Michael H. Nelson

Electoral Rules Concerning the House of Representatives in the 2007 Thai Constitution

Working Paper Series

No. 104

December 2009

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ELECTORAL RULES CONCERNING THE HOUSE OF REPRESENTATIVES IN THE 2007 THAI CONSTITUTION1

Michael H. Nelson Visiting scholar, Faculty of Political Science Chulalongkorn University

Introduction Since this paper is part of a panel on “Government and Political Legitimacy,” let me begin with a statement Wicha Mahakhun 2 made in the 11th meeting of the Constitution Drafting Committee (CDC) on 22 February 2007. He said, “I want us to abolish the situation in which only two groups exercise power, namely, first, those who have great expertise in conducting elections and, second, those who use their weapons to seize political power. If we can create politics that do not only have these two groups, then our constitution will be sustainable.”3 One does not need to attach too much significance to a statement made at a meeting but still wonder why gaining power through electoral expertise should be illegitimate in a democracy, a system of government that is based on elections. Wicha’s background assumption probably was that “electocrats” (as critics call politicians in Thailand) win elections solely by buying votes. Moreover, he did not mention the group he himself belonged to—the ammart – that in past decades (including after the coup of 19 September 2006) had only been too willing to help those with the guns and tanks to seize power from those who relied on elections by the people, thereby encouraging the military to undertake coups.

1 Paper presented at the KPI Congress XI, “Conflict, Legitimacy and Government Reform: Equitable Allocation of Resources in Thai Society, November 5-7, 2009, United Nations Conference Centre, Ra- jadamnoen Avenue, Bangkok; Group 1: “Government and Political Legitimacy”. This paper presents some preliminary information from an ongoing research project conducted for the King Prajadhipok’s Institute. Its title is “The National Assembly of Thailand: Constructing a Representative Institution (1997-2008).” The author is currently in the process of data collection. For verified information, please consult the final report. 2 Wicha Mahakhun is a former judge who now serves on the National Anti-Corruption Commission. 3 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๑๑ วนพฤหั ัสบดีท ี่ ๒๒ กุมภาพนธั  ๒๕๕๐, p. 56.

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Thus, we need to expand Wicha’s two-group model. In fact, recent Thai politics have been shaped by the respective strength of five groups and political models, including their interactions. In addition, the normative appeal of the world model of democracy has served as an intervening variable and source of encouragement during this period. These five groups and models are:

(1) The monarchy (including the Privy Council and their respective informal networks) as Thailand’s former socio-political apex (until 1932) with its renewed claim (since the early 1950s) of being the country’s enlightened as well as enlightening “soul of the nation”.

(2) The military as a self-interested and closed organization that also poses as the self-appointed guardian of national unity and survival, protector of the monarchy, and final arbiter about who is allowed to govern the country.

(3) The informal socio-political networks (categorized as ammart) of leading bureaucrats, technocrats, and academics involved in politics and administration, who claim to possess superior knowledge as well as morality and thus consider themselves to have special rights in guiding the country’s social, political, and economic directions (this group is Thailand’s version of Plato’s “true navigators”).

(4) The politicians with their vast informal and exclusionary networks at the provincial, regional, and national levels (including their factions and political parties), who claim that they represent the people, and that constitutionally produced electoral success provides them with the democratic legitimacy to govern the country and dominate the other groups and models in terms of policy making.

(5) Finally, there are the people themselves, who are the supposed sovereign of the democratic political system. Their involvement in politics (as citizens, voters, party members, target group of policies, civil society groups, protestors, and social movements) has had a rather mixed record, but it has recently been put into focus by a substantial increase in politicization

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(especially since about 2000) as well as by both the PAD (People’s Alliance for Democracy) and the UDD (United Front for Democracy Against Dictatorship).

The formal structures found in the Thai constitution result from contention between these forces, which interact and partly overlap, based largely on differing definitions of what the problems of Thai politics were, and constitutional solutions devised in other countries. With the overthrow of the popularly elected government of Thaksin Shinawatra in September 2006 – merely a months before scheduled fresh elections – the second (military) and the third (ammart) group joined hands in order to impose new rules of the game on the fourth group (the politicians), who was deliberately excluded from the constitution-drafting process. As CDC member Krirkkiat Phipatseritham4 self-confidently stated, “We are the ones who draft the rules. They [the politicians] are those who play [politics]. We do not draft the rules to please those who play [politics]. We draft the rules according to what should be.”5 To this purpose, a constitution-drafting assembly (CDA) and a constitution-drafting committee (CDC) were established, the latter filled with members of Bangkok’s well-connected legal, bureaucratic, and academic establishment.6

4 Krirkkiat Phipatseritham is a retired civil servant. He used to be a full professor in economics at Thammasat University, and a member of the first post-1997 National Counter Corruption Commission. He already participated in constitution drafting exercises in 1991 (after the NPKC coup), and 1997. This indicates how well connected Krirkkiat has been in the Bangkok establishment, and how senior he is. 5 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๒๖ วนอั ังคารท ี่ ๑๐ เมษายน ๒๕๕๐, p. 6. Note the “them and us,” “friend and foe,” “black and white” construction, including the implication that the people categorized as “us” somehow possessed superior knowledge of what “should” be (the constitutionally true normative political standpoint), while “them” apparently failed to realize the truth of the “true navigators’” position. One might also ask what it was that gave Krirkkiat this elevated sense of impor- tance and non-democratic decision-making power over politicians. In this respect, one might have to refer to the worldview of a Thai bureaucrat of his generation, which is probably firmly rooted in the “bureaucratic polity” (Riggs) of old. 6 The interim constitution, drafted mainly by a long-standing key member of the ammart (Meechai Ruchuphan), envisaged a rather complicated process for determining who should sit on the CDC. Nev- ertheless, the outcome was rather predictable. As Ploy Suebvises noted, “Fifteen of the 35 members were high-level legal bureaucrats and judges, supplemented by four lecturers of law. In addition, there were four more bureaucrats and four more lecturers from a variety of fields. There was only one politi- cal scientist among these academics. The remaining members comprised one technocrat, one journalist, and one member of the private sector, one soldier, and a women’s rights activist (only three women were selected to serve on the CDC)” (Ploy Suebvises (forthcoming), “The Making of the 2007 Thai Constitution: Redesigning the Election System”, NIDA Case Study Journal.

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Obviously, having one or two social groupings unilaterally impose rules on a third group (and implicitly on the people, that is the fifth group), which will then have to act the rules out, poses the core problem of acceptance by that latter group. This structural situation is not new. More than 25 years ago, Chai-anan Samudavanija wrote, “The tensions evident since 1973 are the result of a conflict between two alternative bases of legitimacy: one emanating from traditional hierarchical traditions, the other based on popular sovereignty.”7 Today, Thailand faces much the same problem. Political scientist Panitan Wattanayakorn stated in an interview, “You have to understand that the political powers are now shifting from the so-called aristocracy [or bureaucracy, that is, ammart] to electoral politics, which has been active at all levels, from rural administrative organizations up to the national level. This power shift has had a huge impact and has led to attempts to resist it. This is going to continue for years.”8 A Buddhist activist put it this way, “Our society is like a tree that keeps growing bigger and bigger in a small pot. The social and political structures have not changed much in the past century. But society has changed drastically. If the structures won’t adapt, the pot is bound to break.” 9 From this perspective, it is understandable that many politicians and citizens do not accord legitimacy to the 2007 constitution, even more since the referendum process was heavily flawed. 10 Consequently, much of Thai politics since the elections of December 2007 have revolved around a struggle to amend or replace this controversial document produced by the CDC and the CDA.

