SEARCHING FOR CREDIBLE ELECTORAL TOOLS

Of the many factors that combined to raise political tensions, triggering the events of September 2006, widespread distaste for political interference with our independent institutions was key. Following the adoption of the new Constitution on October 11th, 1997, the mandate to manage elections was taken from the hands of the Ministry of Interior (MOI) and transferred to the Election Commission of Thailand (EC). According to both internal and international norms, such an arrangement for managing electoral works is considered both proper and desirable. By now, the EC and its five Commissioners have overseen all electoral activities for nearly a decade, and the failures and successes of the Thai electoral system and processes have been closely watched by both local and international observers.

Thailand’s EC appears to be the most powerful body of its kind in the Southeast Asian region. The EC has the power to suspend and disqualify candidates if there is evidence of irregularity, vote buying or any kind of violation of electoral law and regulations. The five Commissioners shoulder a number of responsibilities. Apart from organizing and overseeing the national poll in all 76 provinces, they must also monitor the work of the provincial EC’s. However, the role of the EC today is assuming increasing importance as well as complexity, given the population’s increasing support for real democratization and genuine decentralization. Today, elections are held not only to select Members of Parliament (Lower House) and Senators (Upper House), but also for Governors, Provincial Councils, and District Councils. EC Commissioners at national and provincial levels must also investigate complaints or allegations of violations or irregularities by parties or individuals, which includes both interrogation of suspects and punishment of those found in violation. However, some critics argue that this dual role, which requires irreproachable standards of competence, impartiality and transparency, confers too much power to too few individuals, and is thus open to abuse and conflicts of interest.

Neutrality and Impartiality
Whilst these words are nothing new to those working in the electoral field, it is an almost utopian dream to uphold the principles of neutrality and impartiality in a consistent manner - nobody is ever completely neutral, or impartial. All registered voters, including the Commissioners themselves, have the right to choose their preferred candidates. Acknowledging this potential conflict of interest, one Commissioner (Yuwarat) from the first EC team, chose not to vote in order to maintain his complete neutrality.

Vesting such broad powers in just five Commissioners is indeed a dilemma. Even though Thailand has a sound electoral mechanism and relatively good regulations, in practice much depends upon interpretation and the wisdom of individual judgment. Thus the outcome for the nation hinges on the personalities and integrity of the Commissioners themselves. In 2006 the country witnessed how the second EC team led by Gen. Vassana Permlarp ran into a firestorm when accused of abrogating its responsibilities and turning a blind eye to a raft of allegations of serious electoral fraud by the ruling party. At the time Poll Watch Foundation commented,

“Why doesn’t the EC disqualify Thaksin when it is clear that his campaign speech is in violation of the campaigning law? He keeps luring voters by promising them many mega-projects. During the election campaign people could not differentiate his status - whether he spoke as Premier, or as a political candidate”.

Complaints also emerged that the EC failed to uphold regulations limiting politicians’ campaign finances, and that even the ballot booth settings failed to ensure voters’ secrecy. Other allegations included the alleged inability of the EC to provide adequate voter education and public communications relating to the election. In one instance it was even found that one Commissioner went as far as to help his brother (a candidate in Chumphorn Province) to campaign for senatorial elections. Faced with mounting allegations, the EC Commissioners dug in their heels, and amazingly, did virtually nothing to address them. This caused untold harm to the reputation and good standing of the EC as a key independent instrument charged with upholding and defending the democratic process in Thailand. The institution was left open to attacks, especially for misuse of power in the Southern provinces. Only through the intervention of the judiciary were the four serving Commissioners finally brought to book.

Call for Electoral Reform
The daily demonstrations of the growing anti-Thaksin movement, both in Bangkok and in the provinces, along with strident attacks from Poll Watch, political observers, students and academia, finally laid bare the EC’s excesses, and led to a call for nothing short of a full reform of electoral law and the Constitution itself. After the September 19th coup, there were many demands to reduce the powers of the EC Commissioners as well as proposals to set up an Electoral Court to adjudicate on allegations of violations of the electoral law and regulations. The proposals also called for reform of the election process and its implementation.

Minimize the EC’s Power
Once crucial question involves the power of the EC to disqualify candidates and Parliamentary members of both Houses over alleged electoral misconduct. Currently, the Commissioners are able to issue yellow and red cards to Members of Parliament. If there is sufficient evidence linking them to candidates in the constituencies, they may disqualify the candidate and declare a re-election. If a red card is issued, such candidates will be banned from standing again in the next election. Meanwhile, if the EC is unable to find sufficient proof, but there is nevertheless a suspicion of misconduct or irregularity that could point to the candidate, the EC can still issue a yellow card. In the re-election, the same candidate can be allowed to stand again. The question is, whether we should we trust the judgement of Commissioners. And how can we be assured that their deliberations are neutral and free of vested interest? Alternatively, might such problems be averted by having another independent body to provide checks and balances for the EC’s decisions, i.e. an Electoral Court, to take care of such cases?

