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Three major cases went before the Constitutional Court last week. Of the most anticipated cases — the potential dissolution of the Move Forward Party and ouster of Prime Minister Srettha Thavisin — we received word that the court will need more time for deliberation next month.
The Constitutional Court did make one major ruling, however, on the legality of the Senate election procedures. The court had received a petition claiming that the law governing how the new Senate is to be elected violated the 2017 constitution. The constitution had mandated that the election process should be as insulated as possible from political influence; the petitioners claimed that the rules did not observe the spirit of the charter. The Constitutional Court’s opinion is that the election procedures are legal. This now opens the way for a new upper house.
The current election process for the Senate has never been tried before, and it has been described as perhaps the most complicated method for selecting any body of parliament in the world. It is so byzantine that I will refer you to Dr. Napon Jatusripitak’s excellent explanation for a full explanation rather than attempt to summarize it here.
The gist of it, though, is this. Previously, the Senate had been fully appointed, handpicked by members of the previous military government. Now aspiring candidates were asked to apply, and they then went through multiple rounds of selection at the district, provincial, and (soon) the national levels. The candidates vote amongst themselves.
It is a system has created perverse incentives for the Senate candidates. Instead of survival of the fittest the rule drafters have instead built an electoral arena more suited for the endurance of the weakest. Why support a stronger candidate if you are a weaker candidate, who will minimize your own chances of getting through?
While fame and fortune is not necessarily a benchmark for senatorial capability, it is indeed odd that in the provincial round, many of the most well-known candidates did not make the cut. Former senator Rosana Tositrakul, for example, who once received the most popular votes in a senate election, was voted out. The same went for other famous politicians and media personalities.
One unsuccessful candidate, Nuttaa Mahattana, put it well: “When people choose a candidate, they choose based on who they want to do the job. When candidates pick amongst themselves, they will often vote with the goal of taking themselves as deep into the selection process as they can. How would I eliminate other contenders? Who can I trade votes with?”
One consequence of the fall of so many “big names” is also the difficulty in predicting how the next Senate will behave. Until we see the final list of candidates who made it through, and examine closely their previous backgrounds, we cannot speak with any certainty on how the next Senate will lean.
There is already speculation, however, that former prime minister Somchai Wongsawat, a brother in law of Thaksin Shinawatra, is a possible candidate for Senate President. As it stands, he has a good chance of becoming a senator, having won the most votes in Chiang Mai so far.
If that scenario is realized, that would indicate that the next Senate is likely to have a very different makeup to the current one. It could be friendlier to the current government, several of whose members were behind the ethics case against Srettha.
Gone would be the final vestiges of former deputy prime minister Prawit Wongsuwan’s decisive influence over the upper house.
That would also mean that the last of the conservative parties’ institutional privileges outside the lower house itself would be negated. The Senate’s power to join with the House of Representatives in selecting a prime minister has already expired. But even with its more limited powers, the current Senate was still able to delay legislation, if it chose. And more importantly, any attempt at constitutional reform required the consent of at least a third of the Senate. Will the scope for change become wider with this new upper house?
Fundamentally, however, one thing is unlikely to change about the Senate. Questions will continue to be raised about its legitimacy. We have heard rumors of how there has been attempts by candidates to vote as a bloc in support of another candidate, or how some may have entered the election merely to vote for someone. This is currently under investigation by the Election Commission. Through a process that is intended to create an apolitical chamber, we may still end up with what Thai conservatives used to deride as a “husband-wife” parliament — two bodies in parliament that behave similarly.
But that derided parliament was fully elected. Another husband-wife parliament, if it is created, will have been crafted by a self-selecting group of candidates that is unlikely to have been representative of the entire population. As Dr. Napon put it, “being neither directly elected nor appointed, the new Senate will likely betray the liberal aspirations for it to act as a beacon of democracy and the conservative ideals for it to serve as a bastion of virtuous and technocratic rule by seemingly apolitical and impartial ‘good people’ situated above the fray.” In short, it is likely to be an upper house that pleases nobody.