Amending Thailand’s 2017 Constitution: More Tunnel than Light
The appointed Senate is the biggest but not the only obstacle to amending or replacing Thailand’s 2017 Constitution.
In the 2019 Thai elections, a number of parties campaigned in favour of amending the controversial 2017 Constitution. These included two parties that then joined the ruling coalition, Bhumjaithai and the Democrats, and the two main opposition parties now, Phuea Thai and Move Forward.
On 11 March, the Constitutional Court of Thailand moved this process forward. In a one-paragraph ruling, the court agreed that parliament (the House of Representatives and the Senate) has the power to draw up a new constitution but, only after a national referendum is held to ask Thais whether they want a one. If the people so want, then parliament can draw one up, but a second referendum must be held to agree to, or not, what would be Thailand’s twenty-first constitution.
This court ruling, which the Thai House of Representatives and Senate requested, led the parliament six days later to proceed with the vote on the third reading of the pending constitutional amendment bill that called for an elected 200-person constitutional drafting assembly. The bill, however, failed to get the support of a majority of House of Representatives (251 out of 500 members) and at least one-third of senators (84 out of the 250-member Senate) as required by Section 256 of the 2017 constitution. This rejection disappointed the opposition and ruling coalition parties that had campaigned in favour of this issue.
Three lessons can be drawn from the court’s one paragraph ruling and the subsequent parliamentary vote.
First, the Senate is the drama queen in this story. In this third reading, the amendment bill received votes of support from 206 parliamentarians and only 2 of the 250 senators. 4 senators voted against the bill while 84 abstained. 127 senators, the majority, chose “no vote”. The Senate appointed by the former ruling junta under General Prayut Chan-ocha will never vote against their own interest and pass a motion that could dissolve their political body. Given the power of the Senate over the process of amending the constitution, prospects for the democratic constitution campaigned for in 2019 are uncertain. Many political experts and politicians argue that abolishing the current undemocratic Senate is the only way out of Thailand’s political trap.
The Senate appointed by the former ruling junta under General Prayut Chan-ocha will never vote against their own interest and pass a motion that could dissolve their political body.
Second, many members in the House of Representatives were insincere in their campaign pledges to amend the 2017 constitution. Most members, including those from Phuea Thai, chose either to abstain from casting their vote during a two-hour roll call in the chamber of parliament for the third reading or to simply avoid the roll call by remaining outside the chamber. Many lawmakers from opposition parties did not want amendments to the constitutional sections related to monarchy. Moreover, to vote in favour of the amendment bill threatened the dissolution of some of these parties given the 11 March ruling that a national referendum must be held before parliament could rewrite the constitution.
Some, including members from the Bhumjaithai and Chat Thai Phatthana parties in the ruling coalition, therefore, staged a walk out. Chada Thaiset, a Bhumjaithai member, said the parliament is a jokers’ parliament and identified the whole scenario as absurd before walking out. Many ruling coalition parties’ members said that they were disappointed with the vote, which rendered the first two readings of the amendment bill a waste of time. Opposition parties counter that this is simply a ruse by these coalition parties to protect themselves against public criticism.
Third, referenda matter. To amend the constitution, referenda are required. A new national referendum bill is now being considered in the parliament. However, if a referendum is conducted on constitutional amendments, recent history suggests that it will be difficult to obtain the 50 per cent threshold required, especially if the government bans public discussion of the amendments as it did in 2016. As a result, the opposition is proposing an alternative way to amend the contentious constitution through a section-by-section approach. This sectional approach would not require referenda. Their aim is to revise or remove Section 272, according to which the 250 appointed senators can take part in the parliamentary voting for a prime minister. Equally important, the electoral system that favours the junta’s party also should be revised.
After the recent sinking of the amendment bill, it will take some time to restart the process of constitutional amendment. If the constitution cannot be changed by this section-by-section approach or by a new one, the next election will be contested under the 2017 constitution giving the advantage again to Prayut Chan-ocha and his allies. The senators hand-picked by the military will stay in place, the ruling coalition will likely remain intact, and the prime minister will be selected by undemocratic means again. The light has dimmed and the tunnel lengthened for Thailand to have a truly democratic constitution.
Punchada Sirivunnabood was Visiting Fellow at ISEAS – Yusof Ishak Institute.