Here we go again.

A month ago [1] we had to explain why progressive Thai civil society was
sitting on the same side of the barricades as the forces of darkness. (See
Focus on Trade #116 What happens when you run a country like a corporation: a Primer on Thailand’s political crisis) The paradox this time is as follows:

– Prime Minister Thaksin Shinawatra’s legitimacy to govern is questioned
after his children collect a tax-free 73.4 billion baht (about 1.9 billion
USD) from the sale of dad’s telecom shares

– The PM calls an election to answer these questions and re-assert his
legitimacy

– The PM wins the election by 16 million votes to 10-11 million (although
because of a boycott by the opposition, the 10-11 million were votes for
no candidate and spoiled ballots, so this really means he beat nobody)

– The People’s Alliance for Democracy [2] still has him hounded from
office into a temporary holiday.

It looks like the pro-democracy camp has just delivered ’a blow to Thai
democracy’, as the Economist’s headline writer had it. [3]

How can you be pro-democracy and anti-elections?

 VOX POPULI

Elections are getting some bad press and throwing up uncomfortable results
from Palestine to Ukraine to Thailand. But it is especially dangerous to
equate Thai elections with democratic rights.

Thai electoral law says that if there is only one candidate for a seat,
then that candidate must get the votes of at least 20% of registered
voters. When the three main opposition parties boycotted the April 2
elections, this minor technicality began to look like a major spanner in the works
of Thaksin’s Thai Rak Thai (“Thais love Thais”) party.

First of all, some unheard-of and near-defunct parties suddenly sprang into
electoral life and started putting up candidates. Suspiciously, these
appeared mostly in seats where the opposition was traditionally strong and
Thai Rak Thai (TRT) weak. The assumption was that these were electoral
potted plants with no other function than to lose and to remove the 20%
hurdle. These suspicions were strengthened when reporters discovered
that these out-of-nowhere candidates didn’t know their own party leaders,
policies, or anything.

Unfortunately for whoever was orchestrating this cynical manipulation of the
rules, things began to unravel. Some of the rent-a-candidates had to be
disqualified, mostly because either they didn’t vote in the last election [4]
or they hadn’t been party members long enough. Then it was discovered
that someone had paid an Election Commission of Thailand (ECT) official to
tamper with their database and backdate the party membership of some
candidates. The Election Commission (of whose commitment to
democratic principles we will speak later) banned the candidates and
parties involved, but didn’t think it necessary to wonder who might be
paying for all this. The Commissioners seemed to be satisfied with the
idea that these parties were paying bribes to an ECT official for the privilege
of losing.

So in the April 2 elections, unopposed TRT candidates failed to clear the
20% hurdle in 40 constituencies. This prompted the emergence of a new
political role - professional losing candidate. Some of the potted plants
who lost on 2 April (thus allowing TRT to win without needing 20%) now
registered to lose again in fresh constituencies in the by-elections
called two weeks after the first round. This was too bare-faced even for
the comp laisant ECT and they squelched this gambit.

TRT was now faced with the prospect of running unopposed a second time,
and failing to get 20% of the votes yet again. So the ECT took pity and on
21 April, re-opened registration for new candidates in by-elections to be
held on, er, 23 April. It has never been explained how candidates could
successfully campaign in two days [5], how voters could even learn who
the candidates in their constituencies were, nor what this does for
democracy.

But once again, TRT fell short of the 20% mark in 14 constituencies. So
there had to be by-by-elections. This was a farce that could run and run.
But not many would think it was democratic.

Meanwhile, two and half weeks after the elections for the House of
Representatives that Thaksin sort of won, Thais were obliged to go back to
the polls to elect a Senate. If you were a voter in Bangkok, this meant
that you had to choose one candidate from among 260-odd, none of whom
were allowed to campaign other than by posters and leaflets giving name,
educational qualifications and work history. The best-informed voters
could recognize maybe 10% of the candidates on offer.

What kind of democracy can you expect from an election where the vast
majority of voters haven’t a clue about the vast majority of candidates?
Well, one where the biggest vote-winner in Bangkok was a TV talk-show
host and another was an aging movie star [6]. Many successful candidates
around the country were themselves unknowns. They just happened to be
the wives, siblings, children, parents or general camp-followers of active
politici ans who are well-known.

You see, when the drafters of the 1997 Constitution got to the part about
Senate elections, they seem to have gone a bit dreamy-eyed. While they
loaded onto the Senate’s shoulders the jobs of both riding herd on the
House and selecting members the various independent agencies with
mandates to check the power of the government, there seems to have been
the expectation that Senators themselves would be proper ladies and
gentlemen and require no strict oversight.