In the following, I will concentrate on one important component of the 2007 constitution – the electoral system for the House of Representatives, especially the most interesting part, namely the suggestion to adopt a mixed-member system based

7 Chai-anan Samudavanija (1982) The Thai Young Turks, Singapore: ISEAS. 8 The Nation, 7 May 2008. Panitan (currently a deputy secretary-general to Prime Minister Abhisit Ve- jjajiva) recently referred to an emerging “fourth pillar [in addition to the three pillars of Nation, Relig- ion, and Monarchy]: a new democratic society, a new kind of politics – in a way, a fourth pillar leaning towards liberalism. The emerging fourth pole – democratic and liberal society – is a very powerful one, and ... seems like it is challenging the existing three poles”, The Straits Times, 4 September 2009. The article by Nirmal Gosh is headlined, “Seismic shifts challenge Thai elites to compromise.” 9 Bangkok Post, 24 September 2009. 10 See Michael H. Nelson, in preparation, “Thailand’s Democracy Restored? The Constitution Referen- dum and the Election of 2007, and 2008”, Constitution Referendum in Thailand: Observations from Chachoengsao Province, KPI Thai Politics Up-date No. 4, 6 February 2008).

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on proportional representation. However, it might be useful first to provide some context regarding basic options in the design of electoral systems.

Electoral Systems: A Very Brief Overview Electoral systems normally are divided into two main pure types, namely plurality/majority and proportional.11 In the first type, voters cast one single ballot for a candidate who runs in their local constituency. In plurality systems, the candidate with the highest number of votes wins, irrespective of whether he or she has gained an absolute majority or not. This system is also called “first-passed-the-post” (FPTP). A typical case for such a system – usually employed in single-member constituencies (SMC) – is the lower house in the United Kingdom. Some other countries require that the winning candidate achieve an absolute majority and thus perform a run-off election, in which only the two candidates with the highest number of votes can run (France), or they integrate such a run-off into the first round of voting, called “alternative vote” (Australia).

In proportional election systems, voters cast their single ballot for candidate lists prepared by the political parties. Some countries feature national party lists (such as Israel, The Netherlands, and Slovakia), while the great majority employs some variant of regional or local lists (for example, Argentina, Finland, Spain, Denmark, or South Africa).

11 For a systematic treatment, see G. Bingham Powell (2000) Elections as Instruments of Democracy: Majoritarian and Proportional Visions, New Haven and London: Yale University Press. For overviews on the election systems outlined here, see the well known André Blais and Louis Massicotte (1996) “Electoral Systems”, in Comparing Democracies: Elections and Voting in Global Perspective, eds. Lawrence LeDuc, Richard G. Niemi, and Pippa Norris, pp. 49-81, Thousand Oakes, California: Sage. A slightly updated version of the same title appeared in Comparing Democracies 2 (2002) same edi- tors, pp. 40-69, London: Sage. More details are to be found in Andrew Reynolds, Ben Reilly, and An- drew Ellis (2005) Electoral System Design: The New International IDEA Handbook, Stockholm, Swe- den: International Institute for Democracy and Electoral Assistance. A standard work on electoral sys- tems in German is Dieter Nohlen (2007) Wahlrecht und Parteiensystem: Zur Theorie und Empirie der Wahlsysteme. 5., überarbeitete und erweiterte Auflage. Opladen and Farmington Hills: Verlag Barbara Budrich. For a systematic treatment of electoral change and system choice, comprising a systematic introduction and many country studies, see Josep M. Colomer (ed.) (2004), Handbook of Electoral Sys- tem Choice, Houndsmills: Palgrave Macmillan.

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Some countries combine these two pure election models into mixed systems, thereby creating a third major variant.12 This, in turn, takes two major forms, the mixed- member majoritarian (MMM) and the mixed-member proportional (MMP) systems. The MMM system emphasizes the majoritarian/plurality element by using the two different systems separately for different sets of MPs, and by setting the number of plurality constituency MPs considerably higher than that of party-list MPs. It is therefore often described as a “segmented” or “parallel” system. Typical examples in Asia are Japan, South Korea, and Taiwan.

The MMP system, on the other hand, emphasizes the proportional component. Although there are also two kinds of MPs, the overall distribution of seats in parliament solely depends on how many votes the political parties received on their party lists. The MPs elected in local constituencies merely add a personalized element to this system. The total number of MPs a party can claim in parliament depends on its overall share of votes, making the number of a party’s seats proportional to its voter share. If a party’s number of constituency MPs does not reach its proportional claim, the number is filled up from the party list. Therefore, this system is also called “compensatory” or “corrective”. Typical examples are Germany and New Zealand (which essentially copied the German system and first applied it in 1996).

According to statistics presented in the IDEA’s (Institute for Democracy and Electoral Assistance) handbook on Electoral System Design, of the 199 countries covered, 91 had a plurality/majority election system, 72 had a proportional election system, 30 countries had mixed systems, and six had other systems. Of the 30 countries with mixed systems, 21 featured parallel systems (MMM), while nine had adopted MMP.13 As for recent electoral change, the handbook notes:

12 Such mixed-member systems have gained increasing attention; see Matthew Soberg Shugart and Martin P. Wattenberg (eds) (2001) Mixed-Member Electoral Systems: The Best of Both Worlds? Ox- ford: Oxford University Press. 13 For the figures, see the chart in Reynolds, Reilly, and Ellis (2005: 32). CDC member Pakorn Priyakorn (at that time a lecturer of public administration at the National Institute of Development Administration, now retired but still active in teaching) had presented these IDEA statistics without, however, mentioning their source (see รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ญู ครั้งที่ ๒๖, p. 12). Just before Pakorn presented the IDEA statistics, Nakharin Mektrairat (dean of the faculty of political science at Thammsat University), in supporting a modified 1997 party-list system, had claimed, “Election systems with only constituencies [plurality/majority systems] … have declined. Nobody uses them any

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As Table 1 shows, the trend is rather clear. Most countries [of 27] that have changed electoral systems have done so in the direction of more proportionality, either by adding a PR element to a plurality system (making it a parallel or MMP system) or by completely replacing their old system with List PR. The most common switch has been from a plurality/majority system to a mixed system, and there is not one example of a change in the opposite direction.14

Locating Thailand in this overall scheme of electoral systems is now easy. “Table 1” mentioned in the quote lists Thailand as a country that had moved (since the adoption of the 1997 constitution) from a plurality/majority system (multi-member constituencies, or bloc vote) to a mixed “parallel” system (or MMM). Thailand had thus joined 20 other countries, among them, as mentioned above, Japan, South Korea, and Taiwan. The 1997 constitution had thus introduced a segregated or parallel election system (mixed-member majoritarian, or MMM) with 400 MPs elected in single-member constituencies (SMC), complemented by 100 MPs elected in nationwide closed and blocked party lists. This included a threshold of five percent. That is, only those political parties that received at least five percent of the total vote would receive a share of the 100 party-list MPs.

The Election System in Drafting the 2007 Constitution15 The CDC held its first meeting on 25 January 2007. It established three sub- committees (called krop, or “frame”)16 tasked with working on certain subject areas. The first one dealt with rights, freedoms, and local government and was chaired by Wicha Mahakhun. The second concerned political institutions, political parties, the House, the Senate, and elections. This sub-committee was chaired by Charan Phakdithanakun.17 Finally, there was the krop on access to politics, the courts, and on independent constitutional organizations, chaired by medical doctor Chuchai Suphawong.18

longer. In the United Kingdom, it has been abolished already. Thus if we want only the constituency system, I think that this is not in harmony with the modern world. It is also not democratic” (p. 10). 14 The quote is on page 23 of Reynolds, Reilly, and Ellis (2005), while the table follows on page 24. 15 Note that my data collection is not yet complete. 16 กรอบ in Thai. 17 During his time on the CDC, Charan was permanent secretary of the ministry of justice. He was later appointed to the Constitutional Court. 18 Chuchai used to be secretary general of the National Human Rights Commission, before a conflict with the NHRC’s chairperson, Saneh Chamarik, cost him his job. During the CDC, Chuchai served as a high ranking advisor to the office of the NHRC.

