[Tlc] T-election article

[justinm at ucr.edu]

Forwarded from Albert Valentine.
Thanks,
justin


http://www.asiasentinel.com/index.php?option=com_content&task=view&id=1120&Itemid=31

Daniel Ten Kate   
27 March 2008
Election fraud casesthreaten to wide rifts between Thaksin's supporters andopponents

thai-coupJust when it lookedlike Thailand was ready to move past the two-year political crisisthat has sapped consumer and investor confidence, the battle betweenthe People Power Party and its enemies has started to heat up again.

Last week the ElectionCommission recommended the dissolution of the PPP, which is comprisedof allies of deposed Prime Minister Thaksin Shinawatra, as well astwo of its coalition partners for alleged election fraud committed byPPP executive and House Speaker Yongyuth Tiyapairat.

The cases could takemonths or years to drag through the courts, but already PPP has vowednot to accept a dissolution verdict. A year earlier the courtsdisbanded Thai Rak Thai, the party Thaksin founded and which is aprecursor to PPP. At that time Thaksin's loyalists went awaymeekly.

'I think we arenow beyond the petty legal interpretations,' said JakrapobPenkair, a PPP cabinet member who earlier staged protests against thegroup that staged the coup that ousted Thaksin in September 2006. 'Ifthe party will be dissolved again, we would see it as a struggle now.It's not only a legal conclusion, it is actually theundermining of democracy.'

The PPP-led governmentis now rushing to change the constitution and electoral laws writtenin the aftermath of the coup. This has led to criticism fromanti-Thaksin activists who believe the government should live by themilitary's rules instead of those enshrined in the 1997charter. That constitution, which was once touted as the 'People'sConstitution,' was tossed away by the military with theacquiescence of some supposedly reform-minded democrats united bytheir distaste for Thaksin's brand of strong-man populism.

The 1997 constitutionwas designed to create strong political parties as a way out of theperiod of unstable and weak coalition governments in the 1990s. YetThaksin defanged the independent bodies in the constitution that weresupposed to provide a system of checks and balances, prompting abacklash from civil society members who saw the billionaire CEOpushing the country toward Singapore-style authoritarianism.  This is what money can 'buy' you...

Even though the courtswere turning against Thaksin by September 2006, the military stilldecided a coup was necessary to get him out of the way. Thearmy-appointed legislators quickly drafted a constitution andelectoral laws that gave bureaucrats and judges immense power todissolve political parties and ban leading party figures frompolitics.

Politicians claim thesemeasures allow non-elected insiders to overthrow elected governmentswithout actually bringing out the tanks. However, others argue thatthe laws will help reduce corruption and introduce a cleanerpolitical system in the future.

'It would be goodto set a precedent for the future,' said Somchai Pakpatwiwat, apolitical scientist at Thammasat University. 'If executives foreach party are held responsible and the party is dissolved, then nexttime everyone will be more careful.'

These legal changes arecrucial as Thailand's political stability hangs in the balance.Proponents of the military's amendments say they enforce the'rule of law' on the political system, while others saythe generals simply want an easy way to knock off political partiesthey don't like.

Looking at the legalsystem as a whole, the laws have come into force after two years inwhich the judiciary has been aligned with the generals who oustedThaksin. Starting in May 2006, when the courts quickly nullified anelection after Thailand's influential king asked judges to'solve the problem' of a pending constitutional crisis, aslew of dubious legal decisions have followed.

In the most bizarrecase, a junta-appointed court dissolved Thai Rak Thai for trying togain power through unconstitutional means even as it upheldadministrative orders from the generals who tore up the constitutionwhen they took power. The decision essentially gave legal legitimacyto coups.

Many political analystsin Thailand accepted the court decisions at the time under the beliefthat they would be one-off measures to get the country through thepolitical crisis. But then the military-appointed assembly tookanother step by permanently changing the constitution and the law toreflect the dubious legal interpretations.

'It was the viewsof the court when it dissolved TRT that it tried to get a key personof the party, and was probably done with tacit consent of the partyitself,' said Gotham Arya, a former election commissioner. 'Butthis time around with the new constitution the judges may have lessroom to interpret the case because the law is very clear that onemember of an executive party is enough to dissolve the whole party.'

The Election Commissionclaims it is simply enforcing the laws on the books.