The requirement that candidates not be members of political parties and
the bizarre restrictions on campaigning were supposed to ensure a
gathering of the great and good, not the motley collection of B-list
celebrities and hangers-on that we have ended up with.

Another subtle difference between House and Senate elections concerns
vote-counting. Section 104 of the Thai constitution must be unique in
constitutional law. The stipulation that vote-counting is to be done at
one central location in each constituency is normally not a matter of
enough importance to be mentioned in a constitution.

But in Thailand, it had to be. In the bad old days, all vote-counting was
done at each polling station, right after polls were closed. The
procedure was admirably transparent. Each ballot paper was held up for
public inspection and a chalk-board tally kept count. And in the corner
were the party canvassers with their calculators, figuring out how
successful their vote-buying had been to two decimal places. [7] Central
counting was one way to stop that.

But this applies only to House elections. Senate election votes are still
counted at the polling stations, since would-be senators would be too
respectable to indulge in such shenanigans, right? Well, perhaps, but
only if you are the kind of person that thinks elections have something to
do with democracy.

The entire voting exercise in Thailand is overseen by the ECT, one of the
independent agencies created by the 1997 constitution. Its performance in
the 2 April election, and in the previous House election in February 200
5, has done nothing for its reputation.

There is a tape of a meeting in Songkhla (a province in the south of
Thailand) just before the February 2005 election. On it someone referred
to as ’Minister’ tells provincial governors (who, as part of the Ministry
of Interior, used to oversee elections under the old constitution) to buy
votes, forget about the red and yellow cards [8], and collect 100,000 baht
if the election is won. [9]

A transcript of the meeting was published in the Thai media, and a police
colonel who was present offered to testify that the Minister was Newin
Chidchob, one of Thaksin’s most trusted lieutenants. The ECT decided that
it could not make out what was said on the tape and chose to take no
further action. [10]

Not that the ECT has no concerns over vote-buying. One of the tricky
things about vote-buying is how the vote-buyer can ensure that the vote is
bought. Thai politicians have thought up numerous ingenious ways of doing
this and have recently been helped by technology in the form of mobile
phones with built-in cameras. The voter retires to the privacy of the
voting booth, marks the ballot, and phones a photo of the ballot to the
vote-buyer. Then he or she folds the ballot paper, puts it in the box
and promptly collects the bribe.

So in the 2 April elections, voters turned up to discover that the
individual voting booths (a desk with chest-high panels on three sides)
had been turned so that instead of the open side facing the back wall of
the polling station as before, it faced the front. This, said the ECT,
was so that poll officials could spot any hanky-panky with mobile phones
and such.

It also meant that a press photographer with a zoom lens had no difficulty
in taking a picture of PAD leader Chamlong Srimuang checking the
’vote-for-nobody’ box. [11] So much for the secret ballot guaranteed by
the constitution. But this poorly thought out lapse in the ECT’s
collective common sense might yet save the nation.

 VOX DEI

So you can’t expect democratic governments as the natural consequence of
winning elections, especially elections that are crude parodies of due
process. But for all its flaws, this is normally the way governments are
chosen and if you don’t like the results, tough. So why is the election,
three times running, of Thaksin Shinawatra so unacceptable to the
progressive parts of Thai society? Why do they equate rejecting the
popular voice with ’rescuing the country’?

To answer this question, we need to look at how Thaksin actually gets 16
million votes, since he doesn’t buy them all. There is a genuine
groundswell of support for him and the policies that he represents.

The ’mess’ [12] that currently faces Thailand includes a divisiveness that
is quite worrying. Much of it can be traced to policies, both stated and
implicit, of the Thaksin administration.

Shortly after he was elected for the first time, Thaksin gave an interview
to Matichon newspaper [13] in which he made a remarkable observation about
how he was going to manage the Thai economy, which he already saw as be
ing in two sections.

"The management of the upper portion of the economy is a capitalist type;
the management of the lower portion is a socialist type. You have to
understand both the upper and lower dimensions."

It is always wise to interpret a Thai politician’s use of the terms like
’capitalist’ and ’socialist’ with some care. They may not mean what they
normally mean.