Establish an Electoral Court
It is helpful to study the impact of alternative models of electoral courts as implemented in other countries such as Brazil, Bolivia, Panama, Peru, Columbia, and South Africa. These experiences have shown that having an Electoral Court can indeed help to reduce the Election Commissioners’ workload and supports the conduct of a credible and transparent election. Although it might be anticipated that such a suggestion might not be supported by the EC’s current Commissioners, since it would mean a diminution and separation of their own powers, nevertheless it has been shown that an Electoral Court can allow the EC to concentrate on electoral administration, training, voter education, information distribution and technical matters. The court’s role is then simply to consider complaints that are directly and indirectly received by the judges, give a verdict and punish offending candidates, parties, poll officers or voters. Having a permanent Electoral Court would also help other courts by sharing the burden and securing prompt verdicts.

However, despite these arguments in favour of establishing a permanent Electoral Court, any proposal to incorporate such a measure into the new Constitution would meet with strong resistance in view of the court’s putative roles in acting as a watchdog for the EC, along with its powers to punish the EC and its officials at both provincial and national levels. The court could also punish electoral officers who stall investigations by taking no action.

Thailand’s electoral process will also be fairer and more transparent if we can learn from the system of Independent Non-Party Care-Taker Government (NPCTG), which was established in Bangladesh to assist the work of its own Election Commission.

Non-Party Caretaker Government (NPCTG)
In the run-up to an election, ruling parties may abuse their power by co-opting government resources and manpower as well as government-run media to help strengthen its campaign and gain votes. In order to prevent a ruling party from taking unfair advantage of its position in this way, the concept of a non-party caretaker government (NPCTG) to be established on dissolution of Parliament, is an attractive option. Offering a level playing field for all parties in this way would minimize potential avenues for this form of corruption, greatly simplifying the work of the EC.

The NPCTG model has been in use in Bangladesh for many years. A Provision of the Constitution of Bangladesh, 58B Article Non-Party Care-taker Government states “there shall be a Non-Party Caretaker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the Constitution of Parliament. The Non-Party Care-taker Government shall be collectively responsible to the President. They shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President”.

According to electoral observers, the system has served Bangladesh well, and could also be adapted to Thailand’s political system. As Thailand does not have a President, such an interim Parliament might be constituted with representation from key professions, such as the judiciary, public prosecutors, the media, the Law Association, civil society, academia, and the private sector. Its mandate would be to work for the EC and to act as an interim Cabinet for a period limited to 90 days: from 60 days before the election to 30 days after polling day, or until the new elected Cabinet gives its oath to the King. During those 60 days before polling, former Cabinet members may return to their parties to participate in campaign activities, just like other parties. However, during this 90 day period, no candidate would be able to utilize public funds to support an election campaign, Also, no national financial motions could be proposed or considered by the NPCTG during its period of office. Meanwhile, government officers would be able to continue their routine work without fear of intimidation, and would be freed from pressure (whether explicit or implicit) to support the ruling party.

Other Reforms
Aside from the aforementioned proposals, electoral law would benefit from a number of other amendments: for example, allowing voters to vote from anywhere by asking them to register at their voting places, and requiring only their identification papers. Prisoners should also have the right to vote, and wider use of electronic voting should be introduced to improve efficiency and transparency.

Regarding monitoring of electoral processes by civil society, the long experience of institutions such as Poll Watch Foundation and P-Net should be recognized and reinforced by allocating government budgets directly to the respective organization, rather than channeling funds though the EC, as is currently the case. Both bodies have conducted poll monitoring work and voter education for more than 15 years, even before the establishment of the EC. Clearly, their experience and expertise have contributed greatly to free and fair elections in the past, and helped shape electoral processes to prevent abuse. Ideally, such bodies should be accountable to Parliament and should have permanent offices for long-term development. The Panwaslu of Indonesia exemplifies the success of this model for election monitoring.