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Early on in the drafting of the constitution by the CDC, some wanted to do away with the party lists. At the ninth CDC meeting on 15 February 2007, Charan reported on the deliberations of his sub-committee.19 According to this report, the number of MPs should be reduced from 500 to 400. All of them should be elected in multi-member constituencies; the party-lists would be abolished. They were seen as problematic, because they gave too much power to party leaders and their executive boards. Moreover, rather than following the intentions of the 1997 constitution to put knowledgeable and capable people from various fields on the party lists, parties had allegedly stacked them with their financiers. However, some members of the sub- committee had defended the party lists as useful. Yet, there should not be one single national party list but a number of regional lists.

Thus, at this point there were two main proposals. One represented a return to the pre- 1997 election system, while the other wanted a modified version of the 1997 model. However, six weeks later, in the CDC’s eighteenth meeting on 28 March 2007, Krirkkiat Phipatseritham suddenly 20 proposed the introduction of a proportional compensatory system, meaning a switch from MMM to MMP, based on the German model.21 He suggested what he henceforth would stick to a House consisting of 400 MPs, 200 elected in single-member constituencies and 200 elected from party lists. The number of seats a party could claim in the House would be proportional to its party-list votes: “The number of MPs a political party receives is according to the number of votes cast for it. Every vote cast by the people counts [mi khwammai].” A political party that received 40 percent of the vote could thus claim 160 seats in the House. If it won only 120 constituency MPs, the remaining 20 seats would be filled from the party list.

A few days later, in its twentieth meeting on 3 April 2007, the CDC worked on the preparation of the first draft constitution that was to be put to public hearings. There were two main models – 400 constituency MPs (without any party list element), and

19 รายงานการประชุมคณะกรรมาธิการยกรางรัฐธรรมนูญ สภารางร ฐธรรมนั ูญ ครั้งที่ ๙ วนพฤหั ัสบดีที่ ๑๕ กุมภาพันธ ๒๕๕๐, p. 14ff. 20 There seem to have been some talk on the proportional system at an informal CDC meeting at Cha- am, from March 5-10, 2007. However, I have so far not tried to locate minutes of this meeting. 21 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๑๘ วนพฤหั ัสบดีท ี่ ๒๘ มีนาคม ๒๕๕๐, p. 49.

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480 MPs, comprising 400 constituency MPs and 80 party-list MPs. Krirkkiat also gave his version of a proportional model:

I would like to ask permission of the meeting to propose the idea to establish a completely new proportional election system. The 400 MPs would be divided into 200 constituency MPs and 200 MPs according to proportion. This system will completely change the face of the election system.22

At this point, then, there were three models. At the same meeting, Pisit Leeahtam23 summarized this situation by pointing out (on p. 75) that, at the beginning, the krop had wanted only 400 MPs, without party lists. There had been little discussion in the sub-committee, because this decision had been made already. However, in their meeting at Cha-am, about ten CDC members had insisted on keeping the party list MPs, which had led to the drafting of article 90/1 (I assume 400 constituency MPs and 80 regional party list MPs). Finally, Krirkkiat had proposed a proportional system modelled after that of Germany.

The next step in this struggle about Thailand’s next electoral system came in a series of six meetings (nos. 22 to 27) held between 6 April and 11 April 2007, at Bang Saen in order finally to decide on the content of the draft constitution. The 26th meeting on 10 April commenced with Krirkkiat again describing the proportional system. Others, like Charan, Wicha, Chuchai, and Khomsan Pokhong24 also spoke in favor of this approach, though they differed in some detail. On the other hand, Nakharin Mektrairat, Phairote Phromsan,25 and Wuthisarn Tanjai26 were critical. All of these members could be categorized as ammart. However, this did not mean that they

22 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๒๐ วนอั ังคารท ี่ ๓ เมษายน ๒๕๕๐, p. 64. 23 Pisit used to be the spokesperson of the National Bank of Thailand. He served as deputy finance min- ister in the second Chuan government. Currently, he is the dean of the faculty of economics, Chiang Mai University, besides sitting on a number of academic committees. Pisit’s doctoral dissertation at Erasmus Universiteit Rotterdam was published as From Crisis to Double Digit Growth. Thailand's Economic Adjustment in the 1980s, Bangkok: Dokya Publishing House, 1991. He is also the president of the Netherlands-Thai chamber of commerce. 24 Khomsan used to work for the Election Commission of Thailand immediately after it had been established. At the time of the CDC, he is a lecturer in the faculty of law at Sukhothai Thammathirat University. He was one of the more junior members on the CDC. 25 Phairote is a retired civil servant. He used to be provincial governor, director general of the community development department and deputy permanent secretary of the Ministry of the Interior 26. Wuthisarn used to be a lecturer at the faculty of social administration of Thammasat University. At the time of the CDC, he was a deputy secretary general of the King Prajadhipok’s Institute (KPI), whose college of local government development he had previously directed. He has been a long stand- ing and instrumental member of the decentralization committee since its inception.

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always shared the same opinion. Thus, in the context of debating the election system, one can distinguish “reformers” and “conservatives”.27 Before it came to the vote, the chairperson of the meeting stated,

I want the principle first. In principle, we all agree that we will have the proportional election system instead of the Party list [in English]. We do not want the Party list [in English]. We all agree with this. Only the numbers [of MPs] are still open.28

He added that they did not need a vote on this issue, because the majority already was in favor of proportional voting. The word “instead” in the quote is interesting, because what they voted for afterwards was indeed a modified party-list system merely re- labelled “proportional”. It kept intact the mixed-member majoritarian system (MMM) of the 1997 constitution, which fundamentally differed from Krirkkiat’s proposal of a mixed-member proportional system (MMP). In fact, what was open was not the numbers of MPs, but a fundamental decision about the country’s future election system. As it turned out, 21 CDC members voted for a 320 to 80 split of constituency and party-list MPs with the latter coming from regional lists. Only nine members were in favor of Krirkkiat’s 200-to-200 model, which stood for MMP. The chairperson summarized the decision with the words,

This means 320/80 has 21 votes, while 200/200 has nine votes. Therefore, the meeting resolves that there will be 320 [MPs] in the constituency elections and 80 in the proportional [election]. I think that we can talk about the details later.29

This summary sounded rather like the 1997-style segmented or parallel system than the proportional one proposed by Krirkkiat. Moreover, the fundamental decision

27 The secretary of the CDC, Somkhit Lertpaithoon, also belonged to the conservative camp. However, as the secretary he did not participate in the debates. His position became clear only in the CDA meet- ing that deliberated and decided the issue. See สํานักรายงานการประชุมและชวเลข สานํ ักงานเลขาธิการสภาผแทนราษฎรู . รายงาน การประชุมสภารางรัฐธรรมนูญ วันพฤหัสบดที ี่ ๒๑ เดอนมื ิถนายนุ พุทธศักราช ๒๕๕๐ ครั้งที่ ๒๙/๒๕๕๐ เปนพิเศษ, passim. Somkhit is dean of the faculty of law at Thammasat University, and a deputy rector. He was the deputy secretary of the CDC in 1997, and has long been involved in the legal politics of the House of Representatives, mostly in the Democrat’s camp. He also has been a member of the decentralization committee from its incep- tion (after he had helped drafting the decentralization act). Somkhit belongs to a close-knit academic- political clique led by CDA chairperson Noranit Setabutr, a retired lecturer at the faculty of political science of Thammasat University, its former rector, and former secretary general of the King Prajadhi- pok’s Institute. Nakharin also belongs to this phuak. 28 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๒๖ วนอั ังคารท ี่ ๑๐ เมษายน ๒๕๕, p. 18. 29 This quote, the vote, and the following reference to Krirkkiat are on p. 19.

