It is May 2024, but as far as the Thai Senate is concerned, it might as well be March 2000. Then, as now, a novel system of selecting senators was rolled out to purge the chamber of politics and fill it with enlightened experts. Then, as now, the Election Commission failed to clarify the regulations about the selection of candidates and campaigning in a timely manner and faced court challenges to its interpretation of the election law. Then, as now, political parties were waiting in the wings, finding ways to support their favored candidates behind the scenes. With all that’s happened in Thai politics in the last 24 years, how have we come full circle like this?
Thailand’s Senate is a peculiar institution. Originally intended as a way for incumbent regimes to pack the legislature with their supporters, the Thai establishment has spent the whole of the 21st century trying to turn the institution into the moral backbone of the Thai body politic. The project began with the “people’s constitution” of 1997, in which the Senate was a keystone in the drafters’ efforts to impose order on the freewheeling world of democratic politics. These drafters envisioned the Senate as both an impartial referee and as a supervisor of the constitution’s other impartial referees: the new independent commissions tasked with governing the country’s elections and ferreting out corruption and human rights abuses. Senators would be able to counterbalance some of the “excesses” of the democratically-elected House of Representatives by delaying or amending bills, and ensure the impartiality of the independent commissions by appointing their members.
To fulfill this referee role, Senators needed to have the popular legitimacy that came from elections while staying aloof of the traditional world of Thai electioneering. They also needed to be “good” people, free from any venal interest in the outcome of the processes they were overseeing. To ensure that the right people were able to win elections without dirtying their hands in the process, an elaborate system of restraint was put in place on potential Senators. They were prohibited from being members of political parties or government officials, or being involved in any business that might benefit from government construction contracts or natural resource concessions. To limit the importance of money and ensure that only qualified, well-known candidates could succeed, campaigning was limited to self-introductions, introductions by the state, and the use of posters to advertise the candidate.
This whole system backfired spectacularly when it was first put to the test with the Senate election of March 2000. From the start, ambiguity and contradictory interpretations by the Election Commission (EC) confused the issue of who could run in the election, which required parsing by the Constitutional Court. Once the election got underway, the ban on campaigning resulted in candidates from established political dynasties beating out the sorts of non-partisan “good people” the constitution’s drafters had intended to fill the chamber. Moreover, the ban on campaigning only prevented legal campaigning methods. Vote buying was widespread and the EC had to rerun elections multiple times to achieve acceptable results, resulting in 76 provincial races ballooning into 306 individual contests.
Rather than becoming a chamber of nonpartisan experts, the Senate became a “spouses’ chamber.” According to estimates from the time, as many as three-quarters of the Senators elected were connected to one political party or the other. The body quickly split into pro-government and pro-opposition factions, with the pro-opposition faction rapidly reduced to an insignificant minority by the various incentives offered by Prime Minister Thaksin Shinawatra government, who was elected in 2001, to Senators willing to side with him. After the ouster of Thaksin via a coup d’etat in 2006, the drafters of the new 2007 constitution tried to limit the penetration of politics into the Senate by making slightly less than half of Senators appointees, but the body yet again split into government and opposition factions. After the 2014 coup, the new junta dropped the whole pretense of the Senate as a neutral body and, in the military-drafted constitution of 2017, returned it to its original purpose of stacking the legislature with its supporters for a “transition period.”
With that transition period set to expire later this month with the end of the current Senate’s term, the hunt for non-partisan “good men” is starting up yet again. To keep out the “politicians,” an even more complex, less democratic method of selecting Senators has been developed, ahead of the Senate selection process that will take place in several stages next month. Now, the candidates are also the electorate. Candidates from 20 professional and social groups will select five top contenders from within their respective groups in each district. These contenders will then be further narrowed down to three via a second round of “inter-group” selection, where candidates are arranged into randomized divisions of three to five groups who then vote on candidates outside their own respective groups. Successful candidates then proceed to the provincial level, where the process repeats again, and subsequently to the national level, where a modified form of the process will result in the selection of 10 Senators from each of the 20 groups involved. To ensure a body of “wise men” candidates are required to be at least 40 years of age and possess 10 or more years of experience in their field. A 2,500 baht (around $67) registration fee serves as a de facto poll tax, ensuring that not just anybody can participate in the selection process.
Like the systems that came before it, there are manifold ways in which this new system could backfire. With inter-group selection, candidates will in many cases not have sufficient background knowledge to evaluate the experts they are expected to vote on from other groups. Combined with the short time provided for candidates to learn about each other at each stage, the chances of candidates having little to go on when casting their votes is high. Moreover, a smaller electorate makes it easier to buy a consequential number of votes, an issue that raised its head during the 2018 process to select candidates from different professional groups from which the ruling junta would choose Senators.
While at the district level, the number of candidates could be enough to dilute the effectiveness of smaller scale vote buying – the EC chairman has indicated that he anticipates over 100,000 applicants – the number of participants is necessarily drastically reduced in later stages. If any irregularities arise in the selection process, it remains unclear how the issue will be resolved. In the old system of direct elections, if there was election fraud or problems due to ambiguous rules, the EC could simply rerun the election in question. With so many different interdependent parts in the current system, such a simple solution would be close to impossible.
Thailand’s persistent failure to create a non-partisan upper house is hardly unique. Every one of the (admittedly few) non-partisan upper houses currently in existence has the same failings. Ireland’s formally non-partisan Senate has struggled for nearly 100 years with limited public legitimacy due to indirect elections and a failure to keep the influence of political parties out of the body. Slovenia’s non-partisan, corporatist National Council was infiltrated by political parties almost immediately after its creation and has remained a partisan body ever since. Indonesia gave up entirely on preventing political parties infiltrating its regionally-based upper house – the Dewan Perwakilan Daerah – and now allows party members as candidates.
There is simply no way for constitutional engineering to banish politics from a legislative body. No matter what the selection process is, parties in the lower house have access to too many means to incentivize and punish Senators for the bulk of them to become uninvolved in politics, even if they had started out being neutral. It only took Thaksin a couple of years to co-opt the first elected Senate, as Senators began to see that the business, financial, and political interests of both themselves and their extended families were better served by cooperation with the government. Why should we expect that this new Senate will react any differently when approached with the same offers? At the end of the day, Senators are politicians no matter how you select them, and Thailand will eventually have to come to terms with this reality.