Issue Briefing No. 58

Freedom of Party Formation
through the Constitutions ofThailand
Parin Jaruthavee（Researcher, King Prajadhipok’s Institute）
March 22, 2024

Abstract
The freedom of party formation is fundamental to democratic values but isoften

overlookedinThailand. Contraryto

itsintended purpose

ofsafeguarding rights and freedoms, the Thai constitution inadvertentlyimpedes these very principles. By imposing stringent requirements for party
formation and facilitating easier dissolution, the constitution not onlyimposes burdens on political parties but also restricts the freedom toestablish them. Such constraints significantly undermine Thai citizens’
political participation and representation. Furthermore, the ease of party
dissolution manipulates Thailand’s political context, and is often used as a
strategic chess piece in the broader political game. This dynamic further
complicates the political landscape in Thailand and highlights the need forconstitutional reform to truly reflect the voice of the people.

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Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58

Introduction
When discussing freedom, one usually thinks of the freedom ofexpression, freedom of property, freedom of assembly, and other various
types of freedom that one’s respective country would allow through rights.
Nonetheless, one of the most important freedoms, in a democratic country,
is the freedom of party formation. Since modern democracy is characterized
by the selection of people’s representatives through an election, party
formation plays a crucial role in the modern democratic system. It can also beseen that political parties not only allow people to participate in politics but
also allow people to communicate between the government and society –expressing their needs through representatives.1 Thus, the freedom of party
formation must be granted and respected in order for the people to havesomeone, or a certain party, that represents their political beliefs – and thisincludes minorities being represented as well.
In Thailand, the freedom of party formation plays a crucial role as, inthis author’s view, it is among the initial rules determining the “playing field”
that affects each and every political party. By using the constitutions (or thegame manual, in this metaphor), the constitution drafters have graduallyexcluded the people by limiting their method of expressing political will andcreating a high barrier to party formation. Data from the Varieties ofDemocracy (V-Dem) shows that Barriers to Party’ formation, which is one of theindicators of Vertical Accountability and describes the extent to which
parties have the freedom to form a party, has decreased throughout the years
as a new constitution is enacted.

1Yigal Mersel, “The dissolution of political parties: The problem of internal democracy”,

International Journal of Constitutional Law, 4-1 (2006), pp. 84-113.

2

Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
Graph 1: Freedom to Party Formation

Source: Michael Coppedge, John Gerring, Carl Henrik Knutsen, Staffan I. Lindberg, JanTeorell, Nazifa Alizada, David Altman, Michael Bernhard, Agnes Cornell, M. Steven Fish, Lisa
Gastaldi, Haakon Gjerløw, Adam Glynn, Sandra Grahn, Allen Hicken, Garry Hindle, Nina
Ilchenko, Katrin Kinzelbach, Joshua Krusell, Kyle L. Marquardt, Kelly McMann, Valeriya
Mechkova, Juraj Medzihorsky, Pamela Paxton, Daniel Pemstein, Josefine Pernes, Oskar
Rydén, Johannes von Römer, Brigitte Seim, Rachel Sigman, Svend-Erik Skaaning, JeffreyStaton, Aksel Sundström, Eitan Tzelgov, Yi-ting Wang, Tore Wig, Steven Wilson and DanielZiblatt, “V-Dem [Thailand 1990-2022] Dataset v12”, Varieties of Democracy (V-Dem) Project(2022). (https://v-dem.net/data_analysis/CountryGraph/ Accessed on 2024-01-31)

In this context, this paper will analyze the reasons for such decline,
where the minimum number of initiators has been increased and therequirement for party dissolution has been raised. This creates a huge burden
for political parties and also poses a question of whether the freedom ofparty formation has been respected if parties are easily dissolved.