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between these two systems certainly could not be described as a “detail” to be dealt with at a later point, all the more since the proportional approach would run into calculation problems if the number of MPs was fixed at 320/80, as Krirkkiat had pointed out just before the vote was called. Thus, logically, the system should have been decided first, with a search for the most appropriate relationship between constituency and proportional MPs coming afterwards.

Consequently, the draft constitution published on 26 April 2007 for the public-hearing process30 in Article 91 provided for a House of Representatives comprising 400 MPs. Article 92 divided these 400 MPs into 320 MPs elected in multi-member districts. In principle, this should be three MPs, representing a return to the pre-1997 system. In addition, there should be 80 “proportional MPs” (“proportional” merely replacing the expression “party list” from the 1997 constitution) elected in four electoral zones with roughly the same population numbers. Each zone would thus have 20 MPs. They would be allocated proportionally to political parties according to the number of votes they had received in the respective zone.31 The CDC offered a number of reasons for their changes to the 1997 constitution, as required by the interim charter. Unfortunately, almost all of these were invalid so that, in fact, they could not support the draft stipulations. Since I have analyzed the reasons elsewhere, I will not repeat the issues here.32

However, this first draft of the 2007 constitution was merely an interim result. A new round of discussions followed after the hearing results had come in. In the CDC’s 38th meeting on 6 June 2007, seven groups of CDA members who intended to present motions for amendments to the CDC’s draft outlined their proposals. For example, Chermsak Pinthong33 spoke in support of the proportional election system, while the

30 For an analysis of a series of hearings, see Michael H. Nelson. 2007. “Public Hearings on Thailand’s Draft Constitution: Impressions from Chachoengsao Province”, KPI Thai Politics Update, No. 3, 14 August 2007. 31 คณะกรรมาธิการยกรางรัฐธรรมนูญ สภารางร ฐธรรมนั ูญ สํานักกรรมาธิการ ๓ สํานักงานเลขาธิการสภาผูแทนราษฎร. สาระสําคัญของรางรฐธรรมนั ูญฉบับ ใหม พรอมตารางเปรียบเทียบกับรัฐธรรมนูญฯ พทธศุ ักราช ๒๕๔๐ ฉบับรับฟงความคิดเหน็ , 26 April 2007, p. 58f. 32 For details, see Michael H. Nelson (2008) “A Proportional Election System for Thailand?”, in การเมือง การปกครองไทย 2550: Thai Politics Forum 2007, pp. 21-43. นนทบุรี: สถาบนพระปกเกลั า , and Michael H. Nelson (forthcoming) “Thailand’s Democracy Restored? The Constitution Referendum and the Election of 2007”. 33 For details, see Michael H. Nelson (2008) “A Proportional Election System for Thailand?” In การเมือง การปกครองไทย 2550: Thai Politics Forum 2007, pp. 21-43. นนทบุรี: สถาบนพระปกเกลั า , and Michael H. Nelson

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two camps in the CDC reiterated their respective positions.34 One day later, at its 39th meeting, the CDC briefly discussed the issues again, this time without the presence of CDA members, in order finally to determine its position ahead of the debate of the draft in the CDA. The proposal to introduce a proportional election system (MMP) was narrowly defeated by 15 against 12 votes.35

The next step was the joint deliberations between CDA and CDC that involved taking votes on contentious issues. This took place at the special 29th meeting of the CDA on 21 June 2007.36 Members first resolved by 48 votes to 28 that MPs should not be elected in single- but in multi-member constituencies.37 Afterwards, they opted, in a 50 to 32 vote, for 400 constituency MPs and 80 party-list MPs (the majority position in the CDC was 320 to 80). There was no vote on the increase from the originally envisaged four electoral zones for party-list MPs to eight zones, because there were no dissenting voices.38 Finally, the meeting rejected the “reformers’” proposal of a mixed-member proportional system (MMP) in favor of the modified 1997 model of a mixed-member majoritarian system (MMM). The vote was rather close, with 45 members in favor of MMM, 39 in favor of MMP, two abstentions, and one no-vote.39

As a result, as far as the proportional or party-list element is concerned, the 2007 Thai constitution re-adopted the election system of the 1997 constitution with only slight modifications, primarily the replacement of national party lists by eight regional lists, the reduction of 100 party-list MPs to 80, and the elimination of the five-percent threshold. The usual question in electoral system research then is what difference in terms of the composition of parliament and the formation of government the introduction of a proportional election system would have made to the result of the 2007 election. Table 1 shows the initial result of this election.

(forthcoming), “Thailand’s Democracy Restored? The Constitution Referendum and the Election of 2007”. 34 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๓๘ วนพั ุธที่ ๖ มิถุนายน ๒๕๕, pp. 76ff. 35 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ สภารางรัฐธรรมนูญ ครั้งที่ ๓๙ วนพฤหั ัสบดีท ี่ ๗ มิถนายนุ ๒๕๕๐, pp. 87-111; the vote is on p. 111. 36 สํานักรายงานการประชุมและชวเลข สํานักงานเลขาธิการสภาผูแทนราษฎร. รายงานการประชุมสภารางร ัฐธรรมนญู วันพฤหัสบดีที่ ๒๑ เดือนมิถนายนุ พุทธศักราช ๒๕๕๐ ครั้งที่ ๒๙/๒๕๕๐ เปนพิเศษ. 37 P. 182f. 38 P. 186. 39 P. 249.

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Table 1: Initial 2007 Election Results (Number of Seats by Party and Region)

BKK Central North NE South Regions Party MPs Total Lists Total People’s Power 9 39 47 102 2 199 34 233 Democrat 27 35 16 5 49 132 33 165 Chart Thai -- 18 6 7 2 33 4 37 Phuea Phaendin -- 1 1 12 3 17 7 24 Ruam Jai Chart -- -- 2 6 -- 8 1 9 Pattana Matchima- -- 2 2 3 -- 7 -- 7 thipattai Phracharaj -- 3 1 -- -- 4 1 5 TOTAL 36 98 75 135 56 400 80 480

Sources: Krungthep Thurakit (December 25, 2007); Matichon (December 26, 2007); “Praden thalaeng khao wan thi 35 thanwakhom 2550 wela 13.30 no” [Press release December 25, 2007, 13:30 hours]. Bangkok: ECT.

Given Prime Minister Thaksin Shinawatra’s convincing (though controversial) performance in government, and mergers with smaller parties since his first win in 2001, the 2005 elections saw his (Thai Rak Thai) TRT win far more party-list votes than the Democrats – 18,993,073 (61.17 percent) to a mere 7,210,742 (23.23 percent). This clearly demonstrated the huge gap in popularity between TRT and the Democrats. However, the military coup of September 2006, the dissolution of the TRT, and all the ensuing political turmoil handed the Democrats an opportunity to change this state of affairs. And indeed, the 2007 elections saw a much different result. Now, the People’s Power Party (PPP) (12,338,903 votes, or 41.1 percent) was only very slightly ahead of the Democrats on the party-list ballot (12,148,504 votes, or 40.4 percent). However, this close result in terms of party-list votes could not be expressed in the number of seats each party received, because the biggest amount of seats (400) was still allocated via constituency contests, while only 80 were distributed to the parties based on their shares of the total party-list votes. As a result, the PPP did not receive the proportional 205 House seats but 233 seats (28 more than their proportional claim), while the Democrats received only 165 seats instead of the proportional 202 (37 less than the party’s proportional claim). Table 2 shows a detailed recalculation of the 2007 result based on the application of a proportional election system.