Perhaps most importantly, the EC needs to grasp the nettle and consider seriously the issue of vote buying. To change Thai electoral culture and prevent a culture of massive corruption, the EC and relevant authorities must enforce the law to punish both vote buyers and sellers. Taiwan has successfully tackled this problem by punishing both sides for the last several years. •

CONSTITUTION ISSUE 1 JUN-SEP 2007 Somsri Hananuntasuk Director of the Asian Network for Free Elections
		GUEST WRITERS: SEARCHING FOR CREDIBLE ELECTORAL TOOLS by Somsri Hananuntasuk

		Of the many factors that combined to raise political tensions, triggering the events of September 2006, widespread distaste for political interference with our independent institutions was key. Following the adoption of the new Constitution on October 11th, 1997, the mandate to manage elections was taken from the hands of the Ministry of Interior (MOI) and transferred to the Election Commission of Thailand (EC). According to both internal and international norms, such an arrangement for managing electoral works is considered both proper and desirable. By now, the EC and its five Commissioners have overseen all electoral activities for nearly a decade, and the failures and successes of the Thai electoral system and processes have been closely watched by both local and international observers. Thailand’s EC appears to be the most powerful body of its kind in the Southeast Asian region. The EC has the power to suspend and disqualify candidates if there is evidence of irregularity, vote buying or any kind of violation of electoral law and regulations. The five Commissioners shoulder a number of responsibilities. Apart from organizing and overseeing the national poll in all 76 provinces, they must also monitor the work of the provincial EC’s. However, the role of the EC today is assuming increasing importance as well as complexity, given the population’s increasing support for real democratization and genuine decentralization. Today, elections are held not only to select Members of Parliament (Lower House) and Senators (Upper House), but also for Governors, Provincial Councils, and District Councils. EC Commissioners at national and provincial levels must also investigate complaints or allegations of violations or irregularities by parties or individuals, which includes both interrogation of suspects and punishment of those found in violation. However, some critics argue that this dual role, which requires irreproachable standards of competence, impartiality and transparency, confers too much power to too few individuals, and is thus open to abuse and conflicts of interest. Neutrality and Impartiality Whilst these words are nothing new to those working in the electoral field, it is an almost utopian dream to uphold the principles of neutrality and impartiality in a consistent manner - nobody is ever completely neutral, or impartial. All registered voters, including the Commissioners themselves, have the right to choose their preferred candidates. Acknowledging this potential conflict of interest, one Commissioner (Yuwarat) from the first EC team, chose not to vote in order to maintain his complete neutrality. Vesting such broad powers in just five Commissioners is indeed a dilemma. Even though Thailand has a sound electoral mechanism and relatively good regulations, in practice much depends upon interpretation and the wisdom of individual judgment. Thus the outcome for the nation hinges on the personalities and integrity of the Commissioners themselves. In 2006 the country witnessed how the second EC team led by Gen. Vassana Permlarp ran into a firestorm when accused of abrogating its responsibilities and turning a blind eye to a raft of allegations of serious electoral fraud by the ruling party. At the time Poll Watch Foundation commented, “Why doesn’t the EC disqualify Thaksin when it is clear that his campaign speech is in violation of the campaigning law? He keeps luring voters by promising them many mega-projects. During the election campaign people could not differentiate his status - whether he spoke as Premier, or as a political candidate”. Complaints also emerged that the EC failed to uphold regulations limiting politicians’ campaign finances, and that even the ballot booth settings failed to ensure voters’ secrecy. Other allegations included the alleged inability of the EC to provide adequate voter education and public communications relating to the election. In one instance it was even found that one Commissioner went as far as to help his brother (a candidate in Chumphorn Province) to campaign for senatorial elections. Faced with mounting allegations, the EC Commissioners dug in their heels, and amazingly, did virtually nothing to address them. This caused untold harm to the reputation and good standing of the EC as a key independent instrument charged with upholding and defending the democratic process in Thailand. The institution was left open to attacks, especially for misuse of power in the Southern provinces. Only through the intervention of the judiciary were the four serving Commissioners finally brought to book. Call for Electoral Reform The daily demonstrations of the growing anti-Thaksin movement, both in Bangkok and in the provinces, along with strident attacks from Poll Watch, political observers, students and academia, finally laid bare the EC’s excesses, and led to a call for nothing short of a full reform of electoral law and the Constitution itself. After the September 19th coup, there were many demands to reduce the powers of the EC Commissioners as well as proposals to set up an Electoral Court to adjudicate on allegations of violations of the electoral law and regulations. The proposals also called for reform of the election process and its implementation. Minimize the EC’s Power Once crucial question involves the power of the EC to disqualify candidates and Parliamentary members of both Houses over alleged electoral misconduct. Currently, the Commissioners are able to issue yellow and red cards to Members of Parliament. If there is sufficient evidence linking them to candidates in the constituencies, they may disqualify the candidate and declare a re-election. If a red card is issued, such candidates will be banned from standing again in