All eyes on court as Thai charter-change battle approaches D-Day

A man holds a mock tank as he cheers on people taking part in a demonstration calling for the creation of a new constitution in Bangkok on March 13, 2020. (Photo by Romeo GACAD / AFP)

The current junta-sponsored Constitution is among the most condemned charters in Thai history, yet also arguably one of the most difficult to amend.

The push for charter change received another blow on Tuesday (Feb 9), when lawmakers voted 366:316 to seek a Constitutional Court ruling on whether the ongoing parliamentary process to pave the way for a charter rewrite is constitutional.

Earlier this week, a parliamentary panel completed its review of two charter amendment drafts passed in the first reading last November.

The panel agreed to set up a Constitution Drafting Assembly (CDA) comprising 200 members directly elected by voters nationwide to rewrite the charter.

Lawmakers are expected to deliberate on the revised bill in the second reading on February 24-25. The third reading will be held 15 days later with voting expected in mid-March.

Arguments for and against

The motion questioning the constitutionality of the rewrite was proposed by a group of senators and ruling Palang Pracharath MPs.

Most of the 366 votes in favour came from 230 senators and 113 Palang Pracharath MPs, while the rest of the ruling coalition – the Bhumjaithai, Democrat and Chartthaipattana parties – joined the opposition in opposing the motion.

The motion’s proponents claim the current Constitution allows amendment of its articles but does not permit the drafting of a new charter as it was endorsed in a national referendum.

“Since voters endorsed the current charter, it cannot be rewritten even by an elected CDA until a fresh referendum is held to ask people if they agree with the amendment,” they told Parliament.

Opponents, however, argue that no move is being made to write a new charter since the first two chapters on general provisions and the monarchy are being left untouched.

Observers say the court-review motion is just a tactic to delay or even block charter change by a government and junta-appointed Senate that fear losing the power handed to them by this Constitution.

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However, critics doubt the charter rewriters will be free from political interference. Last November, lawmakers passed the two charter amendment drafts in the first reading. The drafts pave the way for a Constitution Drafting Assembly (CDA) to write a new charter, but stipulate that chapters on the monarchy and general provisions be left untouched.

What may happen

The court may reject the petition as the current Constitution does not clearly say whether such a petition should be filed before an alleged unconstitutional action occurs. If this is the case, then the draft bill must pass the third reading before a court review can be sought.

If the court accepts the petition, then a ruling should come in around 30 days.

If it rules that a new charter can be written, then parliamentarians can continue the process.

But if it rules that Parliament is not authorised to write a new charter, then the two drafts will be voided and the dream for a new charter will be shattered.

Motions that share the same principles as those that have failed to pass cannot be reproposed in the same Parliament session. So, if the drafts fail, lawmakers will have to wait until Parliament reconvenes in May to submit new amendment motions.

Far-reaching consequences

The request for a court ruling will delay the charter amendment process by at least a month, but other consequences of the ruling will be far more serious.

Piyabutr Saengkanokkul, secretary-general of the Progressive Movement and an advocate of charter change, points out that no matter what the court decides, the country’s constitutional system will be shaken.

He said if the court rules against writing a new charter, then it means the country will be ruled under the current supreme law indefinitely. The most lawmakers can do is amend individual articles, unless a coup overthrows this charter, he said.

However, if the court finds the ongoing charter amendment process constitutional, then leaving Chapters 1 and 2 untouched will become a precedent and any future moves to write a new charter with changes made to the first two chapters will be deemed unconstitutional, he said.

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Countries have adopted their own ways of dealing with politicians deemed corrupt, or criminal, or being threats to national security. Thailand, under a much-lauded “People’s Charter” promulgated in 1997, introduced the National Anti-Corruption Commission, the Constitutional Court as well as a special section in the Criminal Court to handle political office holders.

Constant delays

Since Prime Minister Prayut Chan-o-cha retook office in 2019, the opposition has made several moves to amend a charter it calls “undemocratic”, but all have been blocked by the government and Senate.

In December 2019, a House panel chaired by Pirapan Salirathavibhaga, adviser to Prayut, was established to study which parts of the current Constitution should be amended and how. The panel was established in response to a motion submitted by the now-defunct Future Forward Party.

Then in September 2020, another parliamentary panel, chaired by Palang Pracharath party-list MP Virat Rattanaset, was set up to study whether six charter amendment drafts should be accepted in their first reading.

The six proposals to amend the Constitution followed mounting pressure from youth-led protesters calling for Prayut’s resignation, a more democratic Constitution and reform of the monarchy.

In November 2020, a panel was set up to review the two amendment bills that passed the first reading.

Those two drafts are very close to amending the 2017 Constitution that is at the heart of Thailand’s political impasse.

But their fate is now hanging in the balance.

By Thai PBS World’s Political Desk

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