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Table 2: Recalculation of the 2007 Election Result Based on Proportional Representation

Full seats 4 Total Const. Fill- Gain/ with seats PR seats seats up House Loss remainder (476 seats) claim won from MPs 2007 PL People Power 204.94091 +1 205 199 + 6 205 - 28 Democrat 201.74297 +1 202 132 + 70 202 + 37 Phuea Paendin 26.57580 +1 27 17 + 10 27 + 3 Chart Thai 20.16095 20 33 0 33 - 4 Ruam Jai Thai 12.30688 12 8 + 4 12 +3 Matchimathipattai 7.47851 7 7 0 7 0 Pracharaj 6.79399 +1 7 4 + 3 7 + 2 Total number of MPs (13 surplus seats CTP) 493

Conditions for the recalculation of MP shares: 480 House seats and national-level party (proportional) lists; five percent (share of the total party list votes) and three-seat (number of constituency MPs won) thresholds; formula: Hare quota and the largest remainder (total number of House seats multiplied with the party-list result for the party divided by the total number of party-list votes after the deduction of invalid ballots, no-vote ballots, and parties below the threshold).

Given the actual result of the 2007 election, it was very unlikely that the desire of the coup plotters’ and their associates for a Democrat-led coalition government could have been realized. With a proportional system in place, however, it would have been highly possible that the Democrats could have formed a coalition government with at least the Phuea Phaendin and Chart Thai Parties, giving them a solid parliamentary majority of 262 seats. This example amply demonstrates that electoral systems can indeed make a big difference concerning the question of who can govern a country after an election. In the absence of the proportional option in Thailand, it took the dissolution of the PPP, the infamous occupations of Government House and Suvarnabhumi Airport by the People’s Alliance for Democracy (PAD), and the exertion of military influence to cobble together in December 2008 what had been aimed for from the beginning – a Democrat-led government with Abhisit Vejjajiva as the prime minister. Yet, this also meant that Abhisit had to rely on active help by politicians who the Constitutional Tribunal/Court had earlier disqualified from any involvement in politics for five years, thereby openly defying the court’s verdict.

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So far, I have dealt with the “event history” of drafting the election system contained in the 2007 constitution, including the people involved, and its electoral and political consequences. In the next section, I will turn to a number of arguments CDC members used in their deliberations in favor or against the introduction of a proportional voting system.

Debating Issues Concerning the Proportional Voting System The records of the 1997 CDA and CDC, and their successors in 2007 provide unique insights into mainly elite thinking about the desirable shape of Thailand’s political- constitutional order – as mediated by very different political context conditions and problem definitions. Under normal political circumstances, individuals might write newspaper columns or books about what they think is wrong with Thai politics, how it should develop, and what had to be done to reach this goal. A much different situation exists when a group of people come together under high time pressure to write a constitution that will actually be applied. The result is a concentrated body of political semantics on all issues of constitutional significance that provides researchers with a rich and complex source of data, that the researcher has had no hand in (unlike questionnaires, qualitative interviews, focus groups, and even participant observation). 40 The research that this paper is based on deals with only a small segment of the entire material, namely issues regarding the Senate and the House. In this section, I will discuss issues raised in the context of proposals to change the electoral system from MMM to MMP.

Preventing “Parliamentary Dictatorship” This polemic descriptor was used normatively to exaggerate the great majority of seats that Thaksin’s TRT had won in the 2005 election. The party’s 377 seats in the House meant that TRT could govern without coalition partners, and that the opposition could not muster the 200 MPs necessary to initiate a no-confidence motion against the prime minister in the House. Yet, in most countries, the TRT’s majority would have been seen as securing a stable government in a parliamentary system (and

40 The 2007 exercise has generated word-by-word transcripts of 62 CDC meetings (for unclear reasons, the records of 15 meetings have not been included in the set of eight books given as a memento to CDC members) and 43 CDA meetings.

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indeed, this TRT government was the first elected government in Thailand that could finish its term of four years). Khomsan Pokhong mentioned that the TRT government had become “too strong” but that previous governments had been “too weak” and that they needed to keep both problems in mind when designing the new election system.41 Krirkkiat Phipatseritham described the problem in the following way, and he also offered a solution.

If we use the proportional system, it will lead to a system of political power balance. No single party will be able to have decisive power and [create] a parliamentary dictatorship.42

Irrespective of the Thai flavour of this statement, it also reflects a well-known principal dichotomy of majoritarian versus proportional visions of electoral systems, in which “the majoritarian vision implies government domination, while its proportional counterpart implies participation in policy making by authorized representatives.”43 Majoritarian governments are supposed to present a clear vision of responsibility and subsequent electoral choice, while governments coming from proportional voting are assumed to produce policy decisions in coalition negotiations in which political responsibility might be difficult to locate.

Nevertheless, there are two problems with the Thai version presented by Krirkkiat. First, a proportional system does not guarantee the existence of coalition governments. As I have demonstrated in an earlier paper, even various versions of proportional recalculations of the 2005 election would have retained TRT’s majority at 336, 320, or 306 seats in the House, depending on the method of calculation.44 Moreover, the election system is merely one variable in establishing governments, while a country’s political situation at any given point and the various elements of her political structures (including the political party system) have to be factored in when trying to assess the probable outcome of changing the election system. Indeed,

41 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๙, p. 40. 42 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๖, p. 5. 43 Powell (2000: 14), (fn. 11). 44 Nelson (2008) “A Proportional Election System for Thailand?” (fn. 32).

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Phairote asked the proponents of MMP whether they could say what its effects would be, and whether they agreed with them or not.45

Second, the expression “parliamentary dictatorship” is not merely an exaggerated and polemic descriptor for “stable government”. Rather, it reflects that the third (ammart) and second groups (military) mentioned in the introduction have had serious problems accepting the basic electoral rule of the democratic game, which is that both the military and the civil bureaucracy, including all their hangers-on, are subordinated to the orders of politicians elected by the people.46 Obviously, this approach is difficult to grasp for groups who have been used to yielding sole power for so many decades,47 and who do not see elected politicians as an improvement of the country’s political system, but rather as unwelcome, incompetent, corrupt, and vote-buying competitors.

As far as I can see, the expression “parliamentary dictatorship” was initially used to attack the first “fully elected” government after 1976, and after the semi-authoritarian Prem Tinsulanonda years of 1980 to 1988. Given the thrust of MMP proponents, it is ironic that the Chartchai Choonhavan government was indeed a coalition and precisely not a TRT-style one-party government. Yet, it was deemed “too strong”. One of the “reasons” used by the NPKC (National Peace Keeping Council) coup plotters for toppling the Chartchai government in 1991, then, was “parliamentary dictatorship” (even more revealing was “bullying of civil servants’). The same accusation also figured as one of the eight major problems Prawase Wasi suggested “political reform” needed to tackle.48

In sum, “parliamentary dictatorship” is nothing electoral change can solve, because it does not signify an undisputed empirical phenomenon but rather reflects elements of the pre-democratic political culture of two socio-political groups who are destined to

45 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๖, p. 13. Since New Zealand was mentioned many times in the CDC minutes, Thai readers might wish to consult Jack Vowles, Susan A. Banducci, and Jeffrey A. Karpf (2006) “Forecasting and Evaluating the Consequences of Electoral Change in New Zealand”. Acta Politica, 41:267-284. 46 For a recent text on the role of the military in Thai politics, see Paul Chambers (2009) U-Turn to the Past? The Resurgence of the Military in Contemporary Thai Politics” (manuscript). 47 The standard work in this respect is Fred W. Riggs. 1966. Thailand: The Modernization of a Bureau- cratic Polity, Honolulu, Hawaii: East-West Center Press. 48 ประเวศ วะสี (1994), การปฏิรูปทางการเมือง: ทางออกของประเทศไทย. กรุงเทพฯ: สํานักพิมพหมอชาวบาน .

