Commentary: Thailand’s first fully-contested parliamentary elections since 2011
By Jan Kliem, Senior Programme Officer and Researcher at the German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG
On March 24 2019 Thailand held its first successfully completed general election since 2011. In it, ruling Prime Minister Prayut Chan-o-cha was looking to extend his time as Prime Minister, which began after his ascent to the office in a power seizure by the armed forces in 2014. Despite official results only being announced by the Election Commission of Thailand (ECT) later in May, some facts and trends have already emerged.
The unofficial voter turnout at around 75% seems roughly in line with recent historical experience. While opinion polls conducted prior to the election had consistently reported that at least 90% of respondents intended to vote, voter turnout in 2007 and 2011 was 85.4% and 75%, respectively. In Thailand, voting is mandatory and despite few consequences for the average Thai for disregarding this rule, Thais by and large show up on election day. A slightly more concerning figure is the high number of invalid ballots at over 5.5% (over 2 million). 
The preliminary results paint a complex picture of Thai politics to come and it will take some time until a somewhat clearer picture will emerge and coalitions will form for both government and opposition. No side can celebrate a resounding victory, although anti-government forces have done remarkably well considering that the run-up to the elections, and indeed all of Thai politics since 2014, resembles all but a non-level playing field heavily stacked against the opposition.
The parties that have done well in the elections include current PM Prayuth’s Palang Pracharath, which is looking to be the second biggest party in the House of Representatives and will therefore most likely have no problems finding sufficient votes for its PM candidate to lead the new government. This is especially true since their PM-candidate, Prayuth Chan-o-cha, can also count on the 250 Senators to vote in line with the party on the election of the PM. 250 plus Palang Pracharath’s coalition MPs will certainly be enough. Palang Pracharath is also likely to be the party that has won the most votes overall (around 7.9 million with 94% of votes counted), while Pheu Thai has most likely won most seats in the constituency votes (around 7.4 million votes with 94% of votes counted).
Despite winning most seats, Pheu Thai will have won less seats than observers had expected prior to the elections. This was partly due to a change in the voting system, as well as due to the back-firing of a risky strategy in reacting to that change which Pheu Thai embarked upon when they established a secondary party (Thai Raksa Chart) which was meant to win party-list MPs in constituencies where Pheu Thai’s own candidate was not thought to be strong enough to win. As a result, Pheu Thai only fielded candidates in about 250 of the 350 constituencies, leaving others to Thai Raksa Chart. The plan eventually failed when the Constitutional Court ordered the dissolution of the Thai Raksa Chart Party for naming a member of the Royal Family as its prime ministerial candidate.
Be that as it may, Pheu Thai will be a strong force in parliament and together with likeminded parties, could make it difficult to govern against. As it stands, it will definitely be the party occupying most seats in the lower house and it is useful to remember that controlling the lower house does not leave one entirely without options under the country’s current constitution.
A simple majority in the lower house, as is now likely held by opposition parties, can for instance field a no-confidence motion against the PM and his cabinet or cause problems when significant bills such as the annual budget need passing. The pro-Prayuth front of course has many aces up its own sleeve, especially during the next five years when special rules apply, (especially involving the Senate in votes, much like the vote on the PM) but not all is lost for the opposition.
Future Forward Party
The Future Forward Party has done exceptionally well, significantly beating the Democrat Party which achieved such a poor result that party leader and former PM Abhisit Vejjajiva stepped down with immediate effect. He had previously stated he would not support current PM Prayuth as PM after the elections, but with him stepping down, the Democrats are back on the fence with regards to future coalitions. Future Forward is based on preliminary results the third most successful party in terms of votes (5.8 million with 94% of votes counted), and is posed to be a significant force in the house, too.
While they will be ready to join a coalition against the current regime which is consistent with their campaign promises, the legal challenges against their leaders continue to mount. Thanathorn Juangroongruamgkit in particular already faces criminal charges under the Computer Crimes Act for allegedly spreading false information last year. He has now also been summoned by the police on separate charges on sedition, linked to an anti-government protest in 2015. The charges are serious and if found guilty, could mean an end of his political career as well as time in prison. As the charges date back to 2015 and concern matters of “state-security”, he may be tried in a military court. His lawyer said the jurisdiction might be petitioned with the Constitutional Court however. Most recently, the ECT has resolved to add to the list of charges and accuse him of breaching the election law by holding media company shares while competing in the general elections. Article 98 of the Organic Act on the Election of Members of the House Representatives bans MP candidates from holding shares in a media company after registering in the election. Thanathorn claims he had already sold his shares in a media company called V-Luck Media as required by the law before becoming a candidate.
