Hopes for a new and more democratic Thai Constitution rose this week when the referendum bill sailed through Parliament.
The government-sponsored bill paves the way for a public vote on whether the population wants a new Constitution to be written by a charter drafting assembly (CDA). The new bill was passed after the Constitutional Court ruled in March that a referendum must be held before any overhaul of the charter.
But despite the developments, observers remain skeptical that the dream of a new charter will come true. Previous moves to amend the charter began in late 2019, but failed due to delaying tactics deployed by Palang Pracharath MPs and backed by senators who feared losing their power.
Critics doubt that a referendum on whether people want a new charter will be held under the new law, pointing out that the government may again try to block a rewrite by refusing permission to hold the plebiscite. Major obstacles lie ahead given the power to grant such a referendum lies in the government’s hands.
Stithorn Thananithichot, director of the Office of Innovation for Democracy at King Prajadhipok’s Institute, observed that the bill only unlocked the first step to a referendum: the next needs a majority agreement from both MPs and senators to trigger a request to the Cabinet to organize the plebiscite. The Cabinet then has the final say on whether the referendum should be held.
Complete rewrite ‘impossible’
The opposition Pheu Thai and Move Forward parties have joined with Re-Solution, a civil group seeking 50,000 public signatures, to design a draft bill for an elected CDA that would rewrite the Constitution and eradicate the legacy of the 2014 coup-makers. Critics say the current Constitution, drafted under Prayut Chan-o-cha’s military regime, was instrumental in helping the coup leader-turned-premier and his backers retain power after the 2019 general election.
But Parliament is unlikely to pursue wholesale charter change any time soon since the focus for the next few months will be on making minor amendments or changes article by article – neither of which require a public endorsement.
Yuthaporn Issarachai, a political scientist from Sukhothai Thammathirat Open University, believes such a referendum may never happen and says even if it is held, there is zero chance that a complete rewrite of the charter would sail through Parliament.
“The [referendum] bill offers little hope of seeing the legacy of the coup-makers [the current Constitution] being eliminated,” said the analyst. It was unlikely that the powers-that-be and the 250 junta-appointed senators would vote for a new charter that would curb their powers, he pointed out.
For an amendment bill to pass the first reading, it requires votes from more than half of the two Houses combined (at least 376 parliamentarians), as well as a “yes” vote from at least 84 of the 250 senators. To pass the third reading, the amendment bill also needs support from at least 376 lawmakers, including at least 84 senators and 43 opposition MPs.
However, Yuthaporn did not rule out the possibility of a charter rewrite, but said it would require strong social forces to pressure the powers-that-be and senators. Those social forces would be difficult to muster given the current level of polarisation in the country, he added.
Thai parliament accepts only one draft charter amendment of the 13 debated
Thailand’s joint parliamentary session voted last night (Thursday) to accept, in principle, only one of the thirteen draft constitutional amendments – to bring back the two-ballot system. The draft, proposed by the Democrat Party, passed in its first reading, after debate over Wednesday and Thursday, by 552 votes to 24.
Why was the referendum bill issued?
While the 2017 charter stipulates a referendum is needed for certain charter changes, the Constitutional Court ruled in March that a national vote was also necessary on any move to rewrite the entire charter. The court ruled that Parliament had the authority to draw up a new Constitution, but two referenda must be held — first to ask whether people want a new charter and second to endorse the finished charter draft.
After gaining Royal endorsement, the referendum law will outline five cases in which a plebiscite may be held:
First, on amendments to the Constitution.
Second, on issues deemed important enough by a Cabinet resolution.
Third, on issues for which the law requires a referendum to be held.
Fourth, on issues that Parliament agrees should go to a referendum, via the Cabinet.
Fifth, when at least 50,000 voters ask the Cabinet to hold a plebiscite.
How will vote be conducted?
The bill authorizes the Cabinet to approve any referendum and hands the task of supervising the vote to the Election Commission (EC).
It also, for the first time, allows Thais living abroad to vote in a referendum.
The ballot can be conducted via mail or electronic means.
A viable result requires a voter turnout of at least 50 percent and a simple majority for or against the question.
Freedom to campaign, but heavy penalties
The bill permits people, political parties, and any other groups to campaign ahead of a referendum as long as they abide by EC regulations.
The law also imposes penalties of one year in prison and/or a fine of up to Bt20,000 for those who disrupt the work of the referenda committee and staff. Those who obstruct or disrupt the referendum itself, offer benefits to sway voters, or intimidate them to vote or not to vote face one to 10 years imprisonment and/or a maximum fine of Bt200,000.
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Reasons to be pessimistic
Critics are pessimistic that the bill allowing voters to have a say in charter change will break Thailand’s prolonged political deadlock, saying it could merely aggravate the country’s existing deep divisions.
Thai voters voted yes in the 2007 and 2016 referendums on Constitution drafts written by junta agencies following coups. Opponents of the drafts were barred from campaigning ahead of both referendums.
Whether the referendum bill would help break Thailand’s prolonged political impasse depended on the success of abolishing the junta-sponsored 2017 charter and rewriting a democratic Constitution, Stithorn said.
“If a majority of Parliament votes to initiate the referendum and the Cabinet gives the green light, it will help [unlock the political stalemate],” he said.
Free and fair campaigning for the referendum is also important, he added.
“The government should allow both sides – for and against – to express and publicize their views equally and fully. If the powers-that-be suppress or gag opponents, the public may not accept the vote result.
“Previous referendums held in our country were on a make-or-break issue, the supreme power, or charter drafts. So the powers-that-be think they cannot suffer defeat,” said the analyst.
By Thai PBS World’s Political Desk
