates the similarity ofparty names. The party’s executive committee is under a

55 Nonetheless, following referral to the Constitution Court by the ECT for irregularities a total of 88 parties in existence in 1997 hadbeen dissolved by 2003. Clearly the dissolution option does serve some purposes.

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duty to operate the party according to the Constitutionand the law, ‘circumspectly, carefully, and honestly, forthe benefit of the country and the people, and mustpromote democracy in the political party’ (s.17).Interestingly enough, under a new provision of the law(s.17(4)), which makes concession to those aggrieved bythe punishment of all members of the TRT ExecutiveCommittee in the 2007 Constitutional Tribunal, members ofthe executive committee shall not be responsible forparty actions if they can prove that they were notinvolved in the action and objected to it at the meetingof the executive committee or within seven days after themeeting. However the committee also has a duty to ensurethat party members and candidates do not break the law.It is forbidden to bribe anyone (or to be bribed) tobecome a member of a party (s.22). In an attempt toencourage genuinely national parties, it is required thata party have members and branches in all provinces(s.27). The law contains many provisions regulating theinternal procedures of parties such as meetings,branches, choosing a leader and candidates, financialaccountability, donations, state funding, and so on. Themost important provisions for present purposes relate tothe procedure for dissolution of a political party. Thisis done by the Registrar with the approval of the ECT,and the Registrar is required to send the case with theevidence to the Prosecutor-General who takes the matterto the Constitutional Court. The applicable grounds unders.93 are, in summary form, that the party does an act toterminate or contradict the democratic regime with theKing as head of state; or contrary to the law or aregulation or decision of the ECT; or harmful to nationalsecurity.

4 The Composition and Selection of the Thai ElectionCommission

The ECT was first established in 1992. Its constitutionalrole was defined under both CT 1997 and CT 2007. Under CT2007 the ECT as presently constituted is described as oneof the ‘independent organs under the constitution’. It

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comprises a President and four associate commissionersappointed for a non-renewable term of seven years.56 TheSecretary to the Commission is the administrative head.The present Commissioners were all appointed under the2006 Interim Constitution in September 2006. Theresponsibilities are divided into central administration,election administration, political party regulation, andparticipation.

(a) Selection Process

In terms of the creation of institutional architecturethe introduction of the ECT has been recognised as astride towards democratic credibility: ‘In order to builda system that allows clean elections to take place, anindependent election commission was formed: gone were thedays when the administration and supervision of local andgeneral elections were undertaken by the powerfulminister of the interior’.57 The status of this bodyremains crucial and, given the extreme politicalsensitivity of its role, the appointment process for theECT was and still is of great importance. In order toappoint the ECT under CT 1997 a more broadlyrepresentative selection committee of ten members neededto be set up.58 The committee had to include: thePresident of the Constitutional Court as Chairman and thePresident of the Supreme Administrative Court, fourRectors of state higher education institutions; and fourrepresentatives of political parties from the House ofRepresentatives. Five qualified and suitable namesapproved by at least three quarters of the members ofthis committee were submitted to the President of theSenate. Also, at this preliminary stage the Supreme Courtwas required to put another five names of suitably

56 CT 2007, s.229. 57 Sombat Chantornvong, ‘The 1997 Constitution and the Politics ofElectoral Reform’, in McCargo, above n3, at 204.58 CT 1997, s.138.

