A Quiet Constitutional Referendum

Little buzz around the question of drafting a new constitution

Image Credits: กสิณธร ราชโอรส (via Wikimedia Commons)

Despite the fanfare surrounding the general election, the lead-up to the constitutional referendum has been relatively quiet.

Back in September, I wrote about Bhumjaithai kickstarting the process of constitutional reform as a result of the confidence and supply agreement between Bhumjaithai and the People’s Party. That process later collapsed over disagreements between the two parties on the specifics of the amendment process, which led to the early dissolution of parliament. But the cabinet has still managed to approve and schedule the holding of a first referendum on the same day as the general election, February 8th. The question that will be posed to the voters is straightforward: “Do you agree that there should be a new constitution?” Voters can then vote yes, no, or abstain.

It’s been a messy road since. There was previously confusion about whether or not political parties were allowed to advocate for a certain position in the constitutional referendum, to the point where party leaders hesitated to express any opinion during the Thai Rath debate. This stemmed from when the secretary-general of the Electoral Commission warned candidates in December “not to say whether people should vote yes or no.” However, after debate about whether or not this was legally correct, the Electoral Commission has clarified that after reviewing the legal fine print, advocating for a position on the constitutional referendum is indeed permitted.

Perhaps because of parties’ reluctance to take clear stances, it doesn’t feel like there’s been much buzz around the referendum at all. (Another reason: the most controversial provision of the 2017 Constitution allowing the Senate to vote for a prime minister has expired, likely leading many voters to wonder if there is still a point in expending so much oxygen on the issue). Things may now change, however. We have now seen more parties take clearer stances on constitutional reform in this election. Seven parties recently attended a panel discussion on constitutional amendment to affirm their support for drafting a new constitution. The parties that attended were the People’s Party, Pheu Thai, Bhumjaithai, the Democrat Party, Prachachart, Thai Sang Thai and Polawat.

The presence of most of these parties is expected, but perhaps it will be surprising to some that Bhumjaithai attended. The PP’s Parit Wacharasindhu said that it is “a good omen that political parties with differing opinions on many issues have the same position on drafting a new constitution.” Bhumjaithai was represented by Nikorn Chamnong (who recently moved from Chart Thai Pattana and was previously that party’s spokesman on all constitutional issues), who said that the party endorses constitutional reform and advocates for voting “yes” in the referendum to kickstart the process. Another party that has taken a clearer stance is the Democrats. Deputy leader Sathit Wongnongtoey echoed Abhisit Vejjajiva’s public stance that the Democrats would like to see a change to how members of the Senate are selected and more independence for constitutional agencies.

Interestingly, the Electoral Commission has also circulated reasons for and against constitutional reform.

Benefits:

1. Drafting a new constitution will allow people to participate in the drafting of a constitution, allowing for a constitution that is truly democratic. This is because the 2017 Constitution was drafted when the country was governed by a government that had not been elected by the people and the legislature was appointed, meaning that some of its provisions do not adhere to democratic principles.

2. The 2017 Constitution has several provisions that is problematic in its enforcement. Amending the constitution by drafting a new constitution will allow these provisions to be fixed at the same time, ensuring that the constitution is complete and consistent.

Drawbacks:

1. Drafting a new constitution may lead to more political conflict than simply amending the constitution clause by clause, because amending clause by clause limits the debate to a narrower scope and makes it easier for every side to find a solution.

2. Drafting a new constitution can lead to waste in spending related to holding referenda.

Even with these efforts to raise awareness about the referendum, it may still be the case that turnout for the constitutional referendum is noticeably lower than turnout for the general election. On January 4, one day before registration closed, around 1.5 million people had registered to vote early in the general election, but only a little over 600,000 people had registered to vote out of constituency in the referendum. Meanwhile, former election commissioner Somchai Srisutthiyakorn has noted that the Electoral Commission currently plans to have voters show their ID to first receive the general election ballots and vote, then show their ID one more time to receive the constitutional referendum ballot. I do wonder if this will lead confused voters to simply leaving after voting in the general election and thus unintentionally abstaining from the referendum.

One thing that’s worth repeating that even if voters approve of drafting a new constitution in this referendum, there is no guarantee that the process amounts to anything. The Constitutional Court previously ruled that two more referenda are needed (one on the “methods and contents" of drafting a new constitution, and one to approve the final draft). While the Court had said that the first and second referenda can be combined, the fact that only one question will be asked on February 8th guarantees that two other separate votes will be needed.