Thaksin’s understanding of capitalism, for example, may well be shaped by
his own experience. If so, his concept will not be quite the free market
neo-liberalism that economic orthodoxy preaches. Thaksin did not make his billions by open competition in the IT marketplace. He did it through
the judicious and far-sighted acquisition and exploitation of some
extremely lucrative government concessions. He was, more than once, the
first mover in his line of business. But the natural, and perhaps
deserved initial advantage that his acumen gave him was magnified many
times over by some very un-free restrictions on later entrants.

Thai politicians have known the huge potential of rent-seeking profits for
years. This involves the political control of the government
institutional and regulatory framework, which can then be manipulated for
personal b enefit. But their relatively crude restraints on free trade
(very often international trade) don’t pass muster in the days of WTO
arbitration panels. Thaksin refined the system into something far more
sophisticated [14] - but it’s still not free trade.

The political-capitalist nexus in Thailand is particularly strong. Chang
Noi [15] quotes research in 2003 from Vanderbilt University which measured
the political connections of business firms in various countries. Thail
and has the second strongest connections, after oligarchic Russia.
Thaksin is the quintessentially well-connected businessman-cum-politician. Before he ever got into politics, his companies regularly got good
ratings from business analysts. And the strongest feature of his
corporate empire was summed up as ’perfect connections’.

So when Thaksin talks of capitalism for the rich, he isn’t talking of the
archetypal entrepreneur of western ideology, who ’pulls himself up by his
bootstraps’. Thai capitalists like Thaksin certainly pull themselves up, but by quite different strings.

A system where capitalists take political power so that they can mould
economic institutions in the way most advantageous to them is dangerous.
The longer it goes on, the more entrenched the powers-that-be.
Economically , there is no clear balancing mechanism, so any protection
for the rest of society, be they debt-ridden farmers, minority
share-holders or business rivals, has to come from the political process.

This helps explain part of the opposition to Thaksin. Previous
anti-government protests, such as the Assembly of the Poor rallies in the
1990s, earned nothing but vitriol from the Bangkok middle-class. Radio
phone-in programmes were full of comments about rural layabouts with
nothing better to do than make the middle class’s traffic nightmare even
worse.

But the anti-Thaksin demonstrations of the past month have successfully
taken their road show into the Silom area, Bangkok’s financial heart. The
sympathetic reception they got wasn’t from corporate slaves opposed to the system. It was from would-be Thaksins who think that free-market economics is just fine. It’s just that Thaksin has gone a bit ’over’ and there was no obvious way of reining him in.

The pro-Thaksin groups were motivated by quite a different perspective.
To them [16], ’development’ is something that has been imposed on them by
the government, like taxes, the military draft and other obligations of citizenship. And the agent of development has been the government
bureaucracy. Elephantine, self-serving, and highly controlled by the
ministries in Bangkok, it has been the main mechanism by which the Bangkok
elite has imposed its will on the country.

It has, however, rarely been dominated by politicians, who, by their
nature, come and go. A minister or two might galvanize some part of the
government apparatus into doing his will, but the effect will not outlive
his term of office.

To the rural population at the receiving end, the game has been to evade
the worst government interventions while angling for any goodies on offer. And government officials at the district and sub-district levels, with no local allegiance or accountability, and whose career prospects depend on
pleasing Bangkok, are interventionist. They are themselves close to the
bottom of the civil service food chain and lumbered with implementing the latest hare-brained scheme from an air-conditioned office in Bangkok. Respected economist Dr Ammar Siamwalla, formerly head of the Thailand Development Research Institute, has said that the saddest sight in Thai agriculture is a local extension officer trying to persuade a farmer to do something that they both know won’t work.

Thaksin began his first administration with ’civil service reform’, creating new ministries, shifting departments from one to the other and
generally leaving government officials in a state of paralyzing confusion. And i t has never stopped. Civil servants find themselves moved from Office A to Office B, then back again, then to Office C.

Amid this turmoil come overriding orders from the political top. So
hundreds of agriculture officials have stopped doing whatever it was they
were originally doing, and whatever it was they were ’reformed’ into
doing, and find themselves certifying exports. [17]

So while civil service reform becomes permanent chaos, officials have less
time for bossing the rural population about and villagers breathe a sigh
of relief.

At the same time, Thaksin has opened up new opportunities for villagers to
get ahead. The million baht fund for each village, for example, was
rushed into implementation with a speed that left experienced development
workers shaking their heads. And it is easy to find funds that have been
squandered on unproductive luxuries. But in many other cases,
enterprising villagers have taken the opportunity with both hands and
prospered from it . Land, cows, laptops, houses, loans, taxis - many of
these schemes are semi-botched, either in conception, implementation or
both. But that still leaves huge opportunities where almost none existed
before.