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qualified candidates forward to the President of theSenate. For the next stage, as presiding officer he orshe was required to hold a secret ballot in the Senate tochoose five Election Commissioners from among these tennominated candidates.59 Their election would then beformally confirmed by the King.60

The elaborate selection process under CT 1997 failed toprevent controversy over actual appointments. Inparticular, under Thaksin’s premiership 2001-6 there wasevidence that the process was manipulated to producecandidates favouring the government, thereby neutralisingthe effectiveness of this key watchdog body.61 The Senateturned out to be the weak link. Although it had beendesigned as a non-partisan body, it was, in effect,captured in the sense that the political allegiance ofsenators was courted by government and opposition. Theresult was that when ECT vacancies arose in 2001 pressurewas covertly exerted on senators to ensure theconfirmation of nominees acceptable to the government,even if they were clearly unsuitable. In May 2001 theSenate opted for a former general whose own Senateelection had been declared invalid as result of his ownactions. He briefly became Chairman but was later removedby the Constitutional Court on the grounds that hisselection had been technically incorrect. In addition, ajudge was nominated but withdrew because the King wasunwilling to confirm his appointment. Two other nomineesincluded a civil servant who was under investigation forcorruption, and another civil servant who faced

59 Ibid, s.138(4) ‘... the first five persons who receive the highest votes which are more than half of the total number of existing senators shall be elected ...’60 .CT 1997, s.138.61 Jansen, J, ‘Thailand Court Rejects Election Commission Nominees inLatest Ouster Bid’, Jurist Legal News and Research, Bangkok, 31 May 2006. Inits quest to get the commissioners to resign the entire Supreme Courtjudiciary voted 72-4 in a sitting of the entire court to reject twonominees.

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accusations of having printed fake ballot papers.62 Thestewardship of this body was frequently contested.

By way of contrast, the system for making appointments tothe ECT under CT 2007 places greater reliance on thejudicial branch, but the selection committee is lessinclusive as it is confined to senior judges, judgescollectively and holders of political office.63 As themost trusted of Thailand’s institutions the judiciary andthe most senior judges in particular have a finger inmany constitutional pies, which now exposes them topolitical influence.64 In order to appoint three of thecommissioners there is a selection committee of onlyseven members, including the President of the SupremeCourt, the President of the Constitutional Court and thePresident of the Supreme Administrative Court. There aretwo further judicial members, one selected at a generalmeeting of the Supreme Court of Justice, the otherselected at the General Assembly of Judges of the SupremeAdministrative Court.65 In place of rectors of stateuniversities the other members of the selection committeeare the President of the House of Representatives and theLeader of the Opposition in the House of Representatives.It is the task of the committee to forward nominations tothe President of the Senate by a 66% majority for threesuitably qualified candidates (rather than 75% under CT1997). The Supreme Court of Justice at its generalmeeting is responsible for nominating two furthersuitably qualified candidates to the President of theSenate, who arranges a secret ballot of senators toapprove these nominations. If all or any of the62 Pasuk Phongpaichit and Baker, C, Thaksin: The Business of Politics in Thailand(Chiang Mai, Silkworm Books, 2004), 175; Vitit Muntarbhorn, ‘HumanRights in the era of "Thailand Inc"’, in Peerenboom, R, Petersen, Cand Chen, A (eds) Human Rights in Asia: A Comparative Legal Study of Twelve AsianJurisdictions (London, Routledge, 2006), 327. 63 Vitit Muntarbhorn, ‘Deconstructing Thailand’s (New) EighteenthConstitution’, 12:1 Thailand Law Journal 2009:http://www.thailawforum.com/articles/Thailand-Eighteeth-Consititution.html.64 Harding, AJ and Leyland, P, ‘The Constitutional Courts of Thailandand Indonesia: Two Case Studies from South East Asia’, 3:2 Journal ofComparative Law (2008). 118, at 142.65 CT 2007, s.231.

