Dissolution déjà vu in Thailand

Just when it looked like Thailand was ready to move past the two-year political crisis that has sapped consumer and investor confidence, the battle between the People Power Party and its enemies has started to heat up again.

Last week the Election Commission recommended the dissolution of the PPP, which is comprised of allies of deposed Prime Minister Thaksin Shinawatra, as well as two of its coalition partners for alleged election fraud committed by PPP executive and House Speaker Yongyuth Tiyapairat.

The cases could take months or years to drag through the courts, but already PPP has vowed not to accept a dissolution verdict. A year earlier the courts disbanded Thai Rak Thai, the party Thaksin founded and which is a precursor to PPP. At that time Thaksin’s loyalists went away meekly.

“I think we are now beyond the petty legal interpretations,” said Jakrapob Penkair, a PPP cabinet member who earlier staged protests against the group that staged the coup that ousted Thaksin in September 2006. “If the party will be dissolved again, we would see it as a struggle now. It’s not only a legal conclusion, it is actually the undermining of democracy.”

The PPP-led government is now rushing to change the constitution and electoral laws written in the aftermath of the coup. This has led to criticism from anti-Thaksin activists who believe the government should live by the military’s rules instead of those enshrined in the 1997 charter. That constitution, which was once touted as the “People’s Constitution,” was tossed away by the military with the acquiescence of some supposedly reform-minded democrats united by their distaste for Thaksin’s brand of strong-man populism.

The 1997 constitution was designed to create strong political parties as a way out of the period of unstable and weak coalition governments in the 1990s. Yet Thaksin defanged the independent bodies in the constitution that were supposed to provide a system of checks and balances, prompting a backlash from civil society members who saw the billionaire CEO pushing the country toward Singapore-style authoritarianism.

Even though the courts were turning against Thaksin by September 2006, the military still decided a coup was necessary to get him out of the way. The army-appointed legislators quickly drafted a constitution and electoral laws that gave bureaucrats and judges immense power to dissolve political parties and ban leading party figures from politics.

Politicians claim these measures allow non-elected insiders to overthrow elected governments without actually bringing out the tanks. However, others argue that the laws will help reduce corruption and introduce a cleaner political system in the future.

“It would be good to set a precedent for the future,” said Somchai Pakpatwiwat, a political scientist at Thammasat University. “If executives for each party are held responsible and the party is dissolved, then next time everyone will be more careful.”

These legal changes are crucial 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 say the generals simply want an easy way to knock off political parties they don’t like.

Looking at the legal system as a whole, the laws have come into force after two years in which the judiciary has been aligned with the generals who ousted Thaksin. Starting in May 2006, when the courts quickly nullified an election after Thailand’s influential king asked judges to “solve the problem” of a pending constitutional crisis, a slew of dubious legal decisions have followed.

In the most bizarre case, a junta-appointed court dissolved Thai Rak Thai for trying to gain power through unconstitutional means even as it upheld administrative orders from the generals who tore up the constitution when they took power. The decision essentially gave legal legitimacy to coups.

Many political analysts in Thailand accepted the court decisions at the time under the belief that they would be one-off measures to get the country through the political crisis. But then the military-appointed assembly took another step by permanently changing the constitution and the law to reflect the dubious legal interpretations.

“It was the views of the court when it dissolved TRT that it tried to get a key person of the party, and was probably done with tacit consent of the party itself," said Gotham Arya, a former election commissioner. "But this time around with the new constitution the judges may have less room to interpret the case because the law is very clear that one member of an executive party is enough to dissolve the whole party.”

The Election Commission claims it is simply enforcing the laws on the books.

“The EC doesn’t have a choice,” commissioner Sumeth Upanisakorn told reporters last week. “We ask for public understanding. It’s simply that the law has put a lock and chain around our neck.”

The selection process for a new Constitutional Court that will eventually decide on the dissolution cases is now underway. So far, things don’t look good for PPP.

In selecting the first four of the court’s nine judges, the Supreme Court this week chose Jarun Pukditanakul. He became permanent secretary of the Justice Ministry after the coup and was instrumental in drafting the military’s 2007 constitution that he will be tasked to uphold.

PPP Finance Minister Surapong Suebwonglee has called for changes to the constitution before the cases get to the Constitutional Court, saying that the country can’t move forward with the executive branch constantly facing dissolution. He has received the support of coalition partners Matchimathipataya and Chart Thai, which also face dissolution.

But the moves to change the constitution are already facing criticism from anti-Thaksin corners. A Bangkok Post editorial this week said calls for amendments were “mistimed, misplaced and mishandled.”

“If the government pushes for amendments at this time, it would merely show that politicians are far more obsessed with power and self-preservation than attending to national needs,” the newspaper said.

So far it’s unclear where exactly the public stands. An Assumption University poll released on Wednesday found that nearly 60 percent of respondents back amendments to the constitution. More than half also want the banned 111 Thai Rak Thai politicians to assist the current government.

But the anti-Thaksin People’s Alliance for Democracy, a group that focused middle-class discontent into widespread protests in 2006, has already come out against the constitutional amendments. The PAD plans to hold a rally on Friday, its first since PPP took power.

Whether it will be able to whip up enough public fury at PPP remains to be seen. But either way, the dissolution cases have reopened the bitter fault line between Thaksin supporters and opponents.

“This is a reflection of the polarization that still exists in Thai society,” said Somchai. “Thailand’s development will continue to be mired in a vicious cycle between pro-Thaksin and anti-Thaksin groups for 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.