Court set to rule on divisor decision
Special report: Calculating list MPs oscillates between 100, 500
published : 28 Nov 2022 at 05:22
newspaper section: News
The Constitutional Court is scheduled to rule this Wednesday on the validity of an organic bill concerning the elections of MPs.
The case was referred to the court for review after it failed to meet an amendment deadline in parliament and forced the adoption of a divisor of 100 in calculating list MPs at the next election.
At issue is whether Section 25 of the organic bill is constitutionally valid, as it might be in conflict with Section 93 of the charter, which governs how list MPs are decided.
The court is also asked to determine Section 26, which is linked to Section 131 in the organic bill which bars votes that have been dishonestly won from being tallied and counted.
Petitioners also questioned if the process in which the bill came to be adopted by parliament is legitimate.
They claim the draft law had not been vetted by parliament since it was adopted at the last minute -- after the previous version of the bill, which vouched for the use of 500 as a divisor, was technically dropped on account of its failure to be approved by parliament before the deadline.
What's at stake?
With the court ruling looming, the Bangkok Post spoke to political analysts and politicians to see what is at stake.
Jade Donavanik, a former adviser to the Constitution Drafting Committee, said if the bill is cleared by the court, everything will get back on track and a divisor of 100 will be used in the calculation of party list seats in the next poll.
If the court rules against the bill, a fresh drafting process will start and this time round the new bill will have to use a divisor of 500 in calculating party list seats.
Mr Jade said there is sufficient time for parliament to complete the drafting process before the House of Representatives completes its term in March next year if the court rules against the bill.
However, another possibility is that the court may make some suggestions and the bill will be revised by parliament.
This process will take less time though, he said.
"But the court tends to factor in politics...using political solutions. If this is the approach, I believe no matter what number is used, be it 100 or 500, it can clear the court. This can avert a political crisis," he said.
Large parties are known to support dividing the party-list votes by 100 to determine a party's share of list MPs, while small parties have rallied behind the list votes being divided by 500.
Mr Jade, who is also dean of the law faculty at Dhurakij Pundit University, said whether or not large parties like Pheu Thai can reap benefits from the use of a divisor of 100 and the two-ballot system depends on two factors.
First is that large parties must field as many candidates in the constituency system in order to win as many seats as possible.
They must not resort to a strategy known as taek bank pan (breaking a 1,000-baht note into smaller denominations) in which big parties opt not to field candidates in certain constituencies so as to make way for their political allies.
The other is that they must build party popularity to make sure that voters will vote for the party on both ballots -- one for constituency candidates and the other for the party list system.
People cast their votes for individual election candidates, but they may not necessarily like the party the candidates are affiliated with.
"If the voters split their votes between two parties, major parties don't really have an advantage," he said.
Olarn Tinbangtiew, a lecturer at the faculty of political science and law, Burapha University, said how the court rules is anybody's guess.
But no matter what the decision is, there will be implications for political parties, all of them now in election campaign mode.
A divisor of 500 will be advantageous to medium-sized and small parties, including the ruling Palang Pracharath Party (PPRP) and the United Thai Nation Party (UTN), also known as Ruam Thai Sang Chart, the Bhumjaithai Party and the Democrat Party.
In short, the current coalition parties are likely to benefit from using 500.
The main opposition Pheu Thai's chance of getting party list seats and securing a landslide victory will be at stake, he said.
If a divisor of 100 is used, it will be the other way round and Pheu Thai will emerge the winner in the next poll, he said.
"They [Pheu Thai] didn't anticipate the bill would be sent for judicial review when they backed the PPRP over the use of 100.
"The situation in the PPRP has changed and the party is likely to go from a large party to a medium-sized one if the prime minister moves away," he said.
Speculation is rife that Prime Minister Prayut Chan-o-cha will join the UTN led by Pirapan Salirathavibhaga, and several PPRP MPs are expected to defect too, making the PPRP a smaller party.
Olarn: Notes political implications
500 or 100, which one?
When asked which one, 500 or 100, will benefit the public, Mr Olarn said that in terms of democratic development and the learning process, the election system should be easy for the public to understand.
The use of 500 in calculation is complicated even though it is designed to be fair to small parties, he said, adding that he believes the majority of the public does not fully understand it.
Deputy Pheu Thai leader Sutin Klungsang said there are two major elements in the petition, which makes it hard for him to predict the court's ruling. One involves the content and the other deals with the scrutiny process.
He said if the content does not contradict the charter and the court sees the process in which the bill was adopted is not an attempt to stall the process and make the bill miss the deadline, the bill is on its way to becoming law.
However, if the court rules against the bill, it does not mean that the use of 500 must be automatically adopted, he said.
The drafting process is then back to square one and all sides must pull together to get the bill to clear parliament before its term ends.
Sutin: Cites two major elements
Spirit of the charter
Dr Rawee Matchamadol, leader of the New Palang Dharma Party which petitioned the court for a ruling, said the details of the court ruling will determine what the next step will be.
As for the contentious content, the organic bill may need minor revision or be rewritten entirely.
"If the ruling says it's against the spirit of the charter, the use of 100 is impossible. But they can seek amendments to the charter if they really want to push for the use of 100," he said.
On the scrutiny process, the court may find there is an attempt to make the bill miss the deadline and order a rerun of the problematic deliberation process, he said.
Dr Rawee insisted all the small parties will be wiped out if the 100 divisor is used in the calculation.
Nipit Intarasombat, deputy leader of the Sang Anakhot Thai Party, said if the bill is found to be against the spirit of the charter, an executive decree on the elections of MPs may have to be issued.
This is because he believes the remaining months are not enough to pass a new bill.
The most desirable option would be the court saying how to address the issue along with its ruling and this is better than the government issuing an executive decree, he said.
"The 100 divisor may give a certain party a landslide win while the 500 divisor may make it win fewer party list seats.
"I think we should stick to the charter's amendment which uses the 100 divisor, although we're a small party," he said.
Rawee: Small parties face threat