COM 02/2015

Designing Thailand’s Parliamentary Election System, 1997 to 2015

Dr. Michael Nelson, CPG Senior Research Fellow



I have chosen the years 1997 and 2015 in the title of my presentation because these years saw, or hopefully will see, new constitutions that include substantial sections on the country’s election system. In fact, however, the process of institutional and constitutional development that we are looking at today started almost 10 years before 1997 with the coalition government of Chartchai Choonhavan that came to power in 1988. This government was the first fully elected one, following on the more immediate years after the massacre at Thammasat University in October 1976, and then the years of the unelected Prime Minister Prem Tinsulanonda between 1980 and 1988. With Chartchai coming to power, one most important question was whether elected politicians and their political parties, after their first failed attempt between 1973 and 1976, would be able to manage the political system on their own.

As the coup in 1991 showed, Chartchai could not handle the situation. He did not only face the accusation of presiding over a “buffet cabinet,” but was accused of operating a “parliamentary dictatorship” in which the political office holders bullied the military and the civil servants. Both issues relate to the nature of executive power in Thailand. This power must run into trouble if, one, the losers in elections do not accept that they are largely excluded from making collectively binding decisions and, second, if the state apparatus deems itself above elected politicians in deciding about policies (and, more broadly, being a supra- constitutional actor). The second aspect was symbolized in an innovative staff unit of the Chartchai government comprising a small group of young energetic policy- makers that came to be known as “Ban Phitsanulok.” Amongst others, this group included Pansak Vinyarat (later Thaksin’s principle policy advisor), Surakiat Sathienthai  (later  Thaksin’s  foreign  minister),  and  Borwornsak  Uwanno  (later secretary general of the Thaksin cabinet). In short, these people envisaged  a cabinet that would exert strong policy leadership over the state apparatus. – And they, in particular Borwornsak, took this idea of strong political-executive leadership with them into the period of “political reform,” which started soon after the “Black May” of 1992.

1. The Democracy Development Committee (DDC) of 1994/1995

When the “Democracy Development Committee” under Prawase Wasi (with Borwornsak as a key member of his group) published its recommendations in April 1995, a core expression was “rationalized parliamentary system.” This meant a substantial loss of power by parliament to the benefit of the executive. The authors of the recommendation expressly tried to repeat the move from the “classical parliamentary system” to the “rationalized parliamentary system” that they thought countries in Europe, such as France and Germany, had performed after the Second World War. This issue was then related to these countries’ continued success in economic  development  after  WWII.  If  Thailand  could  only  make  similar improvements to its governmental system, the proponents thought, the country could also progress economically and socially along the lines of those European nations.

The modernization and “rationalization,” then, concerned two major problems. First, the existence of coalition governments in western countries had led to a lack of stability and quality of governments. Regarding France, it was said that this problem had persisted since 1875 until it was solved by De Gaulle’s constitutional reform of 1958. In Thailand, this problem had prevented the government from working continuously, and made decision-making difficult, because coalitions tried to avoid conflicts. Second, majority government parties, for example, in the United Kingdom, Australia, or New Zealand, had dominated parliaments to the point that they could no longer hold the governments accountable. This situation could easily lead to the dictatorship of the majority (“parliamentary dictatorship”), as could be seen in Nazi Germany. In Thailand, although there had not been any dominant majority party (in 1995 – Thaksin came later), similar criticism had nevertheless been voiced since the year 1978.