The Rights and Freedom Stipulated under the Constitution
Rights and freedom are two words that have their own meaning. Theword rights can mean that one has the ability or entitlement to perform or

not perform certain actions or to be or not to be in a certain state. In otherwords, rights can allow their holders freedom – meaning one can be free todo or not to do a certain action. With that said, although the words aredifferent, there is a connection between them. A legal system is set in placein order to distribute the various types of freedom, and a country’s

3

Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
constitution stipulates the rules of who and what shall be free.2
Constitutional rights and freedom in Thailand can be seen in Article
25 of the 2017 Constitution which states that:“…a person shall enjoy the rights and liberties to perform any

act which is not prohibited or restricted by the Constitution
or other laws… Any right or liberty stipulated by theConstitution to be as provided by law, or to be in accordancewith the rules and procedures prescribed by law, can be
exercised by a person or community, despite the absence ofsuch law, in accordance with the spirit of the Constitution...”It should be noted that the 2017 Constitution retains the main ideaof rights and freedom of the 2007 Constitution, which itself amended the1997 Constitution, allowing rights and freedom to be exercised despite theabsence of law (The 1997 Constitution only stipulates that rights andfreedom shall be in accordance with the law).
Nonetheless, it can be seen in the 2017 Constitution, as in otherconstitutions, that various rights have been stipulated, such as the right tolife and personal liberty, personal rights, freedom of expression, academic
freedom, freedom of property, freedom of assembly, and other various typesof freedom, including the freedom of party formation.3

Freedom of Party Formation
Freedom of party formation is based on the principles of freedom ofassociation, freedom of expression, and freedom of assembly. These threeprinciples were stipulated in the 1948 Universal Declaration of Human Rights
which binds the country to be obligated to comply with the Declaration
legally.4
With that said, we shall examine the freedom of party formation
stipulated in the Thai constitutions and the related law called the Organic
Leif Wenar, “Rights,” The Stanford Encyclopedia of Philosophy (2023).
(https://plato.stanford.edu/archives/spr2023/entries/rights/ Accessed on 2024-01-31)
3Pongtawat Boonpitak, “Sitti seriparb kong puangchon chow thai tam rattatammanoon hangratcha-anajak thai puttasakarat 2560 [The Rights and Freedom of Thai people according tothe Constitution of the Kingdom of Thailand B.E. 2560],” Law Department of the Secretariatof the House of Representatives (N.D.).
4Gianni Buquicchio and Janez Lenarcic, “Guidelines on Political Party Regulation,” OSCE
Office for Democratic Institutions and Human Rights (2010).
2

4Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
Act re. Political Party.
Table 1: Each Constitution and Organic Act Re. Political Parties Comparison
Constitution

199720072017

A person shall enjoy the liberty to unite andA

personshallform a political party for the purpose of making

enjoy the liberty

political will of the people and carrying out

to unite and form

political activities in fulfillment of such willathrough the democratic regime of government

underwith the King as Head of the State as provided

democratic regime

in this Constitution….

5

politicalparty
theofgovernment

with the King as
Head of State, as
provided by law….6

Organic

1998

2007

2017

At least 15 people7

At least 15 people8

Act Re.
PoliticalEstablishment

NumberofAt

InitiatorsParties

Dissolution

Numberleast

peopleofThenumberMembers andmembers

Branchesless than 1510

ofbecomesThe

numbermembersofThe number ofbecomesmembers becomesless than 5,000 for

less

than

5,000

one entire year12for

more

thanAndninetyAnd

Within
from

500

9180

the

date

consecutively

days
thedaysWithinRegistrar

has

fromacknowledgedtheRegistrar

180

the

datedaysthehassince the date it
hadbeenregisteredas14

formationofaacknowledged

political party, suchformation

political

politicalparty

shalltheofaparty,

suchpolitical party

And

5Article 47 of the 1997 Constitution and Article 65 of the 2007 Constitution
Article 45 of the 2017 Constitution
7Article 8 of the Organic Act Re: Political Parties 1998
8Article 8 of the Organic Act Re: Political Parties 2007
9Article 9 of the Organic Act Re: Political Parties 201710
Article 65 of the Organic Act Re: Political Parties 1998
12
Article 91 of the Organic Act Re: Political Parties 2007
14
Article 90 of the Organic Act Re: Political Parties 201765

Freedom of Party Formation through the Constitutions of ThailandaIssue Briefing No. 58

prepare to have notpoliticalshallWithin one year

less

prepare to have notfrom the date thepolitical

than

5,000party

members…

and shall

less

have

least

one

members…

ofthepolitical

party

shall

Registrar,

thepolitical party in each

have

least

one

political

party

Region.11

branchineachshall…

gather at

least

5,000

at

branchthanatregion.13

5,000
and

the

party

isregistered by themembers,andshall have at leastten

thousandmembers

within

four

years

fromthedate

thepolitical

party

isregistered by theRegistrar…
arrangeandpoliticalparty branches in
each

and

every

region under theregions

andprovinces

list

specified by theCommission15

Source: Created by the author.

