Constitutional amendment in Thailand needs consensus first

Although few Thais believe in the supremacy of a constitution, most show great affection for drafting a new one. Many are convinced, without reasonable proof, that a decent constitution is a good legal solution to the country’s present political problems: an inefficient government, a politicised judiciary, and the army’s interference. Lately, a call to rewrite another constitution is gaining traction. What began humbly as a flash mob against an extension of the government’s Emergency Decree in July has blossomed into widespread protests, attracting tens of thousands. Angry youths are spearheading the movement, demanding an overhaul of power relations in Thailand, including the army and the monarchy. While the government of General Prayuth Chan-ocha, the former junta leader and current prime minister, is not willing to entertain their two other demands—to stop harassing pro-democracy activists and dissolve parliament—it has conceded to the idea of amending the 2017 constitution.

The 2017 constitution was always destined to be a stillborn, dead long before its enactment. The pro-democracy camp despises it as the fruit of the 2014 coup, prepared with no meaningful public participation. But even junta supporters never intended the document to be the supreme law of the land or a social contract, rather merely an instrument to trick the public and maintain power. The overly complicated electoral system the constitution installed has now served its function of weakening the political party system and bringing Prayuth an electoral victory so he can continue to reign. Its replacement is only a matter of time.

But constitutional amendment can be far from straightforward. One can easily get lost, especially in such tumultuous times when many parties wish to get involved, some with less benevolent intentions. It’s worth asking if this round of amendments will lead to a fairer, more participatory and more rational constitution. Have we correctly identified the cause of Thailand’s political crisis?

Earlier this year, the Lower House agreed to establish a committee to review the constitution, a strategic move to lessen pressure from growing discontent. The committee has made no progress, with government MPs foot-dragging. So far, the most ambitious move to overhaul the constitution has come from the opposition coalition, led by Pheu Thai Party, which has already submitted a motion to amend Section 256. Section 256 concerns the amendment procedure itself. The opposition’s goal is to change the rules governing the establishment of a constitutional drafting council (CDC), which unrealistically require a supermajority across both houses. A CDC must complete its job within 150 days and the amendment draft must be voted on in a national referendum. While the opposition has not revealed exactly which sections of the constitution it wants to amend, it has stated clearly that it would not amend the parts on the monarchy.

Another move has come from iLaw, an NGO working on the internet and law, which is campaigning for 50,000 signatures to submit its own motion. iLaw’s plan is twofold. In the short term, it is focusing on eliminating the legacy of the most recent junta, the National Council for Peace and Order (NCPO), by revoking: (1) transitional provisions which allow the Senate to vote for the PM (2) the National Reform Plan that limits the elected government’s ability to make policy (3) the amnesty clause which shields the NCPO from legal liabilities (4) watchdog agencies appointed by the junta which have historically served to undermine elected governments. iLaw also proposes to amend Section 256. In the long term, it hopes to establish a CDC to rewrite the whole constitution.

So far, every party is contemplating a CDC as the desirable model. CDCs first emerged in the drafting of the 1997 Constitution, a model praised for being an inclusive and participatory process to which the success of the 1997 Constitution is often attributed. Yet CDCs were also adopted during the drafting of both the 2007 and 2017 Constitutions, final products which are clearly less successful.

Perhaps Thais are mistaking the symptom for the cause. The 1997 Constitution’s success was due to the fact that in 1992, after ousting a military dictatorship, Thais reached a consensus that they desired a more democratic charter. The 1997 Constitution, which was actually drafted by elite academics, was destined to be successful regardless of the CDC because the consensus of what Thais wanted was clear. The loss of that consensus also explains why the CDCs of 2007 and 2017 failed miserably, even with national referendums. Without a democratic consensus, a CDC would only be a gateway for a few ambitious men to enter politics.

A more immediate concern is getting the Senate to approve a motion to amend the constitution. Under Section 256, an amendment requires a supermajority across both houses and at least 84 votes from senators. The 250-strong senate was handpicked by the junta loyal to Prayuth, and will undoubtedly veto any amendment that jeopardises its master. Moreover, besides seeking only a simple majority for the amendment procedure, many advocating for constitutional amendment wantx the appointed senators out immediately. The Senate will be reluctant to forfeit its power to vote for the prime minister

Indeed, how to remove, while simultaneously appeasing, the Senate has become a controversial subject within the anti-government camp. Pheu Thai refused to include a plan to terminate the Senate in its proposal, arguing strategically that the Senate would never approve. Meanwhile the more radical Move Forward Party, the descendant of the dissolved Future Forward Party, along with most protesters, demand such a measure.

What about the substance of the proposed amendments? Pheu Thai has never outlined what it wishes to amend, deferring decision-making to the prospective CDC.

A simpler and more rational electoral system, plus a more transparent senate, would definitely be good first steps. All politicians love the game of designing a new electoral system and calculating how many more seats they would have won under the new model. But they should be aware that the Thai political crisis goes much deeper. In addition to the electoral process, the constitution must impose more accountability on the judiciary and watchdog agencies, which have run amok in recent years. There is no point in winning an election when the government can be toppled at the whim of these guardians.

Protesters are also demanding reform of the monarchy, to impose limits on the crown’s involvement in politics and management of its wealth. According to protesters, the palace always sides with the military dictatorship and conspires against democratisation. But the opposition coalition clearly wishes to stay away from the topic of the monarchy for fear of the establishment’s retaliation. Only the Move Forward Party exercises its right to address the issue, a decision causing further tension within the coalition, as well as among its supporters.

Considering all the controversies besetting these amendment plans, a new constitution may have less impact on the ongoing crisis than Thais hope. The process will take several months, buying the government valuable time to exhaust protesters. The politicised judiciary and the rogue military will be little effected by new electoral rules since they enjoy impunity and operate outside of electoral constraints. Still, as long as the amendment debate continues, there is hope that Thailand can transition out of the current political conflict without violence.

In the long run, a new constitution is inevitable but the present timing is not right. Before a political consensus over new power arrangements is reached, any constitution will eventually be abolished by another camp. The pro-democracy wing should not forget the other two demands of the protesters: that the government stop harassing dissidents and that Prayuth resigns. Prioritising these demands can ensure tangible and meaningful changes in the direction of democracy are possible, alongside the quest for a new constitution.