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nominations is rejected, the Senate is not allowed toinsert its own candidates, but the matter is referredback to the respective selecting body. If the lattervotes unanimously, or the General Meeting of the SupremeCourt votes by a two thirds majority (as the case maybe), to affirm its original selection the candidates willbe sent for formal royal approval. If agreement is notpossible the selection process will begin again. Thechange from CT 1997 is that the senators are not able toexpress their own preferences but merely confirm thechoices of the selecting bodies.66

Election Commissioners were intended to enjoy a highlevel of security of tenure. Once appointed a petitionfor removal can be filed to the President of the NationalAssembly for referral to the Constitutional Court fordetermination provided it is signed by at least 10% ofthe existing members of the two houses. The grounds forsuch a petition are restricted to allegations that thecandidate fails to meet the appointment criteria or thatthere is a fundamental conflict of interest because thecommissioner is already an official in some othercapacity, engages in a profession or holds a commercialposition.67 Under the Organic Law of 2007 thecommissioners are required to declare their assets,including those of their spouse and children, and assetsheld in the name of others (s.7).

The Constitutional Court held that the results of theelections in April 2006 were invalid partly on thegrounds that the scheduling by the ECT wasunconstitutional. This was because the length of theelectoral campaign was too short, leaving insufficienttime for candidates to prepare.68 The insulation of theposition was well illustrated when three commissioners,all appointed during Thaksin's premiership under CT 1997,66 This bring to mind the example of the US Constitution, Article II,Section 2: ‘He shall nominate, and by and with the Advice and Consentof the Senate shall appoint ...’67 CT 2007, ss.233, 207. 68 Henry, T, ‘Thailand Courts to Supervise New Elections afterConstitutional Court Voids Results’, Jurist Legal News and Research,Bangkok, 9 May 2006.

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were successfully prosecuted and sentenced to four years’imprisonment for dereliction of duty. However, theyrefused to resign and continued to serve for severalweeks.69 On the day following the military coup ofSeptember 19 2006 five new Election Commissioners wereconfirmed in office. The judicial profile of the reformedcommission is highly significant. Four of the appointeeswere former judges of high to middle-ranking seniorityand the fifth commissioner is a former official from theAttorney-General’s office.

(b) Powers and Duties of the ECT

The ECT is responsible for running the electoral processin Thailand at both national and local levels and forsetting out the rules necessary for the running ofelections and now also referenda, including the conductof the election campaign, and party funding andexpenses.70 It also determines cessation of membership ofthe National Assembly and determines issues of voters’rights. Under CT 2007 it also has functions relating tothe appointment process for half the members of theSenate. The task of organising elections had previouslybeen in the hands of the Ministry of Interior. Inperforming its many functions the ECT is grantedadministrative, investigative and quasi-judicial powers.At one level this is a body charged with undertaking anorganisational task of considerable magnitude. It has todraw up constituency boundaries,71 enact rules governingthe election campaign, prepare the electoral register,72

get ballot papers printed, set up polling stations andvoting and counting procedures, appoint electionofficials, and oversee the entire electoral processincluding resolving disputes that arise during theprocess, making provision for facilitating the process of69 Jansen, J, ‘Thailand Election Commissioners get Jail Time for Abuseof Power in April Poll’, Jurist Legal News and Research, 25 July 2006. 70 CT 2007, s.236: ‘To notify and set out rules governing the holdingof elections and referendums’. See also Organic Act on the ElectionCommission 2009, s.10.71 Ibid, s.18.72 Ibid, s.17.