Thus, the core question from this perspective was whether Thailand should keep its outdated representative institutions or try to modernize or “rationalize” them. Should one embark on reforms to construct mechanisms and processes, “in order to control the behavior of politicians, create desired results, and eliminate undesirable elements?” Not surprisingly, the answer was “yes.” The DDC’s proposals, then, envisaged a parliamentary system with two or even three chambers. The number of members of the House of Representatives should be reduced in number to 290 to 300 MPs, each MP serving about 200,000 people. The electoral system should be changed  from  multi-member  to  single-member  constituencies  with  “simple majority vote” (plurality). This would make it comply with world electoral principles since most countries used the plurality vote. Moreover, it would secure equality of the votes, unlike in the then used multi-member system in which some voters had a single vote, while others had two or three. Single-member constituencies would be neither too small nor too big so that individual MPs could still take care of the entire area. “Good and skilled people” (khon di mi fimue) who were recognized by the people could stand in elections more easily. In this context, the report rejected criticism that smaller constituencies would lead to more vote buying, and thus to more influential people entering the House. Rather, vote buying was a problem of elections in general. It was not limited to SMC but also existed in the MMC.

The recommendations also included a section on how to curb violations of the election law (mainly: vote buying), and on how to open opportunities for “good people” to access the political system. These have been two key themes in designing Thailand’s representative system in 1997, 2007, and in 2015.

They had already been expressed in the title of the election-related research report, which was part of a set of 15 reports (organized mainly by Borwornsak Uwanno) written in preparation of the DDC’s work. Its main title says: “An election system that reduces vote buying and gives good people an opportunity to be election candidates.”

Let me quote how the DDC’s recommendations defined the underlying problem for which a solution would have to be found. Note that this problem statement, a decade later, would manifest itself in the struggles between the yellow shirts and the red shirts. Now, let us hear the quote:

The urban middle class dislikes vote buying and vote selling, because middle class people are economically and socially ‘independent’ and thus do not need to depend on anybody. This is different from people in rural areas, who lack basic economic means (roads, electricity, water sources, etc.) and are still poor. They need to ‘depend’ on patronage and support in getting their basic problems solved. Therefore, the electoral decisions of most rural people take on the form of ‘repaying’ their patrons. This makes the understanding of ‘democracy’ in rural areas different from that in urban areas. Moreover, this directly affects the development of democracy, because urban people have ‘more voice’ but ‘fewer votes,’ while rural people have ‘less voice’ but ‘more votes.’ Consequently, urban people have little acceptance for a House comprising mostly of members who are elected by rural people.

Solutions, then, included, 1) the number of voters should be increased so that vote buying would become too expensive; 2) the importance of candidates elected through the patronage system should be reduced, while the number of such MPs should be kept at a level sufficient to assist the rural voters with solving their problems.

This statement of solutions was followed by four measures, the first of which concerned the election system (the three others were the reduction of the voting age, the limitation of the campaign period, and the establishment of an election commission). The election system was to be changed to a mixed system (rabop phasom) comprising 100 MPs elected proportionally according to national party lists, and one MP per 200,000 people elected in plurality SMC, that is 290 to 300 constituency MPs (this was the same the preparatory report had suggested). People would therefore have two votes. The party-list vote would force the parties to place good and well-known candidates on their lists to make them credible and popular.

Candidates on the party lists could not buy votes, because they would not know whether they would be elected, and the national constituency would go far beyond their financial means. Some political parties might not hold any much hope for gaining seats in the SMC system but rather target the proportional system. “This will make it easy for capable and well-known people to establish new political parties.”

2. The Political Reform Committee of 1995/1996

The process of political reform was interrupted by the demise of the Chuan government and the subsequent elections of 1995. The election brought Chart Thai’s Banharn Silapa-archa into the position of prime minister of yet another coalition government. In August 1995, this government established the “Political Reform Committee,” which was headed by Banharn’s younger brother, Chumphol. In May 1996, this committee presented its “political development plan.” Concerning the House of Representatives, the report defined the problem as elections being neither honest nor fair, because there was vote buying. There were various causes for this, for example, the election administration, an unsuitable election system, and insufficient knowledge of the people about their rights. Consequently, the goal should be to make elections free and fair so that good people could engage in politics. Short-term measures to be taken included, first, the establishment of an election commission. It should have the power to supervise (kamkap dulae) elections. Second, the election system for MPs should be changed to “The First-Past-The-Post System or Plurality System,” combined with a “List System or Proportional Representation.” The proportional part was seen as strengthening the political party system, and providing good people with knowledge and capability more opportunity to access the political system, and consequently have a chance to govern the country. This “political development plan” went a bit further than the recommendations of the DDC in that it suggested that the number of proportional or party-list MPs should be half of the total number of MPs. For the party-list MPs, the country was supposed to serve as one constituency. Moreover, it allowed constituency MPs also to stand on the party list.

