Thailand’s new constitution and electoral system

Thailand will be holding a referendum on adopting a new constitution on August 7. A translation of this document is available here. The nation is currently ruled by a military junta, which took power from the elected government in May 2014. If the constitution is adopted, elections will be held in mid-2017 to choose a new civilian government (though that date has been pushed back a fair few times).

The document provides for a bicameral Thai parliament, as has been the norm for the nation’s numerous democratic constitutions. There is a Senate and a House of Representatives. One of the most substantial changes is that the Senate, which was half-elected and half-appointed by the King (I am unclear whether this was to take place on the advice of the government) under the 2007 constitution, and entirely elected under the 1997 one, will now be wholly appointed. This represents a return to pre-1997 practice.

While the Senate only has a delaying role on most legislation, passage at a joint sitting is required for certain ‘organic’ laws, like those on elections, the operation of the Constitutional Court, and the specific method for choosing Senators. This will become especially important in the first term of government, as the first Senate is to be appointed on the advice of the members of the junta.

The House of Representatives is the larger and more powerful of the two houses. As was hinted at by the drafters of the new document, it is to be elected using mixed-member proportional representation, though with closed lists and a remarkably small list tier (150 list/350 constituency).

When this proposal was first put about, I did some simulations of what the House would have looked like following the 2011 election had MMP been used. These estimates are based off a smaller list tier (the size of the one used under MMM in 2011). Any increase in the size of the House is due to overhang.

"Projections
The key loser would be the populist Pheu Thai party, strongly opposed by the coup leaders and the winner would be the Democrat Party, which is considered to have the tacit support of the coup leaders. This would not necessarily be an unfair advantage (given it would give the Democrats a somewhat closer share of seats to their nationwide support), but it would be an advantage nonetheless.

MMP is specifically entrenched in the document. Amendment procedures have also changed; while past documents have allowed a majority of members of the House to make amendments, the new document will require 20% support from opposition parties to make amendments. Needing a super-majority isn’t unusual internationally, but not many constitutions contain quite so many specific electoral provisions as Thailand’s.

What impact increased proportionality will have on Thailand’s democracy is not entirely clear. On one hand, it could require governments to form broader coalitions, which might reduce confrontation in Thai politics and thus less resort to extra-constitutional means. On the other, it could lead to a fragmented House and weak, revolving-door civilian governments, like those that existed before 1997.

It is also worth noting that the elections scheduled for mid-2017, if they take place then, will be held under a law written and approved by the current military-appointed legislature.

Regardless of this constitution, Thailand has clearly got serious problems with military intervention. Previous Constitutions of a similar nature to this one ended in failure. It is unclear whether this one will be any better, though I see it as unlikely.

Thailand political reforms (yes, again)

The current Thai political reform process, underway since the military coup of 2014, is churning out some significant changes. Already, decisions appear to have been made to move to mixed-member proportional (MMP), with the list-tier seats allocated via open party lists.

Thailand in the past has used mixed-member majoritarian (MMM or “parallel”). It has used multiple nontransferable votes (MNTV, also misleadingly known as “block vote”). It has used MMM and MNTV together. But MMP with open lists would be new, and not only to Thailand.*

The Bangkok Post, on 25 February, refers to various other matters under consideration, although it is vague on specifics.

To prevent the executive branch from being placed in a weakened position by squabbling coalition partners, it was decided that if the opposition wins a no-confidence vote, the House of Representatives would be automatically dissolved.

Constitution Drafting Committee spokesman Khamnoon Sitthisamarn is quoted as saying that under the new electoral system, coalition governments are expected to be the norm, and so they are seeking to make it more costly to change governments between elections.

The CDC spokesman said this would cause the opposition to think carefully about filing a no-confidence motion and only do so if it was really necessary and the government had made serious mistakes.

There could be more measures aimed at making governments stable:

Mr Khamnoon said there will be other measures to prevent parties in the coalition threatening to leave purely in order to obtain benefits from the core parties leading the coalition. These measures would be decided later, he said.

The new constitution will bar independent candidates from running. Given MMP, one would expect few incentives for independents in any case. There will also be a provision that appears to undermine the very idea of open lists:

Another requirement is that in order to be declared a winner, an elected candidate must have received more votes than the total “no votes” cast by those who do not wish to vote for any candidate on the list.

This is not very clear. On the one hand, an open list system in which voters can vote for the party rather than a candidate is unremarkable. However, if it is genuinely an open list, votes solely for the list do not affect who is elected from that list, and in what order; this still depends only on candidates’ ranks in preference votes. If a candidate needs more preference votes than there were list-only votes, then this is not an open list, as presumably few will cross such a threshold, implying that a pre-election list order would have to be a default. That would be a “flexible” (semi-open) list, and probably not a very flexible one in practice.

