Electoral reform bill that was passed by parliament on Monday due to continued failure to make a quorum, is very likely to be reviewed by the Constitutional Court. If it is struck down, it could leave Thailand facing a constitutional crisis or holding the next General Election under the 2019 provisions and regulations.
Parliament, on Monday, failed to reach a quorum on a bill governing the next election and the selection of House of Representative MPs. The bill was considered finalised by the President of the Assembly Chuan Leekpai under its originally drafted terms which were to be sent to the Prime Minister’s Office. It will then be sent to the Election Commission for review. The law, however, is almost certainly going to be challenged before the Constitutional Court before the end of this month, a situation that could either result in a political vacuum and crisis or a reversion to the former one ballot voting and electoral process used in the March 2019 General Election.
The Thai parliament, on Monday, made a last-ditch effort to pass an amendment to section 24(1) of a new electoral bill for members of the House of Representatives which was passed in July and would have adjusted the formula for selecting MPs for party list seats in the next House of Representatives.
The change had run into problems in recent weeks after Thailand’s Minister of Justice Somsak Thepsutin pointed out in late July that under a two-ballot system proposed in the law, it would be impossible to use a divisor by 500 as there were only 100 seats.
Last General Election used a one-ballot process which resulted in many smaller parties gaining seats
In Thailand’s last General Election held in March 2019, a one ballot system was used with 150 party list seats reserved, a system which saw the country’s leading Pheu Thai Party gain zero party list seats due to its success at constituency level leading to a very fractured parliament and ultimately, a current coalition government with no less than 18 different parties or political groups.
Such a fractured parliament and the ability of 250 senators, chosen overwhelmingly by the last junta, to vote on the selection of the next Prime Minister under the 2017 Constitution for the last time, is now the most plausible route for the current Prime Minister General Prayut Chan ocha to retain power given current opinion polls and surging support nationally for the Pheu Thai Party.
New electoral law passed a first reading in September 2021 which offered a fairer basis for larger political parties to translate votes to party list seats
Since then, a new electoral law was passed in September 2021 which would radically alter the outcome of any proposed General Election and give the opposition Pheu Thai Party a stronger chance of translating its popular support into parliamentary seats.
Poll supports retention of the one ballot election process which would torpedo Pheu Thai landslide hopes
However, from April this year, the steering committee finalising this draft bill through its second and third reading in parliament began to raise issues and proposed changes to the provision.
July 6th surprise as the law’s formula for calculating party list seats changed to a divisor of 500 from 100 flying in the face of other reforms in the provision
This saw the party’s divisor formula switched from 500 to 100 in a surprise move on July 6th last after which it became apparent that the change was impossible without reverting back to a one ballot process.
Several meetings of the parliament called to perfect the law have failed due to the absence of a quorum as MPs for both the ruling Palang Pracharat Party and the Pheu Thai Party appeared not to respond to calls to order from the sitting chairman of the parliament in respect of a quorum.
On Thursday last, the final day for consideration of the bill, a joint sitting of parliament consisting of senators and members of the House of Representatives again failed to achieve a quorum resulting in this Monday’s special joint session convened by the President of the National Assembly of Thailand (as the joint sitting is formally called).
This was the last day of a 180-day deadline for finalisation of the bill before it was due to be passed back for processing by the Prime Minister’s Office.
Pheu Thai vowed not to participate in making a quorum for Monday’s parliamentary vote as it held the law to be unworkable and unconstitutional
Over the weekend, the Pheu Thai Party had reiterated that it would not participate in the assembly to make a quorum.
The party claimed that its legal advice was that the proposed bill, as altered by a divisor of 500, was both unworkable in practical terms and unconstitutional.
On Sunday, Theerarat Samretwanit, a Bangkok Pheu Thai MP told reporters that the party could not confirm it would help make a quorum at the sitting on Monday.
The MP, at the same time, feared that if the legislation was simply dropped, a political vacuum would ensue with no viable basis to hold the next General Election due before March 2023.
She also expressed concern that, at some point, the House of Representatives may be dissolved and a caretaker government might take over.