And the villagers haven’t had to go through the demeaning charade of
kow-towing to government officials to get what they want. These
programmes all carry a Thaksin label. When they work, he takes the
credit. And he get s their grateful votes.

Now there are aspects of Thaksin’s policies that resemble what most people
would call socialism. The 30-baht-per-illness healthcare system is the
most-quoted example. But it is difficult to square the rest of the programmes with any concept of socialism that would be recognized by socialists. The emphasis on individual rather than collective effort, the central role played by capital and the debt incurred to access it, and the paucity of democratic decision-making at any level lower than the national parliament make many observers see this as petty capitalism.

And this democratic deficit is what has caused the split. Thaksin has
legality on his side. He claims to operate by the rules. (In fact he
doesn’t when it doesn’t suit his purpose and he makes some of the rules
himself.) But he has little interest in democracy. His opponents
gleefully repeat a quotation of his a year ago when he said that democracy
wasn’t his goal.

The anti-Thaksin opposition claim Thaksin has no legitimacy. They claim
the rules simply aren’t fair and refuse to play by them. They won’t stand
in his elections, they won’t vote for any candidate (or scrawl anti-Thaks
in obscenities on their spoiled ballots), and they court arrest by ripping
up their ballot papers.

 DEUS EX MACHINA

So how do we get out of this mess?

Even before the election, the anti-Thaksin side was seriously split on
this. Some argued for the use of Article 7 of the Constitution. This is
a sort of default option for situations that aren’t covered by any other
article, law, or regulation and says that such situations "shall be
decided in accordance with the constitutional practice in the democratic
regime of government with the King as Head of State". This has been
interpreted by many as an appeal to the King as the ultimate arbiter, a role that His Majesty has undertaken before at times of national crisis, such as in 1973 and 1992.

Others were not comfortable with solving the problem of Thaksin’s lack of
democratic legitimacy by resorting to such a patently non-democratic
mechanism.

This all became moot on April 24 when His Majesty used the occasion of the
swearing-in ceremony for some judges to explain that he wasn’t about to
get involved, and to throw the problem into the collective lap of the Supreme Court, the Constitutional Court and the Administrative Court.[18]
This is unlikely to be what the courts wanted to hear. Previous petitions
to the Constitutional Court on various aspects of Thaksin’s behaviour
durin g this episode were not even accepted for a hearing, a decision that
left some legal experts speechless. [19] Nor is there any clear procedure
by which the courts can combine their operations.

So there we stand. Divided, uncertain and with very different views of
how to move forward. At the moment, it seems most likely that the courts
will go back and look at those voting booths in the 2 April elections -
the ones that allowed voters’ decisions to be spied on. This, claims one petition, denied all citizens the right to a secret ballot. So there is the possibility that the snap election, which Thaksin intended to solve the problem, will be annulled and we can start all over again.

The only thing that seems certain is that in a month or so, we will have
to write another article explaining the latest twists and turns in
Thailand’s search for a government.

NOTES

[1] http://www.focusweb.org/content/view/837/29/. New readers start
here. Telecoms billionaire Thaksin Shinawatra and his newly formed Thai
Rak Thai party came to power in 2001 under the first election held under
the 1 997 constitution, and won re-election in February 2005. Allegations
of corruption, conflict of interest and neutralization of the so-called
independent agencies mandated to monitor government performance culminated
in wi despread outrage at the February 2006 sale of shares in Thaksin’s
flagship company, Shin Corporation to Temasek, controlled by the
Singaporean government. Month-long demonstrations by the newly formed
People’s Alliance f or Democracy called for Thaksin’s ouster. A complex
series of behind-the-scenes manœuvres involving the palace and the
military resulted in Thaksin calling a snap election for 2 April 2006.
The 3 opposition parties wit h MPs in the House immediately announced they
would boycott the polls. Thai Rak Thai duly won the virtually uncontested
election but before the new parliament could be called, Thaksin announced
he was taking a temporary break from politics, left a military Deputy
Prime Minister in charge and went off on a tour of world leaders.

[2] It has since been renamed as the ’People’s Assembly for Democracy’ [3] The
Economist, Vol 379, No 8472, 8-14 April 2006.

[4] Voting is obligatory in Thailand. The penalties for failing to vote are automatic and include loss of the right to stand for election. All rights are restored as soon
as the voter does vote in a future election.

[5] Technically, less than 2 days, since campaigning is not allowed on polling day.