3. The Constitution Drafting Committee (CDC) of 1997

Therefore, we can say that, between 1994 and 1996, a consensus had been built about changing Thailand’s time-honored simple plurality election system with multiple  MPs  to  a  mixed  segmented  or  parallel  system  comprising  both constituency MPs and party-list MPs (MMM, not MMP!). The drafting of the 1997 Constitution took place on the basis of this consensus. The key drafter, occupying the position of the CDC’s secretary- general, has a familiar name: Borwornsak Uwanno. His immediate “boss” was another core member of the establishment, former appointed prime minister and CDC chairperson Anand Panyarachun. The electoral system change indicated in the documents from 1994, 1995, and 1996 was also contained, already in its final 400 to 100 formula, in the initial framework issued in March 1997 as a document intended to facilitate public hearings.

Finally, the 1997 Constitution included the following key stipulations regarding the representative system:

The House of Representatives comprised 400 constituency MPs (one MP for approx. 150,000 people) and 100 MPs elected based on closed national party lists. Constituency candidates could not also stand on the party list.

To receive party-list MPs, a party had to overcome a five-percent threshold. Modeled on the German threshold, five percent was much too high for Thailand. Moreover, the second element of the German system, that proportional MPs would be allotted to a party that gained at least two or three constituency MPs, was not applied. As a result, in the 2005 elections, the Mahachon Party gained 4.34 percent on the party list, but its seat claim only included its two constituency MPs. With a proportional election system in place, the party would have gained at least 23 seats. Given the Thai political party situation, a threshold of one percent would be practical in eliminating many tiny outfits.

Multi-member constituencies were replaced by single-member constituencies. This made the constituencies much smaller than before. Some argued that this would facilitate vote buying since the number of targeted voters would be much smaller. On the other hand, it made election campaigns much easier for the candidates.

Introduction of compulsory voting. This measure aimed to increase the number of voters, and thereby expand the pool of voters not under the influence of vote buying.

Vote counting was moved from the polling stations to a central polling station in each constituency. The assumption here was that counting at the polling station enabled vote canvassers easily to check how successful their vote buying was, and perhaps track voters whom they suspected of having cheated them. Counting the ballots from all polling stations together in one single place, after thoroughly mixing of all ballot papers, would increase the voters’ freedom. Though a sound idea, in practice, this led to immense management problems, and to a reduction in the transparency of vote counting since almost nobody would bother spending two days  and  nights  observing  the  event.  Most  importantly,  the  election  results remained the same, that is, the same candidates as before were elected again. Election management was moved from the ministry of the interior to the Election Commission of  Thailand.  The  ministry  had  long been  seen  as  colluding  with certain  political  parties  and  election  candidates,  especially  those  in  respective outgoing governments. The ECT was supposed to add a degree of neutrality to election management.

The prime minister and MPs, upon becoming ministers, had to vacate their status in the House. It would have necessitated by-elections had those positions been filled by constituency candidates. In practice, the parties placed their key politicians on the party lists to secure their election. The cabinet would then be drawn exclusively from the party-list MPs. This strengthened the hand of the chief executive substantially in two ways. First, party leaders would have great weight in determining who would be placed on which position on the lists. Second, after party-list MPs moved up to become ministers, they were entirely in the hand of the PM since their dismissal would not allow them to regain their MP status. And since constituency MPs were in practice excluded from ministerial appointments, the

House made some headway in becoming a “rationalized parliament” dominated by a strong government.