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lose power, and will be subjected to enhanced performance requirements in an electoral democracy.

Creating Proportionality Generally, demands for proportionality express the idea that the number of seats that political parties receive in parliament should as closely as possible reflect their shares of the total number of votes. Put another way, every voter should have the same direct influence in determining the overall composition of parliament. In Thailand, this issue had not been relevant for many decades. Political parties as institutionalized units reliably structuring repeated political contests did not exist. Moreover, when elections were held, they proceeded according to plurality rules in multi-member districts, meaning that electoral emphasis was placed on individual local candidates, and not on the preferences of voters for political parties.

This situation changed with the election system introduced by the 1997 constitution, because the party-list vote clearly reflected the preferences voters had for TRT, the Democrats, or Chart Thai. Krirkkiat pointed out that the 1997 system had made big parties even bigger. Although they had received many constituency MPs already, the separate or parallel party list would give them even more advantage by increasing their number of MPs from the 100 party-list seats according to their vote shares. This way, TRT in the elections of 2005 had an overall vote share of only 51 percent, while the party’s share of the total number of MPs was 77.5 percent.49 Though the idea is correct, the figures are not accurate. The situation is shown in Table 3.

49 การประชุมคณะกรรมาธิการยกรางรัฐธรรมนญู ครั้งที่ ๒๐, p. 65f.

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Table 3: The Result of the 2005 Election (Actual and Proportionally Recalculated) PL votes % PL Const. PL Total % Propor- Difference million votes MP MP MP MP tional claim TRT 18,993,073 61.17 310 67 377 75.4 320 Minus 57 DEM 7,210,742 23.23 70 26 96 19.2 122 Plus 26 CTP 2,061,559 6.64 18 7 25 5.0 35 Plus 10 Mahachon 1,346,631 4.34 2 0 2 0.4 23 Plus 21 Others 1,436,218 4.63 0 0 0 0.0 0 0 Total 31,048,223 100 400 100 500 100 500

Source for the electoral figures: สํานักงานคณะกรรมการการเลือกตั้ง. 2548 [2005]. ขอมูล สถิติ และผลการเลือกตั้ง สมาชิกสภาผูแทนราษฎร พ.ศ. 2548. กรุงเทพฯ.

Note: For the inclusion of Mahachon, the threshold was set lower than 5%. None of the remaining 16 parties reached 1% of the party-list vote. The proportional seat claims exclude the 4.63 percent won by “Other” parties.

The Table shows that, while TRT gained 61.17 percent of the total valid votes (meaning that both invalid and no-votes have been subtracted), it was given 75.4 percent of the 500 MP seats. This is a positive difference of 14.23 percent. On the other hand, The Democrat party gained 23.23 percent of the vote, but only 19.2 percent of the number of seats in the House. This is a negative difference of 4.03 percent. Mahachon suffered the most with only 0.4 percent of the seats, although it had won 4.34 percent of the vote. A recalculation of the 2005 seat distribution (by including Mahachon, but excluding the 16 remaining tiny parties) shows that TRT received 57 seats more than it could claim according to its vote share, while the Democrats got 26 seats less than they should have had. The Chart Thai party would have gained 10 seats, and Mahachon would have gained an additional 21 MPs.

Krirkkiat thus concluded one of his statements by noting,

Therefore, if we want to see change in politics in a positive direction, then every vote must count. Every vote must have the potential of getting an MP. Political contests would thus become more just.50

This issue of electoral justice by having each vote count equally in determining the composition of parliament is important. However, it does not automatically invalidate

50 P. 67.

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the “majoritarian vision”, as can be seen from the great number of countries with such an electoral system. Often, specific circumstances must occur for countries to change their time-honoured electoral set-ups. In New Zealand, for example, the “catalyst for electoral system change was a succession of two elections in 1978 and 1981 in which the governing party was returned to power with fewer votes than the opposition.”51 In a democracy, however, the majority is supposed to rule, not the minority.

Increased proportionality would also improve the chances of smaller parties to be represented in parliament. Krirkkiat thought of academics and civil servants, or people in Thailand’s southern Muslim provinces. These groups, he said, might not be skilled in constituency-level campaigning, and thus would probably not win a single seat. However, if they only managed to gain two percent of the countrywide vote, they would get eight MPs (assuming a 400-seat House). They could thus participate in parliamentary politics.52 A potential “green” party was also variously mentioned in the records as a beneficiary of a proportional system. However, the most concrete beneficiary will be the newly established “New Politics Party” (NPP) of Sondhi Limthongul’s PAD.53 The NPP would have little hope of winning any constituency. However, its countrywide votes combined might well give them a number of proportional MPs. In Krikkkiat’s 400-seat House, a five-percent share of the vote would have given the NPP 20 MPs. With the present number of proportional MPs standing at only 80, five percent would earn the NPP merely four seats (the regional structure of the proportional seats is left out here). Thus, the incentive for groups of people to form a new political party is considerably higher in the suggested MMP model than it is in the constitutionally stipulated MMM system. In the latter, the hurdles for a serious new party to achieve a meaningful parliamentary representation are considerably higher.

Another issue in this context is whether or not a threshold should be applied, and how high it should be. “Threshold” denotes the minimum share of votes in percentage that a party must gain before it is included in the calculation of proportional seats, be it MMM or MMP. “Thresholds send a clear and frank message that marginal parties are

51 Vowles, Banducci, Karpf, p. 268. 52 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๐, p. 65. 53 See Michael H. Nelson (forthcoming), “The People’s Alliance for Democracy (PAD): From ‘New Politics’ to a ‘Real’ Political Party?” Chapter for a book edited for KPI by Marc Askew.

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not considered suitable players in the parliamentary arena.”54 It is a measure against the fragmentation of parliament and resultant problems of government formation and stability. The 1997 constitution had set it at five percent. As a result, unlike in my model calculation in Table 3 above that gave the Mahachon party 23 seats, in reality it had to be satisfied with its two constituency MPs, because its 4.34 percent were below five percent.

Charan Phakdithanakun agreed that MMP would make Thailand advance to a higher electoral level. However, he insisted that, if they opted for MMP, then the threshold would have to go. Proportionality should apply to all political parties. He also added a comparative reference by saying,

Do not use the German model [of a five percent threshold]! We should not adopt the German system, which wants to prevent small parties from entering [parliament]. … We need the principle that every vote counts.55

Nevertheless, he was indeed prepared to let a threshold pass, only a lower one. If a party received only 150,000 or 75,000 votes, he said, “They should not receive a single seat. This is too small.”56 In the 2005 election, this problem mainly concerned the Mahachon party. The remaining splinter parties altogether received only 4.63 percent, equal to a potential 23 seats out of 500, and none even made it to one percent of the total vote.57 These 23 seats would have been distributed among 12 parties. Charan’s 150,000 votes would have meant a threshold of 0.5 percent, while 75,000 would have meant a threshold of about 0.25 percent, affecting three or six parties, respectively. One might wonder whether adding three or six parties with a combined 13 or 17 seats would really make such a difference to the people’s effective representation in parliament.

