6 June 2024

Efforts to amend the post-coup Constitution so that a “more democratic” version can be written are picking up steam after the Cabinet decided late last month that three referendums will be required to forge a new charter.

On April 23, the Cabinet approved the recommendation of the government-appointed committee on studying approaches to amending the charter.

The panel, which is headed by Deputy Premier and Commerce Minister Phumtham Wechayachai of the ruling Pheu Thai Party, said the first referendum should be held in late July or early August this year and pose the question: “Do you agree to the drafting of a new constitution that leaves Chapter 1 on General Provisions and Chapter 2 on the Monarchy intact?”

If the majority answer “yes”, a second referendum will ask the public to approve amending Article 256 in the current charter to allow the formation of a constitution drafting assembly.

When the constitution draft is completed, a third referendum will ask voters if they approve it.

The Constitutional Court ruled in March 2021 that Parliament can arrange the drafting of a new constitution only after receiving approval through two national referendums – first to ask whether voters want a new constitution and then to ask if they accept the final draft.

The court said the national votes were required because the current charter was also approved by a public referendum.

However, the first referendum will likely be postponed from July or August because the 2021 Referendum Act must first be amended to remove the requirement for a minimum 50% turnout of eligible voters.

Veteran politician Nikorn Chamnong, as spokesman for the Phumtham panel, said last week the Cabinet would seek an amendment to the law so that only majority support from those who actually vote is required.

The coalition Chartthaipattana Party member said he expects the amended law to be promulgated in September and the first referendum to be held in December at the earliest or January next year at the latest. Relevant agencies must first discuss the budget and the date, which must be within 90 or 120 days of the law coming into force.

Tough task ahead

The 2017 Constitution was written under the post-coup junta and has no clause that allows the drafting of a new charter to replace it. In addition, it appears designed to make amendments extremely difficult.

To amend a clause, in this case Article 256, support is required from all sides involved – junta-appointed senators, the ruling coalition, and political parties outside of the government.

Proponents must first secure support from at least one-fifth of the House of Representatives, or 100 MPs, to submit a motion. The proposed amendment then requires backing from more than half of both Houses, or a minimum of 376 votes, to pass the first reading. Those votes must include at least one-third of all 250 senators or 84 votes.

To pass the second reading, the proposed amendment requires a simple majority from both Houses, or at least 376 votes.

In the third and final reading, majority support from both Houses is required, but this must include at least 84 senators and at least 20% of all MPs from political parties not represented in Cabinet or the posts of House speaker or deputy speaker.

Of the multiple previous attempts to amend “problematic clauses” in the charter, only one was successful.

In September 2021, Parliament approved a constitutional amendment bill to change the country’s election system, restoring the two-ballot vote and changing the composition of the 500-MP House of Representatives to 400 from constituencies and 100 from party lists. It is so far the only bill to have cleared the obstacle course set by the charter.

Controversial constitution

As Thailand’s current charter was written by a committee appointed by the junta National Council for Peace and Order, its detractors have called for a new one drafted by a popularly elected committee to better reflect democratic principles. Its supporters, meanwhile, point out that the charter contains clauses designed to reduce corruption by preventing corrupt politicians from gaining power.

In October last year, Prime Minister Srettha Thavisin appointed the Phumtham committee to draw up terms for a referendum to determine if the Constitution should be rewritten to allow a new charter to be drafted.

Coalition politicians in the Phumtham panel say the three referendums and the entire process associated with drafting a new charter can be completed before the end of this government’s four-year term. However, critics have slammed this timeframe, accusing the government of being insincere in its efforts to forge a new constitution and dragging its feet simply to remain in power.

‘Ambiguous’ referendum question

Critics are also unhappy that the government-appointed panel spares Chapters 1 and 2 from amendment in its referendum question. They argue that those who want both chapters to be altered will have no choice but to vote “no” despite their opposition to the current Constitution.

The People’s Constitution Drafting Group, an activist and civil society network campaigning for a new constitution, warned recently that the government would suffer fallout from the referendum question.

“If the result of this referendum blocks the path to a people’s constitution, it will be the government’s loss for not being able to follow through on its own policy.

The government will have to take responsibility by resigning because it means they are no longer trusted by the people,” the group said in a statement released last month.

Move Forward, the main opposition party, also called on the government to rethink the “ambiguous” referendum question.

It pointed out that it would be difficult to interpret the vote result since it would be unclear if a “no” meant the voters were against drafting a new constitution or just disagreed with the ban on changing Chapters 1 and 2.

By Thai PBS World’s Political Desk