As we know, certain constitution drafters, after the elections of 2001, indeed got what they had wanted: a strong government under Prime Minister Thaksin Shinawatra (though it remains unclear whether this was due to the institutional design of the new constitution or to the person of Thaksin and his resources). And while Borwornsak Uwanno could only play a limited role in Chartchai’s “Ban Phitsanulok” group of policy developers, the principle of this group now guided the entire Thaksin government, with Borwornsak being Thaksin’s cabinet secretary general. For being able to assume this position, his relative Wissanu Kruea-ngam, with whom he had lived in the same house in Songkhla when they were children, had to move up to the position of deputy prime minister.

4. The CDC of 2007 (including the 2010 amendments)

Eventually, Thaksin became too strong. The anti-Thaksin forces, which had existed right from the beginning in 2001, grew in the subsequent years,  and suffered a big shock with Thaksin’s triumphant election victory in 2005. They finally came together in a concerted effort and managed to prompt the toppling of their arch enemy in the coup of September 2006. As usual, the military tore up the 1997 Constitution, thereby necessitating the drafting of a new document. An ideologically relatively homogenous group of 35 members, almost exclusively comprising members of the Bangkok-based bureaucratic and academic establishment (among them 19 legal bureaucrats, judges, and lecturers of law, but only one political scientist) was assigned this task.

It was clear enough that this constitution had to be “anti-Thaksin”. However, in which way, and how much was less clear. One important constitutional area where this played out was the design of the election system to the House. In a surprising move, Thammasat law lecturers used a CDC member to propose and push for the adoption of a German-style mixed-member proportional election system (MMP). This system would have reduced the decidedly disproportionate share of House seats for the Thaksin parties, and given many more seats to the establishment’s Democrat Party, thereby strengthening the balance of power in the House. Thus, this system would have corresponded to what most members on the CDC and the CDA wanted to achieve, and after the election of 2007, this MMP election system would have been a real game changer. To understand this, let us have a look at the following table.

As can be seen from this table, if MMP had been applied in the post-coup elections of 2007, the number of seat claims by Thaksin’s People’s Power Party and the establishment’s Democrat Party would have been almost equal. Given that CTP and PP leaned towards the Democrats, it would have been highly probable that the result of this election would have been a coalition government led by Abhisit Vejjajiva, rather than the coalition government led by PPP’s Samak Suntharavej.

Therefore, the question is what made the CDC decide against what seemed to be in their best interest of using the coup-generated opportunity to rewrite the rules of the game in order to push back the influence of Thaksin Shinawatra? One possible answer is that the CDC members and those in the Constitution Drafting Assembly (CDA), who had the final vote, simply misjudged how popular Thaksin would be in the first post-coup election (despite the dissolution of TRT and Thaksin’s exclusion from politics). Another answer would point to the internal division in the CDC. The MMP proposal led to a struggle between what one might call the “conservatives” (anti-Thaksin, but pragmatic and thus against drastic changes) and the “reformers” (anti-Thaksin and ideological, thus open to drastic changes). Their relationship was not without animosity. While the reformers insinuated that the conservatives, being against the introduction of MMP, somehow ignored the best interest of the country, the conservatives accused the reformers of not properly understanding Thai political culture and structures, and that they had therefore proposed an election system that they thought was “inappropriate” for the country. While the reformers were proud to say that “This system will completely change the face of the election system”, and considered sticking to a revised 1997 system as a major “blunder,” the conservatives were worried that “Thais have not been used to this … it would be too complicated.” Thus, the “behavior of the Thais must be changed gradually. Sudden and strong change will lead to confusion.” Finally, there was also an issue concerning the understanding of MMP. Many CDC/CDA members simply had problems comprehending the system and especially its envisaged impact. Anyway, in the end, MMP was defeated by MMM in a close vote with 45 to 39. The new election design of 400 constituency MPs and 80 party list seats also included a return to multi-member constituencies, the return of vote counting to the polling stations, the lifting of the five percent threshold, and the replacement of the national party lists by eight regional lists. Moreover, MPs, upon becoming ministers, did not any longer lose their positions in the House.