Charan also raised the problem of “surplus mandates”. What would happen, he asked, if a party could proportionally claim 160 seats but had already won 170 constituency

54 Blais and Massicotte (2002:51), (see fn. 11). 55 รายงานการประชุมคณะกรรมาธิการยกรางรัฐธรรมนูญ ครั้งท ี่ ๒๖, p. 8f. 56รายงานการประชุมคณะกรรมาธิการยกรางรัฐธรรมนูญ ครั้งที่ ๒๖, p. 8. 57 In the 2007 election, only seven parties received at least 1.4 percent of the countrywide vote. The remaining 3.8 percent was divided amongst 24 splinter groups

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MPs?58 Nakharin added another element of this problem, namely that the number of MPs could not be fixed if the German model was to be adopted. Rather, in one election, there might be 400 MPs, while the next would see 408 or 410. “Thais are not used to this.” 59 As I have shown elsewhere, both related problems could indeed happen in Thailand60 but mainly because the 400 to 100 ratio of the 1997 constitution was very wide (assuming that this would have been used as an MMP system). Surplus mandates would be much less likely in the 200 to 200 ratio as proposed by Krirkkiat. In any case, even in Germany, this has been identified as a serious problem, because the number of surplus mandates has increased in the past three or four elections, reaching 21 seats for the biggest party in the most recent election of September 2009. Already in 2008, Germany’s Constitution Court thus ordered the government to amend the election system by the year 2011 in a way that will prevent this problem from reoccurring – since it is indeed preventable.61

Conflicting Notions of the Elected Representative Thailand has long been used to representatives (MPs) elected in local constituencies. It is thus not surprising to find that the prevailing image of an MP is that of a person who mainly takes care of voters in his or her locality, or is primarily concerned with problems in his or her constituency, such as roads, bridges, and irrigation canals. Moreover, the military, bureaucrats, technocrats, and their academic associates had long dominated political decision-making at the national level, including long periods of military dictatorship, authoritarianism, and semi-authoritarianism. Obviously, in a modern democratic system, this division of labor must give way to one in which elected representatives are willing and capable to determine policies and instruct the bureaucracy. Since 1988, this necessary transformation of a bureaucratic into a democratic polity has caused well-known political-administrative tensions between the military and ammart on the one hand side and politicians on the other. It also put pressure for considerable improvement regarding political parties and politicians (and on the quality of the voters’ decision-making), and generated considerable criticism of them. A foreign observer notes that elected politicians have been “distorting

58 รายงานการประชุมคณะกรรมาธิการยกรางรัฐธรรมนูญ ครั้งที่ ๒๖, p. 8. 59 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๖, p. 10. 60 Michael H. Nelson (2008) “A Proportional Election System for Thailand?” (fn. 32). 61 For details, see Joachim Behnke (2007) Das Wahlsystem der Bundesrepublik Deutschland: Logik, Technik und Praxis der Verhältniswahl, Baden-Baden: Nomos, pp. 182ff.

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parliament’s functioning and cabinet-level decision making.” 62 Certainly, this statement is based on curtain normative standards concerning the technical quality of parliamentary proceedings and governmental policy-making, derived both from the complex requirements of modern society, and traditional ideas of democratic responsiveness and accountability, as conceived in the West. However, it does not mean that the Thai military and ammart do not hold similar views, although they might originate from different sources of political culture.

Against this backdrop, one of the purposes of the party-list (PL) system introduced with the 1997 constitution was to separate nationally oriented leading MPs, from whom the cabinet members would be drawn, from a “rationalized” (meaning: reduced in influence) parliament dominated by locally oriented constituency MPs. When Charan Phakdithanakun delivered the first report of his sub-committee’s resolutions, they included the abolition of the party list. The House was supposed to comprise only 400 constituency MPs. It was argued that the PL system gave too much selection power to party leaders and their executive boards. In addition, they would use it to repay party financiers, instead of fulfilling the constitutional intention of recruiting knowledgeable and capable people from various fields. Khomsan Pokhong reiterated the first point adding that PL MPs did not turn out to be party representatives; they should be selected in party assemblies.63 As for the idea that financiers dominated PL candidates (a cherished prejudice by a number of CDC members), Khomsan pointed out that he had checked the lists and found out that this was not the case. Even on the TRT lists (the main target of this criticism), most people were (leading) politicians, former high-ranking bureaucrats, and former constituency MPs.64 Wuthisarn Tanjai thought that even if financiers on the party lists had been a problem, this could be solved by stipulating restricting conditions for the selection of party-list candidates.65 Indeed, this particular point of criticism against the PL did not reflect the facts, and could thus not logically be used to abolish it.

62 William F. Case (2007) “Democracy’s Quality and Breakdown: New Lessons from Thailand”, De- mocratization 14 (4): 622-42 (630). 63 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๙, p. 40. 64 P. 38. 65 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๙, p. 51f.

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That the majority on the CDC’s sub-committee was against keeping the party-list MPs did not necessarily mean that they favoured a return to purely localized MPs, although this idea was indeed present. For example, Wicha Mahakhun wanted all MPs to be elected in local constituencies. “If the MP does not know about these [local] things, including culture and customs, and his or her own roots, do not ever govern the country!”66 From this perspective, it seems that the policy-issues to be decided upon by the government and deliberated by the MPs in parliament are merely the sum of local problems. Members of parliament seem to have the task of representing local problems at the national level, rather than representing local people in the process of dealing with national-level problems. Moreover, many of these problems are defined in supra-national structures (and this expressly includes questions of how to design the country’s election system, as can easily be seen from the many references to foreign countries in the CDC records), which would make purely local MPs seem to be even less qualified for contemporary tasks of national political management. On the other hand, as Charan made clear, many members in fact envisaged a further nationalization of the elected representatives:

From the beginning, we have had the idea that we wanted the MPs to have their main task in the House of Representatives, that is, concern themselves with matters of law and the control of the executive. They should not get involved with the wellbeing [of the people] since this is the task of local government politicians.67

Sriracha Charoenphanit 68 mirrored this sentiment saying that MPs actually were merely legislators. Anything outside of passing laws was in neither the MPs powers nor duties. They did not have to visit their voters. Unfortunately, they had been doing little work in the legislature.69 Withaya Nganthawi70 shared Sriracha’s opinion. In his opinion, MPs should exclusively work as legislators. However they do many things outside this core duty, such as attending weddings and temple fairs. Visiting their

66 P. 54. 67 Matichon, 1May 2007. 68 Sriracha Charoenphanit was a retired lecturer of the faculty of law at Sukhothai Thammathirat Uni- versity, and secretary general of the office of the Parliamentary Ombudsmen. In addition, he was a committee member at the Council of State and at the National Research Council. This nicely reflects the ammart’s network nature. 69 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๙, p. 56. 70 Withaya was the president of the Rubber Tree Association of Thailand. He referred to himself as being from “up-country”.

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constituents should follow better-defined criteria (as part of a constitutionally stipulated job-description for MPs) so that they would receive useful information from their constituents, rather than handle this as patronage activity. Withaya admitted that if politicians did not attend the mentioned functions, this was seen (by the voters!) as “thing prachachon” (abandoning the people). This view was wrong, and it had the effect that people who were motivated for the genuine work as an MP could never be elected to this position.71

Withaya’s opinion reflected the widely held view in bureaucratic circles that the provinces were full of good and capable people longing to work as legislative representatives in Bangkok for their local people. Nastily, they were blocked by the incapable and vote-buying electocrats with their firm understanding of how politics in the localities worked, and what they had to do to satisfy the voters. People such as Withaya take exception with the way up-country Thai politics works, and they have an overly rosy view of the political competencies of up-country non-politicians. Somsak Pritsanananthakul, then deputy chairperson of the Chart Thai party put forth a more realistic view. He stated:

Those who say that attending ordinations, funerals, and weddings does not belong to the tasks of representatives show that they do not understand … that this is to meet the people and learn about the villagers’ problems in order to solve them … These [MPs] are what we call true representatives of the people.72

The critical statements about elected politicians culminated in Nurak Mapranit’s73 suggestion that the “occupation of the politician” should not any longer exist in Thailand. Rather, they should be volunteers with no more than two terms in office.74 Given that this speaker was a judge at the Supreme Court, one wonders how he would respond to the suggestion that judges should serve as volunteers and should not stay in office for more than eight years altogether. His remark prompted Pisit Leeahtam to

71 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๑๑, p. 36. 72 Krungthep Thurakit, 4 May 2007. 73 Nurak was a judge at the Supreme Court. He had been a classmate of General Winai Phattthiyakun, the secretary of the coup plotters, at the National Defense College. Maybe, this had earned him the ap- pointment to the coup-plotters’ “Constitutional Tribunal,” on which he duly served to dissolve the Thai Rak Thai party, and even supported the retroactive withdrawal of the voting rights of its former execu- tives (see กองบรรณาธิการ มตชนิ . 2550 (2007). ลางบางทรท. คําวนิ ิจฉัยยุบพรรค ฉบับสมบูรณ. กรงเทพฯุ : มติชน.). 74 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๑๑, p. 37.

