EC preparing recommendation on Paiboon case

EC preparing recommendation on Paiboon case

Legal loophole might let microparty list MP keep seat after party is dissolved and he joins PPRP

Paiboon Nititawan's decision to move to the Palang Pracharth Party has spaked a debate on whether it is alright to take advantage of a legal loophole to secure a place in a bigger party. (Photo by Patipat Janthong)
Paiboon Nititawan's decision to move to the Palang Pracharth Party has spaked a debate on whether it is alright to take advantage of a legal loophole to secure a place in a bigger party. (Photo by Patipat Janthong)

The Election Commission office is preparing recommendations for the five commissioners on the issue of MPs transferred from a dissolved party.

A source told the Bangkok Post that as of now the EC office was of the opinion that in such a case the votes of an MP or party should not be added anywhere or it could affect existing list MPs of the party he joins.

The issue emerged after Paiboon Nititawan, leader and only MP of the People Reform Party, one of the 10 microparties with support below the 70,000-vote threshold, filed a request with the EC to dissolve his own party this week.

The constitution allows an MP to find a new party under two circumstances — when the party is dissolved by the court or when he has been voted out of his own party for some reason. It doesn't stipulate whether the protection extends to MPs who voluntarily dissolve their own parties.  

Mr Paiboon, a shrewd lawyer who helped bring down the Yingluck Shinawatra government, said the party had to be dissolved because its executives had other work to do and could not fulfil some of the legal obligations to keep the party running, such as a requirement to find enough members and set up offices in all provinces. As for the 880,000-baht in aid provided by the Political Party fund to all parties, the party would return it to the EC.

Mr Paiboon said he would join the Palang Pracharath Party (PPRP) since it has the same policy of instilling in Thais Lord Buddha's teachings.

But the dissolution of a party and the transfer of an MP have an unforeseen ripple effect on the electoral system and other parties.

First is the issue of where the votes for that MP or his party should go, especially if he is a party-list MP as in Mr Paiboon's case. With a single ballot, it is impossible to know whether people voted for an MP or his party.

Then there are complications each time a by-election held. When a Pheu Thai MP for Chiang Mai was disqualified by the EC for giving money to a monk, a by-election was held for his constituency.

While a Future Forward candidate won the seat, the votes other parties got were different from the last time and the EC had to recalculate the total votes for all parties that ran in order to allocate their list MPs. The result was that the MP of a microparty was kicked out after being sworn in just three days earlier, and PPRP and the Democrat Party each got one more party-list seat.

The recalculation will have to be done each time an MP is disqualified and a by-election is held, and the EC can keep doing it 12 months after the election, or until March 24, 2020.

In the case of Mr Paiboon, the burning question is where the 45,000 votes for his party should go to and where Mr Paiboon should be placed in the PPRP hierarchy.

If the votes go to PPRP, they may not be enough to warrant another list seat for PPRP and the last MP currently on its list could lose his status, replaced by Mr Paiboon. 

Then there is a valid argument that doing so would distort the intention of voters, who chose Mr Paiboon or his party, not PPRP.

On this issue, the EC office believes the votes for Mr Paiboon's party should not be added anywhere because the party was dissolved.

But then Mr Paiboon would still keep his list MP status and a party that takes him must sack the last MP on its list to make room for him because the number of list MPs across all parties must not exceed 150.

"This means any new member of a party will take advantage of the existing MPs of that party," the EC source said.

The EC office will make the recommendation to the commissioners who will have a final say.

Sharing its view was constitutional expert Jade Donavanik, who warned that the other nine microparties might use the same strategy — dissolving their own parties to secure a place in a bigger party.

This can technically be done even though party mergers are prohibited during a parliamentary term.

"[By dissolving his own party] it now appears Mr Paiboon will always be guaranteed a seat while the existing list MP he replaces is not," Mr Jade said.

"You have it all in the name of the law and don't lose anything. That's too much."

But another constitution writer has a slightly different view.

Udom Rat-amarit said People Reform's votes must accompany Mr Paiboon everywhere and when it comes to allocating a list seat, it should be Mr Paiboon who loses the status, not the existing list MP currently last on the list. 

"In case of by-elections, the votes for Mr Paiboon's party must be used in the recalculation after each by-election yet to come or there will be an extra number of MPs and the system is not proportional as intended," he said.

He admitted the law did not prohibit a dissolution when members could not continue political activities. "It's now on the Constitutional Court to decide. When we drafted the laws, we didn't foresee such complexities," he said.

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