One of the biggest arguments for changing article 237 of Thailand’s constitution is it punishes the entire party for the acts of one or more people. Looking at this at face value, most would agree this is wrong. But when you start to analyze it, you may find yourself changing your mind.
First we must accept that nothing is perfect and we always seem to settle for second best. Punishing a group of people for the acts of one is what we tend to do naturally. So why should we criticize legislation that does just that. Perhaps it is knowing it is morally wrong to do so but we can not stop ourselves from doing it. Perhaps somehow it is tied to our survival instincts or sheep mentality. There could be any reason or combination of reasons why we tend to scrap the entire lot for one bad one.
If you take a look at industry and quality control, the goal is to eliminate bad products by taking corrective action. There is a global program that is tied to this called ISO. Simply put say what you do and do what you say to standardize procedures. There is no need to scrap the entire lot, only the parts that are bad. There is no built in prejudice with this method, but the persons who’s wallet is taking a hit may have other opinions.
In real life that is not what we do. Possibly the biggest example is how we view the Muslim faith. It goes without saying the vast majority of terrorist are Muslim, and they have little regard for others who do not see their way. However that small percentage of Muslims is causing the entire world to see all Muslims in that light. As a result they are more subject to scrutiny.
The whole of Thailand suffered when Thaksin’s red shirts took to the streets and rioted. People changed plans even if they knew they would be no place near the hot spot. So the actions of a few punished all.
The entire pork industry is taking a hit from the swine flu even though getting the flu from eating properly cook pork or any food for that matter is impossible as cooking kills the virus. The list of examples goes on and on.
So now getting back to article 237, you may still see it as two wrongs do not make a right. So lets continue. Article 237 will only be a problem if one or more politicians wants to cheat. If they do not cheat then article 237 continues to sleep quietly in the corner bothering nobody. It will only wake when someone cheats. So essentially it is a non issue for honest politicians.
So what that means is the politicians who plan or want to cheat or fear someone in their party would cheat would take up issue with article 237. However in each case it encourages self policing so the party will survive. So essentially article 237 is encouraging the same quality control measures as found in industry. Internal quality control measures will need to be taken to see that the potential cheating politician is not allowed the chance to cheat. So the party must adapt something along the lines of an ISO quality control program. The ultimate beneficiary of this is the whole of Thailand as they are the end user of the product produced by the elections.
So as you can see article 237 is a bit like a surgeon operating on a cancer patient. Even the best surgeon must cut away some healthy tissue to get all of the cancer. If the cancer is not removed eventually the patient will die from it. So when you look at it that way, article 237 does not look that bad at all.
1.) “Internal quality control measures will need to be taken to see that the potential cheating politician is not allowed the chance to cheat. So the party must adapt something along the lines of an ISO quality control program.”
What if party leaders have already tried its hardest to ensure that everyone respects the rule, yet a rogue member of the party still breaks the rule? Would the well-intentioned leaders deserve to receive the same punishment as those who are directly responsible? You seem to imply that ‘quality control’ will always work perfectly and ensure a 100-percent result every time, but you seem to have overlooked the fact that we are all human beings and we are simply not capable of making sure things will always go according to plan.
Actually, even if the court is informed of the leaders’ effort to prevent rule-breaking, it will still have no choice but to order a dissolution and a 5-year ban. Why? This brings me to my second point…
2.) Article 237 leaves no room for interpretation. It specifies, in rigid terms, that an electoral crime committed by a party executive (or by someone else, but with the approval of a party executive) shall be treated as an offence committed on behalf of the whole party. When a party is found to break the electoral law, this shall be treated as an attempt to gain power using undemocratic means. The law further states that there is only one possible punishment for such a crime, which is a dissolution of the party and a 5-year ban for all of its executives.
In the above scenario, the law would not allow the court to take into account the fact that party leaders have applied internal control to prevent rulebreaking. The court would be given no choice but to hand out the ban and the dissolution.
Article 237 is so rigid that there is no possibility for the court to, for example, evaluate the severity of an electoral offence. Imagine there are two politicians. One is charged with vote-buying because s/he spent 100 baht bribing a local villager to vote fot him/her. The other is charged for spending 100,000 baht bribing local officials to rig the poll. Despite the obvious differences, both crimes are treated as equally severe under Article 237. Do you think this is fair?
3.) A party dissolution does not only affect ‘politicians’ and those who receive the 5-year ban, but it also hits ordinary people who support or have registered to be members of the party in question. Dissolving a party is akin to violating the rights of these people to organise politically and form a political opinion. In a democratic regime, sovereign power rests in the hands of the citizens. Rather than saving democracy, Article 237 may very well be undermining its core principle.
4.) “So as you can see article 237 is a bit like a surgeon operating on a cancer patient. Even the best surgeon must cut away some healthy tissue to get all of the cancer.”
The body and health of a cancer patient is a matter of his/her own concern (well, family, friends and relatives may count too), but political parties are a matter of national concern.