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voting (for example access for disabled voters),determining the qualification of individual candidates,and even determining inquiries concerning the election.At an altogether different level the ECT under the twomost recent constitutions has been fashioned to tackleelectoral malpractice, and, to this end, it is equippedwith real teeth.73 The prospect of heavy punishment forcontravention of electoral laws was intended to deterpotential perpetrators. Where it finds serious wrongdoingthe ECT is empowered to issue a ‘red card’ banning acandidate from engaging in politics for five years (whicheffectively rules the person out for two parliamentaryterms).74 An equally formidable power is the ECT’scapacity to order an election for any member of the Houseof Representatives or Senate to be re-run where there isproof of malpractice.75 However, any such decisionrequires a motion to be put before the Supreme Court,which must decide whether to ratify the motion for it tocome into effect.76 Furthermore, if it observes improperpractices the ECT is able to order a person to refrainfrom any conduct tending to undermine the integrity of anelection. The ECT is granted far-reaching investigatorypowers.77 It is required to initiate an investigation andinquiry for finding facts in a case where there was anobjection lodged or ‘convincing evidence’ of animpropriety or any violation of election laws.78 Whatconstitutes convincing evidence is an obvious hurdle to73 Leyland, above n4.74 CT 2007, s.237. Under several provisions of the Organic Actmaximum penalties are imprisonment for a term of 10 years or a fineof 200,000 baht, and a court call order disfranchisement for 10years.75 Elections have occasionally been run as many as five times. Underthe Organic Law 2009, s.113 rerun elections are now held at theexpense of the candidate whose actions caused the election to bererun.76 CT 2007, s.239.77 CT 2007, s.236; Organic Act on the Election of Members of the Houseof Representatives and Senators 2009,, ss. 49-50. The ECT conductsinvestigations where disputes arise over anything to do with theelectoral process. An investigation can be triggered by an objectionfrom a voter, candidate, senator, member of the national assembly, orlocal assembly.78 It has power to form a committee to look into any such allegationscomprising public prosecutors, state officials, or former judges.

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overcome when there are accusations of vote-buying,because cash changes hands in private and witnesses willbe reluctant to come forward.79 In conducting its affairsand investigations the ECT has the power to summondocuments and/or persons before it.80 Since investigationof financial fraud can involve untold technicalcomplexity, the ECT can recruit the assistance of otheragencies (ss.11,53) such as the National AuditCommission, the Anti-Money Laundering Office, and theNational Counter-Corruption Commission in itsinvestigation of electoral malpractice. It is alsoassisted by an electoral commission for each changwat.Although the ECT has been granted these formidable powersit has not been easy to exercise them; this is mainlybecause of certain procedures which were intended assafeguards. For example, the commissioners’ decision hadto be unanimous before a red card or other penalty couldbe imposed. Assuming that such a decision was made,before it took effect, the ECT were required to notify aspecial committee made up of the chairpersons of eachcommittee of the Council of State81 to confirm thelegality of the suspension. In the case of evidence ofabuse which was discovered after the result of anelection had been announced, the ECT was empowered tonullify the outcome of the election in that constituency(or throughout the region or nation) within 30 days ofthe election (s.8) and order a rerun.82 Under CT 2007 theECT can suspend the candidate’s right to vote andtherefore also to stand for election. Also, the candidatecould be subjected to prosecution under the criminalcode.83

79 The requirement for convincing evidence is problematic if thecomplainant is expected to have it since the point of anyinvestigation should be to unearth such evidence.80 CT 2007, s.236; Organic Act on the Election Commission 2007, s.26.81 The Council of State is the body responsible for drafting laws andacting as legal agent for the government.82 Any such decisions were first subject to the scrutiny from seniorofficials of the Council of State.83 CT 2007, s.237; See Organic Act on the Election of Members of theHouse of Representative and Senators 2007, ch.3.

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The ECT has the responsibility as indicated earlier ofdetermining the financial parameters of electoralspending. For elections to be perceived as a fair contestthere needs to be financial regulation of the expenditurethat contestants can devote to their campaigns. CT 1997did not directly deal with the crucial issue of settingfinancial limits on election spending. Rather, it was theorganic law that empowered the ECT to determine theamount of expenditure per candidate and for each party atelections.84 It also provided that if these limits wereviolated the ECT had the power to seize cash and/orproperty belonging to the perpetrator.85 However, CT 2007sets out explicitly as one of the ECT’s main duties thecontrol of financial contributions to political partiesand the auditing of the accounts of political parties.86

This addition is not surprising given the opposition fromindividual MPs and Senators to measures designed totighten up the organic law when it was amended in 2000.87