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say that he recognized that “many” (probably referring to the Bangkok-based establishment) felt disgust and hatred towards politicians – a candid statement. Nevertheless, work as a politician did require considerable knowledge and capability. Therefore, the CDC should not turn this work into the “hobby” (in English) of a few capitalists.75 Pakorn Priyakorn also came to the help of the politicians. He did not want CDC members to look down on them and see them as a group of people who should not even exist nor condemn them wholly bad. In fact, only a few politicians had been responsible for the events that had caused “us” (CDC, the establishment) to have bad feelings against them. “We [CDC] use the word ‘electocrats’,” which misleadingly put them all into the same category.76 Yet, Sriracha Charoenphanit was not going to give up his self-assigned crusade, “Our [CDC] principle is that we want to clean up the House of [dishonest] politicians so that flawless politicians can enter parliament.”77

Others members on the CDC, however, adopted a more pragmatic approach and saw the connection between localized MPs and the requirements of the national executive in a modern state. Pisit Leeahtam extended his view mentioned in the preceding paragraph by pointing out that when MPs became ministers, they kept talking mainly about local issues. They hardly ever touched upon issues that were important for the country, and this reflected the way representatives were recruited. “Most of them must be interested mainly in and concerned about their localities.” Therefore, he supported party-list MPs with a national outlook. Furthermore, he counted on the voters for undergoing a learning process regarding these issues. 78 From this perspective, reducing Thai MPs to constituency MPs and then hope that they would concentrate on the national-level role assigned to them by members of the Bangkok establishment largely ignorant of the workings of provincial-level politics was unrealistic. Rather, a party-list segment of nationally oriented MPs was needed as a systematic corrective of local MPs’ policy and executive deficiencies.

In his argument for MMP, Krirkkiat added another democratic advantage of any party list (that is, including the 1997 version) as means of executive recruitment, namely its

75 P. 41. 76 P. 48. 77 P. 64. 78 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๙, p. 60.

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effect of increasing the transparency of electoral choice. Voters would be able to know beforehand whom a party intended to appoint to ministerial positions.79 From a normative perspective, voters should consider such information before making their choice, and electoral choices should be transparent. From a practical point of view, the more information voters have on important consequences of their choice, be it about policies or leadership positions, the more accurate their vote will be. Finally, although voters have long been blamed for being ignorant and susceptible to vote buying, we know from empirical experience that they do not only have local or constituency political preferences. Rather, the ordinary Thai voter’s total preference structure includes opinions regarding governing personnel, political leaders, policies, and past government performance.80 Making informed decisions requires voters have the necessary information about these issues. Eliminating party-list MPs would mean that voters would be denied the expression of their national-level preferences and push them back into their pre-1997 local electoral “prison”. The existence of party-list MPs, in combination with two ballots, substantially increases the people’s right to democratic political participation in determining their representatives. This was one reason why, for example, Wuthisarn Tanjai insisted on the two-ballot system.81

Pisit’s approach actually should have supported Krirkkiat’s proposal to reduce localized MPs to the number of 200, while increasing party-list MPs to 200, even without a change to the proportional system. Perhaps this would have gone against the view that political parties had no internal democracy in determining who would be put where on the party lists. Alternatively, such a step might simply have been too drastic a change for conservatively minded members of the CDC. As Wuthisarn remarked, “I think that one must change the behavior of the Thais gradually. Sudden and strong change will lead to confusion”– and such confusion was clearly visible throughout the

79 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๐, p. 65 80.For recent information on the provincial Thai voter, see Andrew Walker (2008) “The Rural Constitu- tion and the Everyday Politics of Elections in Northern Thailand”, Journal of Contemporary Asia, 38 (1): 84 -105; Marc Askew (2008) Performing Political Identity: The Democrat Party in Southern Thai- land, Chiang Mai: Silkworm Books; Yoshinori Nishizaki (2006), “The Domination of a Fussy Strong- man in Provincial Thailand: The Case of Banharn Silpa-archa in Suphanburi”, Journal of Southeast Asian Studies, 37 (2): 267-291; and Michael H. Nelson (2009) “The Election of 2007 in Thailand: Ob- servations from Chachoengsao Province”, KPI Thai Politics Update No. 5, 20 February 2009). 81 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๖, p. 17.

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CDC’s and the CDA’s deliberation.82 His view of the party list also differed from Pisit’s conception. Rather than emphasizing nationally oriented MPs, Wuthisarn thought that a regionally divided party list would enable experts from the regions to enter parliament. 83 Nakharin Mektrairat went even further by imagining that regionalized party-lists would allow local grassroots and NGO leaders, and people who were well known locally to enter the House. He wanted to give grass roots people a voice in parliament.84 This did not seem to be a very realistic expectation, and the change to regional party lists certainly did not turn out this way.

In sum, CDC members had rather different ideas about what roles they wanted the elected representatives of the people to play at the national level. Some wanted them to represent essentially local concerns to the national executive. Others wanted MPs to dissociate themselves from issues in their constituencies in order to concentrate instead on legislative work. Some wanted MPs merely to be temporary volunteers, implying that their level of political knowledge and professionalism would remain rather low (thus being no match for the military and the ammart). Others distinguished ordinary local constituency MPs from party-list MPs, who would comprise a comparatively highly qualified group of nationally oriented MPs to be recruited as potential members of the executive (a reflection of the intentions of the 1997 constitution). Finally, another conception also distinguished between constituency MPs and party-list MPs; but this version thought that regionalized party lists would add another regional or even more local “grassroots” and “non- governmental” category of MPs to the already localized constituency MPs.

Conclusion This paper has presented some initial information about election systems in general and the sequence of decision-making during Thailand’s 2007 constitution-drafting exercise. It has also pointed out that, had the drafters adopted MMP instead of the slightly revised MMM system of the 1997 constitution, the composition of parliament after the election of December 2007 would probably have been quite different with the possible result of a coalition government led by the Democrat party. The paper has

82 P. 17. Given this approach, however, how could one justify a reduction from 100 to 80 party-list MPs, and the switch from a national to eight regional party lists? 83 รายงานการประชุมคณะกรรมาธิการยกรางรฐธรรมนั ูญ ครั้งที่ ๒๖, p. 17. 84 P. 11.

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dealt with three substantive issues regarding Thailand’s election system, namely the introduction of a proportional system in order to prevent “parliamentary dictatorship”, the purpose of creating proportionality in an otherwise plurality/majority system, and contentious notions of the representative. Further work in the research project of which this paper is an interim result will include the presentation of more details about what has been said already, the inclusion of the Senate, and a comparison of the CDC and CDA debates of 1997 and 2007. Taken together, the final report will contain detailed data on how the Thai National Assembly was discursively constructed in the 1997 period of “political reform” and the coup period of 2007. It will thus provide vital information for any future debates about electoral reform in Thailand.

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