reform

There has been much talk of reform in Thailand, much of it spurious, while various factions furiously battle each other for power.

However there is a reform that has the potential to break this cynically propagated cycle of violence and conflict; this reform is the addition of the ‘None of the Above’ option to the ballot in all elections, with the clear provision that if this choice received a majority of the valid votes cast then that election must be re-run (real NOTA).

On doing some research based on the recent Indian Supreme Court (SC) judgment that a NOTA option must be present on recently introduced electronic voting machines (EVMs); I found that there is an interesting legal case to be made that argues that the ‘real NOTA’ option is a legal and logical pre-requisite for any fair and free democracy.

To elucidate further let us go into the background of the SC judgment

In September 2013 the SC judged that that EVMs must include a ‘NOTA’ option to retain the right of voters to continue to voice their will through a ‘negative vote’; in part based on 2 UN documents, namely the Universal Declaration of Human Rights (UDHR) and the International Covenant of Civil and Political Rights (ICCPR)

Space precludes me from going into detail, but for example Article 19 of the ICCPR was cited which guarantees the right to free expression.

Further the Supreme Court noted the usefulness of ‘negative voting’ in its promotion of a healthy democracy.

However the NOTA option on the EVM is only the ability of a voter to ‘abstain’ by choosing NOTA; this abstention though noted, will not affect the final result of the election. In my view this will mean that the NOTA option cannot achieve the potential described in the Supreme Court ruling below:

55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systematic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.

For NOTA to have a substantive impact as described above it must be able to affect the results of an election; politicians are used to widespread approbation; so a symbolic NOTA will be shrugged off or used in some type of political game and have no substantive positive changes.

And further to that a symbolic NOTA provides little incentive for disillusioned voters to express their voice as there is no clear and unambiguous consequence to that choice; only insecurity and uncertainty if symbolic NOTA is chosen widely. Insecurity and uncertainty is the worst type of result in an election; so undermines the very purpose of NOTA, by discouraging disillusioned voters from participating in the voting process or choosing NOTA.

Below I argue how the UNHDR and the ICCPR have wordings that strongly imply that NOTA that would affect an election result is a legal and logical pre-requisite in any functioning democracy. By NOTA affecting an election I specifically mean that if the NOTA option achieves the majority of valid votes cast the election must be run again (real NOTA).

There are some practical and logistical issues to address in having such a system and solutions all are outlined on this website: www.notauk.org and I can go into them in a follow-up article if there is any interest.

First a quick introduction to the 2 documents I have cited.

The first is UNHDR – ‘While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter, which is binding on all member states’……many international lawyers,[22] believe that the Declaration forms part of customary international law

The second is ICCPR – Thailand has signed and ratified this covenant (and so has most of the world)

From the UDHR the Article 21 is relevant to NOTA in my opinion:

1. Everyone has the right to take part in the government of his country directly or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

From ICCPR Article 25 is relavent:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Taking each section I have highlighted in turn:

тАв ‘freely chosen representatives’ – Can representatives be said to be free chosen if they cannot all be rejected? To me it very much sounds like real NOTA is required to fulfill this provision.

тАв ‘ the will of the people shall be the basis of the authority of the government’ – the will of the people can only be expressed through their consent, if people cannot withhold their consent, then they cannot give their consent, therefore the will of the people has not been expressed and so the government has no basis for its authority

тАв guaranteeing the free expression of the will of the electors – We are guaranteed ‘real NOTA’ as a valid option on the ballot.

To me the interpretation of ‘the will of the people/electors’ is the most critical element. What does ‘will’ mean?

From the Oxford dictionary the meaning of ‘will’ relevant to us is: expressing desire, consent, or willingness:

It’s clear that consent is a vital component of will. How can any government that is based on the will of the electorate not have their consent? Once we can establish that consent cannot be given without ‘real NOTA’ on the ballot the Thai government is bound by the UNDHR and ICCPR to provide it.

Let me clarify how consent is linked with ‘real NOTA’ i.e. if NOTA achieves a majority of the valid votes cast the election must be held again.

In a democracy regardless of for whomever we vote, we consent that the winner of that election will represent the whole of that electorate. However if we do not have the means to withhold consent, it is impossible to give consent.

How can consent be given if it cannot be withheld?

The only fair and practical way consent can be withheld is by having ‘real NOTA’ on the ballot that ensures the election is held again if it achieves a majority of valid votes cast. (If consent can be established by ticking a box on a ballot, then withholding consent must be by a method equivalent to giving consent to ensure fairness)

For example if I look at the list of candidates on the ballot and I find that none of them are worthy of my vote, I have no means of expressing that opinion; so the winner of the election is representing me without my consent. In a democracy this is a clear violation of my rights and of everyone who thinks the same way I do. The only way the free expression of my will through equivalent free voting procedures can be expressed is through the ‘real NOTA’ option.

In my view NOTA is not a refinement of a democratic voting system, it is a pre-requisite to any fair and equitable voting system that allows the free expression of the will of the electorate.

More importantly its presence has the potential to improve the quality of Thai political representatives and their governance to a level hitherto unseen in Thai politics, as its presence will have to be accounted for in all calculations by political parties and their candidates. Until now politicians only have an incentive to be the least worst in an election at most, with ‘real NOTA’ present they must strive to be the best.

Is this not a critical objective if Thailand is to progress as a nation?

Even worse, the lack of ‘real NOTA’ means that unscrupulous candidates can make the entry of good candidates difficult by turning politics into a cesspool within which mainly only thugs or those who are willing to deal with thugs can survive.

If voters are given real power in the voting process it encourages their engagement, not just in the voting process, but in all aspects of the political process. They have now become active participants in their governance rather than passive recipients of governance that is on offer to them on a particular day.

Just as importantly it has the potential to break the current cycle of violence as the power the various factions are fighting over has now been handed over to the electorate. This is a true revolution, as now power has been passed out of the hands of the unelected elites and politicians and given directly to the electorate of Thailand who are now in full charge of its destiny.

Is this not the fairest reform of them all?

Rohin Vadera is the boyfriend of a Thai lady.