Anxious wait and uncertainty before final results
As the dust settles in the immediate aftermath of the elections, critics have pointed to a number of irregularities which they would like the Election Commission to address and explain. These include a historically high number of invalid votes, an abrupt end and delay of vote counting on election night, issues concerning the inclusion of votes from Thai nationals abroad, as well as suspicions as to constituencies in which the number of votes counted was exceeding the number of eligible voters. Additionally, there are rumours the EC’s vote reporting technology was hacked which could explain some of the irregular numbers in particular constituencies.
The European Union called the election an “important step towards restoring a democratic form of governance” and that it looked forward to “the announcement of the election results as soon as possible. It is also important that any reported irregularities are resolved swiftly and transparently.” Others were less cautious in their statements, including the two independent groups able to monitor the Thai election: The Open Forum for Democracy Foundation’s impressions suggests not that the vote was rigged, but that a lack of professionalism and due preparation undermined the election. The other observer, the Asian Network for Free Elections (ANFREL), comprising of 34 international election observers, has published its interim report. It states that ANFREL did not witness major irregularities during voting or counting either, but not only was the “campaign environment […] heavily tilted to benefit the incumbent military junta and the candidates that it supports”, it also found that the EC could have performed better. “The lack of transparency and cooperation between the ECT and other electoral stakeholders severely limited the outflow of information, thereby fueling further distrust in the process and the institution itself.”
Exiled former PM Thaksin Shinawatra gave a number of interviews as well as writing a commentary in the New York Times immediately after the elections, saying that Thailand’s election was marred by irregularities and rigged to ensure the military retain their political grip. He also pointed out that the suspicion surrounding the vote will be detrimental to its credibility and it will not help political stability in Thailand. His concerns were echoed by some critics on Thai social media who allege that rules as to what constitutes a “valid” vote were applied stricter to those ballots that indicated a vote against the current regime.
Indeed, the ECT announced that a recount for two polling stations and new elections at six polling stations has been ordered due to the number of voters not matching the number of ballots. These efforts are not enough however for a number of leading Thai academics who have voiced their concern about the post-election performance, in particular with regards to the fact that there is so much uncertainty about the formula that will be used by the ECT to distribute the party list seats among the parties which should have been clear beyond doubt before the elections were held.
Prinya Thaewanarumitkul, Thammasat University’s vice-rector, explained that “according to the original formula, the anti-Prayut camp has 253 MP seats while the Palang Pracharath Party [PPRP] and the Action Coalition for Thailand Party (ACT) have won 123 MP seats. However, the Constitution Drafting Committee has proposed a second formula to the EC in which 11 small parties, which won fewer than 71,050 votes each on average, could pocket more seats at the expense of bigger parties.”  The ongoing uncertainty and perceived meddling with the formula is a real affliction to a confident application of the rule of law.
As of now, it is still unclear what formula will be used exactly. The ECT has referred the matter to the Constitutional Court which has decided however that it is the ECT’s responsibility to decide on the formula and it was not going to rule on its legality. In a second attempt to receive increased legitimacy on the matter and to clear some of the confusion, the Thai Ombudsmen have voted to ask the Constitutional Court to rule whether some provisions of the Organic Act on the Election of Members of the House Representatives involving the allocation of party-list MPs are constitutional. The ombudsmen were of the opinion the formula outlined in the Act added criteria and was different from what is stipulated in the constitution.
Despite all uncertainty and ongoing legal proceedings, the Election Commission said that the results of both party-list and constituency MPs will be unveiled by May 9 as mandated by the constitution. It will remain to be seen therefore, who exactly will have how many seats and what kind of coalitions will form. The result appears close despite all efforts by the ruling powers to stack the deck in its favour. In the end, they will likely achieve their goal of continuing its time in power. It may however not be as comfortable as they had hoped and they may have to deal with much more opposition than they were used to since 2014. Prayuth Chan-o-cha will most likely remain in his job for the time being. Article 44 however, PM Prayuth’s magic wand, will incidentally end on the day a new cabinet is convened.
 The voting system changed from a mixed-member majoritarian to a mixed-member apportionment (MMA) system. This means that parties (such as Pheu Thai) who used to do well on the second party-list vote and therefore got a large number of “extra” MPs in addition to the won constituencies, will be gaining fewer overall seats. The MMA system does not add the party list seats to the constituency seats already won by a party. Voters cast only one vote and the total number of votes a party receives through its candidates determines the total share of seats of a party.