Here we go again
How can you be pro-democracy and anti-elections?
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 complaisant 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 days5, how voters could even learn who the candidates in their constituencies were, nor what this does for democracy.
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 star6. 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 politicians 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 an d 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 cen tral 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 on e 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 2005, 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.
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 being 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."
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 benefit. 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. Thailand 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.
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.
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 it 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
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-Thaksin 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 during this episode were not even accepted for a hearing, a decision that left some legal experts speechless.  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.
rights. Chanida Bamford is a senior associate with Focus on the Global South.
 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 widespread 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 manoeuvres 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.
 It has since been renamed as the 'People's Assembly for Democracy'
 The Economist, Vol 379, No 8472, 8-14 April 2006.
 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.
 Technically, less than 2 days, since campaigning is not allowed on polling day.
 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.
 The process worked like this. First, there was a rule tha teach 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, a nd 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 w as 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.
 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).
 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?
 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 judged to be defamation.
 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.
 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.
 With Sorakon Adulayanon, Matichon Weekly, Volume No. 1112, December 10-16, 2001.
 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 Corporation 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.
 The Nation,17 October 2005, available at www.geocities.com/changnoi2/conflict.htm.
 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 seasonal, 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.
 Whether they are qualified to do so or not
 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. The Administrative Courts allow citizens t o sue the government.  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.