[6] One assumes his iron-pumping CVD was an attempt to soften the aging factor. But it might still be ruled as a form of campaigning and get his election
annulled.

[7] The process worked like this. First, there was a rule that
each constituency elected 3 members, so each voter could pick 3 names.
There was a second rule that required all parties to stand in at least 2/3
of all constituencies. For the minor parties, this meant a host of dummy
candidates all over the country, who were standing just to make up
numbers. So a voter would be faced with a list of, say, 36 names,
representing 12 parties. But only 3 or 4 of the parties were seriously
contesting the seat. So the canvassers for Party A, whose candidates were
numbers 1, 2 and 3, would pay voters in polling ward 1 to vote for
candidates 1, 2 and 34. 34 w as a no-hoper, so they were throwing away
votes for their candidate 3 and in return getting a way of measuring how
many votes they had bought. In polling ward 2, voters would be paid to
vote for candidates 1, 3 and 35, and in polling ward 3, to vote for 2, 3
and 36. And so on. 2/3 of the votes they were buying would go to the
candidates they were working for, and 1/3 would be ’marker’ votes, votes
for one of the candidates who no-one was expected to vote for at all. As
long as the canvassers could know the votes cast per polling station, they
could figure out how many votes they had successfully bought.

[8] ECT investigations into electoral malpractice can result in a decision that a
candidate has definitely done wrong and is barred from standing in the
repeat election (red card). Or, if a candidate is charged with wrong-doing, but not to the point of disqualification, the election will be repeated and the candidate is allowed to stand again (yellow card).

[9] The alleged recruitment by TRT of government officials as vote-buyers has
given rise to suspicions about who is actually running Thai elections. On
3 April this year, one day after the poll, Thaksin claimed that TRT had won 16.2 million of the party-list votes. At that point neither the ECT nor the media had published a total party-list vote (the final ECT figure was 16.4 million). When asked where he got the figure from, Thaksin said it was from the Ministry of Interior. How would they know?

[10] ECT did however take action against opposition candidate Sata
Awaekueji from Pattani, who was disqualified for telling people that
Thaksin and TRT are rich and asking people not to vote for rich people.
This was ju dged to be defamation.

[11] This was helped by a change in the layout of the ballot paper. Since voting is compulsory, there has to be a box allowing voters to register ’no vote’, i.e. they wish to choose none of the candidates or parties on offer. In previous elections, this
box had been at the top of the ballot paper. Now it was at the bottom,
making it easier to see when voters marked it.

[12] This is the word that was repeatedly used in translation of HM the King’s speech to
Administrative Court Judges on 24 April 2006, when he rejected calls for
him to intervene directly in solving the political crisis.

[13] With Sorakon Adulayanon, Matichon Weekly, Volume No. 1112, December
10-16, 2001.

[14] An example would be regulations governing foreign
ownership of mobile phone services. After the 1997 collapse, most
companies (but not AIS of Shin Corp) solved their problems by rushing into
partnerships with forei gn enterprises. The limit on foreign ownership
was then suddenly set at 25%. This caught Thaksin’s major competitors on
the hop and scrambling for alternative financing. Just 3 days before the
sale of his Shin Corporat ion shares (nominally held by his children) to
Temasek Holdings of Singapore in February this year, the limit was raised
to 49%. Without this change in the rules, the deal, and the mega-profits
that Thaksin’s family made , would have been impossible.

[15] The Nation, 17 October 2005, available at www.geocities.com/changnoi2/conflict.htm.

[16] These were largely identified as people from rural areas. It is,
however, dangerous to assume a clear rural-urban divide in Thai society.
Millions of Bangkok residents, whether quasi-permanent, temporary or
season al, think of themselves as ’upcountry’ people. Geographical
mobility is very high in Thailand, something economic planners have relied
on. The rural population is seen as a giant sponge of cheap, unskilled
labour that c an be squeezed into factories and construction sites as
needed. And when the economy takes a downturn, such as in 1997, they are
expected quietly to go home and live off the farm.

[17] Whether they are qualified to do so or not.

[18] The last two were creations of the 1997 Constitution. The Constitutional Court deals with demarcation of responsibilities of other courts as well as constitutional cases. Th eAdministrative Courts allow citizens to sue the government.

[19] The reputation of the Constitutional Court has never recovered from their 2003
decision on Thaksin’s declaration of assets. Seven judges said he was
guilty of hiding huge numbers of shares in the names of his driver,
gardener and maid, four said he was not guilty and four said they didn’t
feel they should be deciding the matter.