'The EC doesn'thave a choice,' commissioner Sumeth Upanisakorn told reporterslast week. 'We ask for public understanding. It's simplythat the law has put a lock and chain around our neck.'  Sounds pretty straightforward, we'll see how this shakes out in the end...

The selection processfor a new Constitutional Court that will eventually decide on thedissolution cases is now underway. So far, things don't lookgood for PPP.

In selecting the firstfour of the court's nine judges, the Supreme Court this weekchose Jarun Pukditanakul. He became permanent secretary of theJustice Ministry after the coup and was instrumental in drafting themilitary's 2007 constitution that he will be tasked to uphold.

PPP Finance MinisterSurapong Suebwonglee has called for changes to the constitutionbefore the cases get to the Constitutional Court, saying that thecountry can't move forward with the executive branch constantlyfacing dissolution. He has received the support of coalition partnersMatchimathipataya and Chart Thai, which also face dissolution. 

But the moves to changethe constitution are already facing criticism from anti-Thaksincorners. A Bangkok Post editorial this week said calls for amendmentswere 'mistimed, misplaced and mishandled.'

'If thegovernment pushes for amendments at this time, it would merely showthat politicians are far more obsessed with power andself-preservation than attending to national needs,' thenewspaper said.

So far it'sunclear where exactly the public stands. An Assumption Universitypoll released on Wednesday found that nearly 60 percent ofrespondents back amendments to the constitution. More than half alsowant the banned 111 Thai Rak Thai politicians to assist the currentgovernment.

But the anti-ThaksinPeople's Alliance for Democracy, a group that focusedmiddle-class discontent into widespread protests in 2006, has alreadycome out against the constitutional amendments. The PAD plans to holda rally on Friday, its first since PPP took power.

Whether it will be ableto whip up enough public fury at PPP remains to be seen. But eitherway, the dissolution cases have reopened the bitter fault linebetween Thaksin supporters and opponents.

'This is areflection of the polarization that still exists in Thai society,'said Somchai. 'Thailand's development will continue to bemired in a vicious cycle between pro-Thaksin and anti-Thaksin groupsfor the foreseeable future.'


Read the Fine Print

Under the old laws, dissolution wouldn't even be an issue

Under previous electoral laws, no Thai political party would currently face dissolution.

In this current flap, for example, the Election Commission's decision to disqualify PPP executive and House Speaker Yongyuth Tiyapairat wouldn't have stood under the old laws.

In Yongyuth's case, the commission voted against him in a 3 to 2 vote. Section 8 of the 1998 Election Commission law required votes concerning investigations into election fraud to be unanimous. Section 8 of the new law passed under the military-appointed legislature does away with unanimous votes, requiring only a majority.

The military rewrote the constitution to reinterpret what constitutes undermining 'the democratic regime of government with the King as Head of the State' under Section 63 of the 1997 constitution. Charter drafters have said the clause was originally meant for extreme cases in which parties openly advocated the violent overthrow of the government, like the Communist Party did back in the 1970s.

The military states explicitly in Article 237 of the new constitution that a political party 'is assumed to have sought to gain power in state administration by means other than what is provided in… the Constitution' if an executive committee member is found guilty of election fraud.

That clause is not in the 1997 constitution. Moreover, the previous law on political parties provided room for interpretation on this point, clearly indicating that the constitution drafters intended dissolution for only the most extreme cases. Section 27 of the 1998 Political Parties law says that if an executive member of a party commits an act that is 'contrary to public order or good morals or the democratic regime of government with the King as Head of the State under the Constitution, but the nature of the act is not so serious as to cause dissolution,' then the party would receive 'a written warning… to cease or rectify such act within a period prescribed by the Registrar.'

'The dissolution of a political party should only take place in a very serious case, so I tend to disagree with Article 237 of the constitution,' said Gotham Arya, a former election commissioner who played a key role in drafting the 1997 constitution.

The new constitution and political party laws also make it clear that executive members of dissolved political parties will be banned from standing in an election for five years. This clause stems from a junta order issued immediately after the coup that was designed to prevent 111 Thai Rak Thai lawmakers, including Thaksin, from immediately forming another party. In a move that flew went against international legal norms, the military-appointed court that dissolved TRT applied this coup order ex post facto in May 2006, ensuring that Thaksin and the other banned members can't participate in elections until May 2011.

Previously, the 1998 law said executive members of dissolved political parties could still run for election but couldn't help form a new party or serve on its executive board.