Finally, the ECT has an educational function relating tothe wider dissemination of democratic participation.88 Infulfilling this part of its brief the ECT targets forparticular attention pre-voters and new voters. It runsprogrammes to promote knowledge about democratic regimesand elections. It allows ECT visitors to experiencesimulations of elections so that potential votersunderstand the process more than they would by simplyreading about elections or by classroom learning. At thesame time it has extra-curricular learning materials,drawing upon multi-media and hi-tech resources which itmakes available to schools and other educationalinstitutions. However, the repeated blemishes to theECT’s reputation as an independent watchdog bodyobviously undermine its credibility to fulfil this aspectof its mission. It will be evident by now that the ECT

84 Organic Act on the Election of Members of the House ofRepresentatives and Senators 1998, ss.40-41. 85 Ibid, s.43.86 CT 2007, s.236 (3).87 Chantornvong, s, ‘The 1997 Constitution and the Politics ofElectoral Reform’, in McCargo, above n4. at 206.88 CT 2007, s.236(8); Organic Act on the Election Commission 2007,s.10.

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was given ample powers. In practice, as we will shortlyobserve, the question has been whether these powers havebeen exercised with sufficient rigour.

5 Performance of the ECT

This section provides a selective overview of theperformance of the ECT up to the military coup in 2006.Turning first to the electoral process, it has alreadybeen observed that the ECT was placed under a duty tooversee the conduct of elections at local and nationallevel and it had formidable powers. First, it is worthstressing again that, under CT 1997, to minimise thepotential for vote-buying Thai citizens were specificallyrequired to vote and an electoral system partly based onparty lists had been adopted.89 As a result, recentelections have witnessed exceptionally high turnouts andthe party-list method has placed more focus on the partythan on the personality of candidates. Secondly, we haveseen that the ECT began its work by taking decisiveaction where it found evidence of abuse. In the electionsheld in March 2000 78 candidates were alleged to havecheated in the senatorial contest. They were issued with‘red cards’ and disqualified. However, at the generalelection which was held the following year there wasevidence of more extensive malpractice. McCargo statesthat ‘widespread challenges to electoral outcomestestified to a new spirit of civic consciousness. Yetvote-buying and electoral manipulation were more rampantthan ever, and the credibility of the monitoring agenciessuch as the Election Commission was greatly undermined inthe ensuing furore’.90 It appeared that ‘the amount ofmoney used by [TRT] for advertising, persuadingpoliticians with local bases to defect from other partiesand for buying votes in the run up to the election wasprobably unprecedented’. It was offering 300 baht pervote, 100 baht more than any other party. TRT beat theopposition by outspending it.91 In addition, there were

89 Chantornvong, above n87, at 211.90 McCargo, above n4, at 17.91 McCargo, D, ‘Thailand’s 2001 General Elections: Vindicating Reform’

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many reports of MPs being offered huge sums to defect toTRT.92 After the 2001 general election 30 candidates weresummoned before the ECT and there were complaints lodgedto it in 312 constituencies.

Nevertheless, it was somewhat ironic that TRT managed toconstruct a manifesto which brought together an unlikelyalliance of varying factions, including ex-left-wingactivists and ex-right-wing thugs. In consequence, thenew coalition was often victorious and so many of theblatantly corrupt mafia-like incumbent politicians failedto get re-elected in 2001.93 After their election MPs wereroutinely bankrolled by TRT, receiving up to 200,000 bahtper month.94 It had been suggested that of the total of312 sitting MPs that were investigated by the ECT as manyas 66 would be disqualified. However, when the results ofthe investigations were announced in January 2002 onlytwo MPs received red cards resulting in immediatedisqualification while a further 12 received warnings inthe form of yellow cards. It has been claimed that thefailure to elect impartial commissioners has clouded theoutcome of painstaking investigations.95 Although theproceedings of the ECT were conducted in secret and putbeyond the reach of freedom of information laws, it lateremerged that the problem had been a failure by thecommissioners to reach unanimous agreement as required bylaw. As a result of the indecision most of theperpetrators of malpractice escaped any punishment. 96