Before the quorum was called on Monday by President Chuan Leekpai, there were reported to be 365 MPs and Senators in the chamber but only 320 responded
On Monday, before parliament opened at 10.04 am chaired by Mr Chuan Leekpai, the chairman explained that he understood that some members would not be attending and urged other MPs and senators present not to criticise them as their decision not to assist in making a quorum was a principled one based on their legal advice concerning the legislation before the assembly.
When he opened the sitting at 10.10 am and called for a quorum, despite a reported 365 MPs and senators being in parliament or the vicinity when the sitting commenced comprising 200 senators and 165 MPs, only 320 responded to the call to make up a quorum leaving it short of the 353 required.
It is understood that the Democrat Party and the Bhumjaithai Party were in attendance and the Deputy Leader of the Democrat Party, Ong-art Klampaiboon, despite the speaker’s exhortations not to have MPs and senators criticise each other, castigated the public representatives who failed to participate.
Democrat Party in a scathing rebuke
‘The public has been dissatisfied with their performance. They were elected to represent people in parliament but they have failed to carry out their duties,’ he declared. ‘The collapse of the sessions has ruined the reputation of parliamentarians as a whole and those who were absent must provide an explanation why.’
The President of the Parliament, Mr Chuan, outlined the technical details of the law and indicated that if the session did not proceed, the law as formatted in its first draft, proposed by the cabinet and approved by the parliamentary drafting committee would be considered finalised.
This provision would see 400 constituency seats with 100 party list seats as well as a two-ballot election process with the total number of party votes tallied using the second ballot divided by 100 to calculate a quota and each party then being allocated seats according to the number of quotas it had won in the national poll.
Reformed electoral law hands the Pheu Thai Party the ability to gain more seats in the next election
Under this system, the Pheu Thai Party is expected to gain as many party list seats in the next election, pro rata to its constituency seat tally with the system, therefore, taking away the advantage that a one ballot process with a 500 divisor formula for party-list seats gave smaller parties over it.
This is what saw so many small parties win seats in the 2019 General Election at the expense of bigger parties but most spectacularly, at the expense of the Pheu Thai Party, Thailand’s biggest political group which gained no party list seats at all in 2019.
Mr Chuan repeatedly called for no criticism to be levelled at the MPs and senators who did not wish to take part in Monday’s sitting: ‘I’ve always said that we’ve been working well for three years because we work together. There may be some conflicting opinions like today. But how to complete the process of the legislature is the result of our majority opinion. This is respectful. And once again, I emphasise that those who did not come to the meeting for a reason should not criticise each other, because it will be misunderstood. It is not a matter of laziness. But it’s a matter of legal opinion that wants the law to fall. It’s a way to not complete a quorum. But today is the last day, don’t make it a problem.’
What happens next, the bill goes to the Prime Minister’s Office and then the Election Commission but a hearing before the Constitutional Court is likely
Somchai Srisutthiyakorn, a former election commissioner and a key member of the parliamentary drafting committee for the electoral law, has consistently expressed his disappointment at the failure of the parliamentary process over the last months to finalise a more comprehensive electoral reform bill.
The Seri Ruam Thai Party member and electoral law expert then explained that the law must now be presented to the Election Commission who will have 10 days to study the proposed bill and approve it.
After this, if approved, the Chairman of the Election Commission will pass it back to the Prime Minister who must wait for 5 days before passing it onto the King for his signature and promulgation.
During these five days, leading up to September 1st next, if more than 10% of senators and MPs request the bill to be reviewed by the Constitutional Court, then the process must wait for the judgement of the court to be handed down before the bill becomes law if approved by the judges.
Fears of a political vacuum or crisis
The law may also be altered or struck down altogether by the court.
It is now considered highly likely that the electoral law as originally proposed and supported by the Pheu Thai Party and the Palang Pracharat Party, will be challenged based on its constitutionality.
If the bill is subsequently struck down by the court, it may lead to a serious constitutional crisis or it could simply mean the next General Election will be conducted under the same laws and regulations as the March 2019 poll meaning a one-ballot process and smaller parties taking more seats.