Clearly there are details to be worked out.

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* I know of no such case at the national level. The German state of Bavaria is sometimes said to be MMP with a tier of open lists. However, I remain uncertain whether that characterization is precise. Years ago I proposed a hybrid MMP/OLPR system before knowing of the Bavarian system. It seems Bavaria uses a system similar to what I proposed, although perhaps different in key details.

Inside the coup

“Less than 24 hours after the coup, Matichon Online had an account of events leading up to what is probably the most publicly staged coup in history.”

My favorite part:

Mr Chaikasem [Nitisiri of the caretaker government] said:” We won’t resign”.

Gen Prayuth then declared: “If that’s the case, the Election Commission need not talk about the polls and the Senate need not talk about Section 7.”

He then stood up and spoke in a loud voice: “I’m sorry. I have to seize the ruling power.”

It was 4.32pm.

At that point some of the attendees still thought he was joking.

They changed their minds when the general walked to the exit and turned back to tell them in a stern voice: “You all stay here. Don’t go anywhere.”

Early elections called in Thailand

Thai Prime Minister Yingluck Shinawatra, facing mass protests, has called early elections. It may not be coincidental that this move comes right after the opposition seemed to have given up on democracy: The Democrat Party, parliament’s second largest, announced Sunday it would resign en masse, and demonstrators have called for an unelected “People’s Council” to replace the elected institutions.

In the last elections, 3 July 2011, Shinawatra’s For Thais Party won 48.4% of the votes and 265 of the 500 seats. The Democrats won 35.2% and 159 seats. The electoral system is MMM. I don’t know much about Thai politics, but I assume Shinawatra isn’t calling an election she expects to lose. The protest movement seems overly confined to its base in Bangkok, whereas the ruling party has deep roots in much of the rest of the country.

Thailand’s politics remains a mess.

Modifications to Thai electoral system

Thailand’s mixed-member majoritarian electoral system is being modified–again.

According to the Thai paper, The Nation, the number of party lists seats is being increased from 100 to 125, and the multi-seat districts in the nominal tier are being replaced by all single-seat districts.

This would make the system more similar once again to the one used from 2001 to 2006, except that I assume the list tier will remain districted (because the article says nothing to suggest that is being changed). In the 2001-06 system, the list tier was nationwide. In 2007, smaller districts for the list tier were introduced, and the nominal tier reverted, partially, to mutli-seat districts using multiple nontransferable votes (MNTV, or “block vote”).

Maybe they can keep this new new system for a few elections.

Superintendence going overboard?

Some years ago I coauthored some work on the concept of ‘superintendence’ agencies, understood as non-elected institutions that provide “horizontal exchange.” The agencies provide checks on the executive and legislature that go well beyond the more typical constitutionality determinations by courts (rejecting laws or decrees, for example). Instead, superintendence agencies substitute for gaps in the “vertical” relationship between voters (the ultimate principal in a democracy) and their elected agents.

The basic idea behind the design of superintendence institutions seems to be an attempt to answer the question: but what happens when the voters themselves choose “bad” agents–those who violate election laws and other constitutional and legal provisions that are meant to ensure “good government.”

There has been quite a proliferation in recent decades of such agencies, including evermore powerful electoral commissions (whose authority extends well beyond mere administration of elections), independent prosecutors, human rights ombudsmen, counter-corruption commissions, and the like. Several superintendence institutions were created in recent constitutional overhauls in Colombia (where they are operative) and Venezuela (where they mostly are not), among other countries. However, perhaps nowhere has the concept of superintendence gone so far as in Thailand’s constitutional innovations of 1997.

This is all a long set-up for a question for the readers: Can anyone identify another case where an unelected institution–other than armed forces, of course–has dismissed a sitting chief executive? This just happened in Thailand:

The Constitution Court moved with unusual speed on Tuesday to dismiss Prime Minister Somchai Wongsawat and outlaw the ruling People Power party. […]

PPP leaders vowed to form another government under the Puea Thai party label. But it will be without Mr Somchai, who was banned from politics for five years. […]

Also banned by the court was the venerable Chart Thai party and the Matchimatipataya, both key members of the coalition government. […]

It is expected that the three banned parties will reunite under the Puea Thai (For Thais) party, and form a government from surviving members of parliament. […]

The court decision banned the parties and all their executives because of cheating in the Dec 23, 2007, election. But the decision has no immediate effect on other MPs or their ability to form a government.

I covered the election at the time: click the country name in the “Planted in” line to see them.