The overwhelming win by Prime Minister Thaksin in theJanuary 2005 election, in which the Prime Minister andhis party took 370 of the 500 seats in parliament, wasequally unsatisfactory. It led to concerns over thein McCargo, above n4, at 252. See the discussion of vote buying inSangwon Suh and Gearing, J, ‘Democracy at a Price: the DirtiestElection Campaign in 20 Years’, Asiaweek, 1996. 92 As was pointed out above this practice is now unlawful.93 Giles Ungpakorn, ‘From Tragedy to Comedy: Political Reform inThailand’ 32: 2 Journal of Contemporary Asia 191-205, at 202ff (2002).94 See Chantornvong, above n87.95 Katerenchuk, W, ‘Thai Politics Monitor: Thai Politics ChronologyNovember 2001- July 2003’, in Nelson, M, (ed) KPI Yearbook No.2 (2002/03)(KPI, Nonthaburi, 2004), 51096 Ibid.

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further erosion of democracy. It was being claimed by theopposition that Thailand was on the path to becoming aone-party state.97 The collapse of support for theopposition Democratic Party was greatly assisted byThaksin’s control over a substantial section of the mediaand by blatant vote-buying. It has been estimated thatsome 10 billion baht or $US260 million was spent inbribes to voters during the campaign.98 The performance ofthe ECT chaired by Wassana Phermlarp fell a long wayshort of the previously high expectations. ‘Someobservers accused the commission of laziness andinefficiency, while others went so far as to imply thatthe commission was biased in favour of Thai Rak Thai …The chairman of Poll Watch Foundation, General SaiyudKerpol asserted that the election was plagued by violenceand intimidation of voters and candidates’.99 In responseto claims of malpractice, there was very little evidenceof positive intervention in the form of fullinvestigations followed by firm action to eliminatecontinuing abuse.100 The degree of exasperation felt bymany observers at the ECT’s perceived impotence wasencapsulated in an article published in The Nation(Bangkok): ‘Following its final ruling on malpractice atthe February 2005 polls, a monument should be erected inmemory of the Election Commission. The monument mightshow a man with a stack of money in one hand, a gun inthe other and a big smile on his face’.101

Controversy continued to surround the ECT. As wasdiscussed above, its decision to allow the election whichwas held on 2 April 2006 was challenged in the courts,.During the election itself, there were, once again, manyallegations that votes were being bought on a widespread97 ‘An Occasional Democrat’, Editorial, The Guardian, Manchester, 8February 2005.98 ‘Thailand’s Right-wing Populist Wins National Elections’ WorldSocialist Website, 10 February 2005. 99 Katerenchuk, W, ‘Thai Politics 2005: a Year in Review’, in NiyomRathamarit (ed) Eyes on Democracy: National and Local Issues, KPI Yearbook 3 (2004-2005) (KPI, Nonthaburi, 2006), 206. 100 ‘Role of the Thai Election Commission’, 21 January 2005, RadioSingapore International.101 ‘Two Fingers from the Election Commission’, The Nation, Bangkok, 19September 2005.

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basis. The ECT failed to uphold objections to theresults, and it required the King’s intervention beforethe Constitutional Court eventually held the electioninvalid, having initially confirmed individual resultswhich had been called into question. Furtherinvestigation of the conduct of the political parties(TRT and the Democrat Parties) in the elections of 2April 2006 was expedited by the military government afterthe September 2006 coup. Although the complaint hadoriginally been made to the ECT under CT 1997, theConstitutional Tribunal was granted responsibility forhearing the electoral fraud trial which commenced in mid-January 2007. The court's decision in May 2007 todisqualify the former PM and 110 officials of TRT isdiscussed above. In addition, there was also considerablecriticism following the failure of the ECT to disqualifycandidates for the senatorial elections having suspectedparty affiliations102 and for the ECT’s failure to preventvote-buying in the elections for the upper house.103 InJuly 2006 three election commissioners were sentenced tofour years imprisonment for mishandling the electionswhich were held earlier in the year.104