the next election. Meanwhile, if the EC is unable to find sufficient proof, but there is nevertheless a suspicion of misconduct or irregularity that could point to the candidate, the EC can still issue a yellow card. In the re-election, the same candidate can be allowed to stand again. The question is, whether we should we trust the judgement of Commissioners. And how can we be assured that their deliberations are neutral and free of vested interest? Alternatively, might such problems be averted by having another independent body to provide checks and balances for the EC’s decisions, i.e. an Electoral Court, to take care of such cases? Establish an Electoral Court It is helpful to study the impact of alternative models of electoral courts as implemented in other countries such as Brazil, Bolivia, Panama, Peru, Columbia, and South Africa. These experiences have shown that having an Electoral Court can indeed help to reduce the Election Commissioners’ workload and supports the conduct of a credible and transparent election. Although it might be anticipated that such a suggestion might not be supported by the EC’s current Commissioners, since it would mean a diminution and separation of their own powers, nevertheless it has been shown that an Electoral Court can allow the EC to concentrate on electoral administration, training, voter education, information distribution and technical matters. The court’s role is then simply to consider complaints that are directly and indirectly received by the judges, give a verdict and punish offending candidates, parties, poll officers or voters. Having a permanent Electoral Court would also help other courts by sharing the burden and securing prompt verdicts. However, despite these arguments in favour of establishing a permanent Electoral Court, any proposal to incorporate such a measure into the new Constitution would meet with strong resistance in view of the court’s putative roles in acting as a watchdog for the EC, along with its powers to punish the EC and its officials at both provincial and national levels. The court could also punish electoral officers who stall investigations by taking no action. Thailand’s electoral process will also be fairer and more transparent if we can learn from the system of Independent Non-Party Care-Taker Government (NPCTG), which was established in Bangladesh to assist the work of its own Election Commission. Non-Party Caretaker Government (NPCTG) In the run-up to an election, ruling parties may abuse their power by co-opting government resources and manpower as well as government-run media to help strengthen its campaign and gain votes. In order to prevent a ruling party from taking unfair advantage of its position in this way, the concept of a non-party caretaker government (NPCTG) to be established on dissolution of Parliament, is an attractive option. Offering a level playing field for all parties in this way would minimize potential avenues for this form of corruption, greatly simplifying the work of the EC. The NPCTG model has been in use in Bangladesh for many years. A Provision of the Constitution of Bangladesh, 58B Article Non-Party Care-taker Government states “there shall be a Non-Party Caretaker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the Constitution of Parliament. The Non-Party Care-taker Government shall be collectively responsible to the President. They shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President”. According to electoral observers, the system has served Bangladesh well, and could also be adapted to Thailand’s political system. As Thailand does not have a President, such an interim Parliament might be constituted with representation from key professions, such as the judiciary, public prosecutors, the media, the Law Association, civil society, academia, and the private sector. Its mandate would be to work for the EC and to act as an interim Cabinet for a period limited to 90 days: from 60 days before the election to 30 days after polling day, or until the new elected Cabinet gives its oath to the King. During those 60 days before polling, former Cabinet members may return to their parties to participate in campaign activities, just like other parties. However, during this 90 day period, no candidate would be able to utilize public funds to support an election campaign, Also, no national financial motions could be proposed or considered by the NPCTG during its period of office. Meanwhile, government officers would be able to continue their routine work without fear of intimidation, and would be freed from pressure (whether explicit or implicit) to support the ruling party. Other Reforms Aside from the aforementioned proposals, electoral law would benefit from a number of other amendments: for example, allowing voters to vote from anywhere by asking them to register at their voting places, and requiring only their identification papers. Prisoners should also have the right to vote, and wider use of electronic voting should be introduced to improve efficiency and transparency. Regarding monitoring of electoral processes by civil society, the long experience of institutions such as Poll Watch Foundation and P-Net should be recognized and reinforced by allocating government budgets directly to the respective organization, rather than channeling funds though the EC, as is currently the case. Both bodies have conducted poll monitoring work and voter education for more than 15 years, even before the establishment of the EC. Clearly, their experience and expertise have contributed greatly to free and fair elections in the past, and helped shape electoral processes to prevent abuse. Ideally, such bodies should be accountable to Parliament and should have permanent offices for long-term development. The Panwaslu of Indonesia exemplifies the success of this model for election monitoring. Perhaps most importantly, the EC needs to grasp the nettle and consider seriously the issue of vote buying. To change Thai electoral culture and prevent a culture of massive corruption, the EC and relevant authorities must enforce the law to punish both vote buyers and sellers. Taiwan has successfully tackled this problem by punishing both sides for the last several years. •



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