As I have said above, this electoral arrangement did not advantage the Democrat Party to the degree many had hoped. Therefore, electoral stipulations of the 2007 Constitution were replaced in a constitutional amendment that had been initiated by the Abhisit Vejjajiva government shortly after its deadly crackdown on the red- shirt protesters in May 2010. Interestingly, the committee in charge of working on the amendment was chaired by Sombat Thamrongthanyawong, the president of the National Institute of Development Administration (NIDA), who had long shared the political outlook of the People’s Alliance for Democracy (PAD), and later assumed the position of PDRC chairperson, with Suthep Thaugsuban being his secretary-general. Most of his fellow academic committee members operated based on a similar outlook, while some of them had long been connected to the Democrat Party, and sat on the CDC in 2007 (Somkhit Lertpaithoon, Nakharin Mektrairat, Woothisarn Tanjai). Most of them are also heavily involved in the current constitution-drafting exercise. At that time, however, only moderate changes were made, such as having 375 constituency MPs and 125 party-list MPs, and reintroducing the single-member constituencies and national party-lists. The threshold remained abolished. More drastic changes, such as abolishing constituency MPs altogether and having only proportional MPs, were pondered but not adopted.

5. The Constitution Drafting Exercise of 2014/2015

With the coup of 2014, we not only meet Borwornsak Uwanno as secretary general of the CDC again (and Wissanu Kreua-ngam as deputy prime minister), there is also a more ideological climate in the air, and the composition of the current CDC is much more ideological than was the case in 2007. They are also a lot more isolated from public opinion, and seem to be intent on imposing their ideas on the rest of the country. The “reformers”, so to speak, have the majority, and many of the “conservatives” of 2007 have by now also turned into reformers. Nevertheless, it came as a surprise when the Bangkok Post on 1 December 2014 headlined an article, “Panel favours German electoral model,” followed, on 13 December 2014, by the headline, “CDC accepts German method.” And on 25 December 2014, The Nation carried an article headlined, “CDC picks German system.”

The MMP seems to be appealing because it would truly mirror the voters’ political party preferences in the number of seats that political parties could claim in the House. Moreover, the disproportionality of seats resulting from the previous system would be eliminated. Smaller political parties would have a good chance of making it to the House. Importantly, drafters envisaged that no single party could gain a sufficient number of seats in the House to establish a single-party government, as Thaksin could in 2005. This way, the strong executive aimed for by many advocates since 1988 would be replaced by the type of government that it was designed to improve on, namely weak coalition governments. The possibility of surplus seats for some parties is accepted, meaning that the 450 MPs envisaged in the constitution (250 constituency and 200 party list) could in practice be higher, while one- or two-seat “political parties” might be kept out of parliament by stipulating a one-percent threshold. A paper authored by Borwornsak additionally mentions that MPs who become prime minister and ministers would have to resign their seats in the House. The national party lists would return to regional lists again. Regarding these lists, two innovations are considered. First, the previously closed lists might be turned into open lists, meaning that voters would have to arrange the order on the lists themselves. Second, “party lists” could also be submitted by so-called “political groups.” This measure complements the permission for independent candidates to run for MP in the constituency contests. Also innovative is the suggestion that election candidates must declare their assets before they are permitted to register their candidacies. Even more: they will be required to state exactly how they have acquired their assets. Finally, the Election Commission of Thailand is set to lose its task of administering elections, that is, that task the commission actually did quite well.

At this point, the election design seems to be decided already, notwithstanding continued opposition, for example, by Sombat Thamrongthanyawong, who has been using his chairmanship of the National Reform Council’s political affairs subcommittee to push for a variant of presidentialism, called “elected prime minister.”