Sore Losers

On July 3^rd a large turnout of Thai voters elected Yingluck Shinawatra and the Pheu Thai Party by a landslide margin, castigating the incumbent Prime Minister Abhisit Vejjajiva of the Democrat Party with a sharply lower number of parliamentary seats.  As they say, a week is a long time in politics, but nobody thought the Democrats would be so quick to try to disqualify the winning party – something they have done several times in the past.

The current situation in Thailand brings to mind Adam Przeworski’s famously elegant argument that “democracy is a system in which parties lose elections.”  Just as important as how the winners of an election behave, what happens to the losers is rather telling, as it represents the cornerstone of successful democratic.  According to Przeworski, a democracy is defined by the strength of its institutions, as even losing political parties provide a longer time horizon for its members to achieve political goals.  This provides the basis for the acceptance by these groups of election results and allows for preparation for the next democratic opportunity as afforded to them under the rules of the system.  Przeworski was keen to note that no democratic system, no matter how pure the observation of its rules may be, is capable of definitively resolving conflicts between parties, but rather achieving the temporary suspension of these disputes through elections.

In post-election Thailand, it seems that some people don’t understand these basic principles, as an alliance of actors from the Democrat Party, some traditional elites, and certain members of the military actively work to interrupt the democratic process, regarding themselves as above the law.

Administrative tricks are a familiar modus operandi for the elite, having interfered to reverse democratic outcomes on numerous occasions – perhaps most famously with the absurd removal of Prime Minister Samak Sundaravej for having appeared on a cooking TV show.  The latest attempt not only runs the risk of yet again damaging the country’s international reputation, it’s also legally groundless.

The complaint filed by the Democrats with the Electoral Commission alleges that at least two of the 111 banned Thai Rak Thai executives (Thaksin Shinawatra and Chaturon Chaiseng) participated in Pheu Thai’s campaign activities, helped design policy proposals, and were involved in candidate selection.  They allege that this violates Section 97 of the 2007 Organic Act on Political Parties and suggest two remedies:  a) Dissolution of Pheu Thai; b) Extension of Thaksin and Chaturon’s ban by another 5 years.

However the wording of the Act does not even cover the allegations contained in the complaint.  The Act states that “Where a political party has been dissolved due to the violation of Section 42 paragraph two, Section 82 or Section 94, a person who was previously a member of the Executive Committee of the dissolved political party shall not, within a period of five years from the date of the dissolution, apply for the formation of a new political party, be a member of an Executive Committee of a political party, or play a role in the registration of a new political party.”

Given that neither Thaksin nor Chaturon have applied for the formation of a new party, nor are they members of Pheu Thai’s Executive Committee, the Democrats’ complaint is baseless. There is no specific prohibition in the Act against campaigning for a party, advising a party unofficially, or speaking on its behalf.  [NOTE: Some readers have pointed out that the English version of the Act includes the term "promote" as one of the prohibited campaign activities. However, the term "promote" in the English text is a translation of the original Thai, which is much more specific. The Thai word used does not mean "promote" as in "campaigning" or speaking on the party's behalf, but rather "participate/play a role in the registration of a new political party." The original claim that the Act does not contain a specific prohibition against campaigning for a party, advising a party unofficially, or speaking on its behalf is valid. See the Thai original here.]

Further, even if the Electoral Commission were somehow able to conjure up the reasoning to find a non-existant violation of the Act, the law only contemplates penalties for the banned politicians, not for the party (as per Section 120 of the Organic Act on Political Parties, “imprisonment for a term not exceeding two years or a fine not exceeding forty thousand baht (THB 40,000), or both“).  Therefore the proposed solutions contained in the Democrats’ complaint – mainly aimed at dissolving the PTP and taking over control of the government yet again through unlawful administrative means – is completely and thoroughly illegal in any objective assessment.

In order to dissolve Pheu Thai , the Court would have to establish, in accordance with Section 237 of the Constitution, that one of its candidates committed electoral fraud “resulting in the election to be conducted in a dishonest or unfair manner,” and that at least one party executive was complicit in the fraud or failed to stop it. Electoral fraud is defined narrowly as a “violation of Organic Act on the Election of Members of the House of Representatives and the Source of Senators, or Rules or Notifications of the Election Commission,” but does not include infractions of the Organic Act on Political Parties of the kind that Thaksin and Chaturon stand accused of committing. No reading of the relevant statutes can support the dissolution of Pheu Thai based on the role played by banned politicians, as the conditions simply do not exist.

Of course, stranger things have happened in Thailand, but even by the very low standards of the past five years, going forward with this complaint would be a brazen affront to basic rule of law.

With every repeated attempt to disqualify a democratically elected, popular, and legitimate ruling party, Thailand’s elites and certain military leaders are contributing to potentially damaging instability.  From the perspective of foreign investors, it is not the Red Shirt democracy protesters nor the pragmatic “results-focused” policies of former businesswoman Yingluck Shinawatra that pose any threat to the country; the problem is instead caused by those who ignore the rules and attempt to impose an unelected leadership against the will of the voters.

The military-elite alliance and their supporters would do well to be more patient, and respect the results of the election as an expression of popular will.  Nobody said democracy would be fun, especially when you land on the losing side of a vote, but it is precisely these rules of the system that allow for a civil negotiation of social disputes.  They should participate in the political process, even if from a minority of parliamentary seats, and their policy preferences will have the opportunity to be expressed.  Maybe, just maybe, if the military-elite alliance were to provide Pheu Thai Party the chance that they have earned to form a government and guide the administration of public affairs for a period, then voters can come back during the next general elections and evaluate their performance – as opposed to a pre-ordained rejection justifying an anti-democratic intervention before they have even spent one day in office.

Prof. Thida Thavornseth, chairperson of the United Front for Democracy against Dictatorship (UDD), has said that the Red Shirt movement intends to continue working hard to ensure that the rules and procedures of democracy are observed, and that no interference derails the popular participation of citizens in the political process.  The current leadership may have changed, but the continuing and growing presence of a mass social movement of once-disenfranchised members of Thai society means that all sectors of the political environment must take a step back and consider the rights and grievances of fellow citizens.

As Adam Przeworski writes, “In a democracy all forces must struggle repeatedly for the realization of their interests.  None are protected by virtue of their political position. (…) The crucial moment in any passage from authoritarian to democratic rule is the crossing of the threshold beyond which no one can interfere to reverse the outcomes of the formal political process.”

It is now time for Thailand to take this important step.