It can be seen that there are two huge problems that are highly visible
in these laws. First is the problem of requirements for party formation. The
minimum number of initiators has increased significantly, from 15 to 500
individuals. Moreover, there has been a change in the number of members as
well. This results in a heavy burden on a political party or even people whoshare the same political ideology, and who would like to form a political party.
The intention of the 2007 Organic Act, which has increased the number of11Article 29 of the Organic Act Re: Political Parties 1998
Article 26 of the Organic Act Re: Political Parties 2007
15
Article 33 of the Organic Act Re: Political Parties 2017136

Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
members, was to support large parties by dissolving and preventing theformation of minor parties; therefore, the threshold of party members has
been increased.16 This amendment has also remained and, in fact, increasedin the 2017 Organic Act. Speculations on the reasons such a thresholdremains high suggest that Thailand still requires a candidate for member ofparliament (MP) to be a member of a party, that there are still political party
subsidies, and that there is a lack of trust in independent MPs because they
may betray stakeholders easily if they are not a member of a party.17
Second is the problem of proportionality. The result of not complying
with the stipulated minimum number of members and branches is thedissolution of the party. The question is, whether such an act shall result in
the dissolution of a party and whether conditions pose a high threat todemocracy to the degree that a party shall be dissolved. By considering
Article 11 of the European Convention on Human Rights which includes
dissolution or prohibition of political parties, it can be seen that the Court
has dealt with only a handful of cases, in which the Court has been very strict
with the dissolution of political parties. This may be due to the criteria
developed by the Court which highlights the importance of political parties.
This is because political parties play a crucial role in providing pluralism,
through freedom of expression and freedom of association to function, in a
democratic society. Thus, dissolving a political party, if not done reasonably,
could prevent democracy. This brings us to the second question, that is, what
is considered as appropriate dissolution of a political party? According toArticle 11(2) of the European Convention on Human Rights, no restriction shallbe placed on the exercise of such rights, unless prescribed by law and suchdissolution is necessary in a democratic society. 18 This has also beenreflected in the Guidelines on Prohibition and Dissolution of Political Parties

iLaw, “Yorn doo godmai pakgarnmeung tung pak yoob pak gun yang rai? [Looking back topast Organic Acts, how party has been established and dissolved?]” (September 2016).
(https://www.ilaw.or.th/articles/16600 Accessed on 2024-02-01)
17
Chaiyan Chaiyaphorn, “Kuan mee garn gumnod jumnuan samachik nai garn tungpakgarnmeung rue jodtabian pakgarnmeung rue mai? [Should there be requirements inregards to the number of member in establishing a political party or in registering a politicalparty or not?]” (August 2023). (https://www.thaipost.net/columnist-people/434421/ Accessed on2024-02-01)
18
Sungjin Kim, “Dissolution of Political Party: Criteria adopted by the Korean Constitutional
Court and Lessons from the European Court of Human Rights,” Journal of Korean Law, 15(June 2016), pp. 297-323.
167

Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
and Analogous Measures adopted by the Venice Commission at its 41st
plenary session that 1) dissolution of political parties may only be justified in
the case of parties which advocate the use of violence or use violence as apolitical means to overthrow the democratic constitutional order, and that 2)
dissolution of political parties should be used with utmost restraint.19 A Thai
scholar has also shared the same view that the dissolution of political parties
should only occur in two circumstances: a political party acts against theConstitutional Monarchy (in which case another measure, i.e., ordering to quit
the act, shall be taken prior to dissolving the party); or the party decides toterminate itself in accordance to the regulations.20
In this author’s view, answering the first question, the requirement
stipulated in the Organic Act setting out the minimum number of members
and branches, is not against or related to any democratic principle; therefore,dissolving a party based on such requirement is not proportionate, nor thelast resort to solving the problem (if the number of members really is aproblem to the lawmaker). Although one may argue that the dissolution is inaccordance with the law, there is a difference between legality andlegitimacy. On further speculation, an MP who has won an election is forced
to remain in a political party; in other words, if a party is dissolved due to nothaving enough members from the date the party is registered and the MP
cannot join other party within 60 days, from the date the party has been
dissolved, such MP will lose their status. In other words, this would mean thatan MP who is already a representative voted by the people will lose theirstatus simply because they do not have a party, although they represent thepeople. With that said, the validity of their status depends not only on thepeople who have elected them but also the conditions made by thelawmakers. It is worth highlighting that the 2017 Organic Act re. Political Party
was enacted by His Majesty the King according to the advice of the National
Legislative Assembly (Parliament). The Act was enacted on September 30,
2017 and the National Legislative Assembly at the time was appointed on theadvice of the National Council of Peace and Order according to Article 6 ofthe 2014 Constitution (Interim).
It should be noted that the condition for a party to be dissolved inEuropean Commission for Democracy through Law (Venice Commission), Guidelines on
Prohibition and Dissolution of Political Parties and Analogous Measures (Strasbourg: Council
19of Europe, 10 January 2000).
20Kittisak Noochaikaew, “Garn yoob pakgarnmeung tam rabob godmai thai [Dissolution ofPolitical Parties According to the Thai Legal System],” Bot Bandit [Scholar’s Articles] 78-4
(2022).

8Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
Thailand, as stipulated in this article, does not touch upon other conditionsof party dissolution under the 2017 Constitution, the Organic Act re. PoliticalParties, and the Organic Act re. Election of Members of the House ofRepresentative, which has a total of 23 causes that can dissolve a politicalparty. This leads to another problem, dissolution of a political party by theConstitutional Court.

Conclusion
As mentioned earlier in this paper, the freedom of party formation isessential to the democratic system; however, such freedom can be easily
overlooked. This means that the laws and regulations in regard to party
formation can be amended without the mass public noticing. Moreover, notonly is such freedom crucial to a democratic society, as it allows all to berepresented, but it also plays a vital role in the “political game” as it is thefirst rule every player must follow.
Examining the Thai constitutions shows that the minimum number ofmembers and the conditions stipulated by the law, which, if not met, may
result in party dissolution, have been raised higher than ever before.
These conditions, which are not about a party posing a high threat todemocracy, can reduce political pluralism, as it will be hard for minorities toform a party due to the number of members, and an individual cannot run for
an election independently but must be affiliated with a party. By contrast,
the laws and regulations should only be a tool that supports and allows
people to form a party conveniently, and party dissolution should only be
used for cases against the constitution or against democracy, because suchlaw relates to the rights and freedom of the people directly.21
We must remember that democracy combines the words people(demos) and rule (kratos); therefore, in a democratic society, people are able
to have a voice and take an active role in ruling their own country.22 With that
said, the freedom to be able to represent one’s political will and beliefs is afreedom that must not escape notice because not only does it combine aperson’s freedom of expression and freedom of assembly, it is also essential

Kachen Pannuma, “Panha tang godmai nai garn judtung sinsparb lae yoob pakgarnmeung[Legal Problems in Establishment, Termination, and Dissolution of Political Parties],” Warasarn
rajabhat krunggao [ARU Research Journal] 8-2 (2021), p. 115-124.
22National Geographic, “Democracy (Ancient Greece),” National Geographic (N.D.)(https://education.nationalgeographic.org/resource/democracy-ancient-greece/ Accessed on
2024-02-05)
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Freedom of Party Formation through the Constitutions of ThailandIssue Briefing No. 58
to the democratic system as a whole.

Parin Jaruthavee profile
Parin Jaruthavee is a young scholar who is passionate about developing her
country further with Asian values. She is currently working at King
Prajadhipok's Institute, which is the think-tank of the Thai parliament. Her
main focus lies within the realm of blending philosophical concepts withpractical practices, e.g., the concept of legitimacy and the ConstitutionalCourt, accountability and the electoral management body, and others. Parinhas completed her LL.B. from Chulalongkorn University, Thailand, and pursued
her LL.M. at Peking University, China.

10Freedom of Party Formation through the Constitutions of Thailand