Following the coup of 19 September 2006 CT 2007 wasdrafted and then brought into force following areferendum in August 2007. Further elections were held inDecember 2007, resulting in the now familiar scenario ofa victory for the party supporting Thaksin amidwidespread allegations of vote-buying. ECT investigated83 candidates for electoral fraud, and six candidateswere handed red cards. Three rounds of by-elections wereheld as a result of ETC intervention. Electoral fraudfindings also led to the disqualification of the speakerof the House of Representatives in February 2008 and tothe dissolution of the PPP in December 2008. Currently

102 ‘Democrats Mull Suit against EC’, The Nation, Bangkok, 7 April 2006.103 ‘EC's Conduct Panned as 'Inefficient, Incompetent’, The Nation,Bangkok, 20 April 2006; ‘Major Party is 'Buying' Likely Vote Winner’,The Nation, Bangkok, 9 April 2006.104 ‘Thai Court Convicts 3 for Election Missteps’, International HeraldTribune, 26 July 2006. The main charge was allowing unqualifiedcandidates to run. The three were also disqualified from politics for10 years as well as losing the right to vote.

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(September 2009) it is now the turn of the Democrat Partyto be investigated in respect of allegedly illegaldonations.105 The local elections of September 2009 alsoevidenced ‘rampant’ vote-buying according to the ECT,with votes being bought for 100-500 baht or 2000 baht intightly fought districts.106

6 Conclusion

The complexity and sheer size of the problem of attainingfairness in all respects at all levels in elections inThailand has been elaborated upon here at some length. Aswith many other aspects of Thai constitutionalism theconclusion is necessarily a disappointing one, but onewhich offers some crumbs of comfort. It seems apparentthat attempts to regulate electoral malpractice out ofexistence are doomed to failure, at least until such timeas the political economy and legal culture of Thailandchange dramatically. In this sense the resolution of theproblem of electoral fairness is a function of theresolution of the large political problem that nowconfronts the country, which would appear to require somekind of a political rapprochement between the two sidesand agreement to proceed strictly according to agreedrules to be observed to the letter, including perhapsparticularly electoral rules. This in itself looks like ahugely problematical undertaking. However, it can also beseen that the period 1997 to date has been one ofexperimentation in which many lessons have been learnedand useful laws, structures, practices, experiences andprecedents have been established or undergone. A questionremains as to whether the same body should be exercisingwhat is essentially an organisational function and aninvestigatory function. It may be that the tasks ofadministering and then retrospectively investigating105 ‘EC Extends Democrat Funds Probe’, Bangkok Post , Bangkok, 25 August2009. 13 Democrat MPs lost their seats in Parliament as a result of ECT findings in July 2009: see http://www.thaindian.com/newsportal/politics/thai-election-commission-disqualifies-13-lawmakers_100218870.html106 The Nation, Bangkok, 7 September 2009.One candidate was said to haveborrowed 500,000 baht from a loan shark.

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malpractice relating to the electoral process should beseparated and placed in different hands, the point beingthat watchdog bodies ideally oversee a process ratherthan operate as an integral part of that process. It canof course be argued that Thailand has already very manyindependent agencies and creating even more and staffingthem with reliable and professional people in itselfconstitutes a formidable challenge given the relativelysmall number of Thai citizens competent and willing toundertake such duties. However, there seems to be anarguable case for revising the jurisdictional remit ofthe ECT and redistributing its investigatory powers,together with the officials with this expertise, to theNational Counter Corruption Commission or alternativelyto form a specialist branch of the police service toundertake this task.

Finally, we stress again that in a political system whichhas accepted vote buying by all parties as the norm thereneeds to be a fundamental shift towards constitutionalismby the main protagonists to coincide with theseinstitutional modifications.

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