One of the key pledges that Prime Minister Anutin Charnvirakul has made, along with promising to dissolve parliament within four months, is that he will push forward constitutional reform. Today, I’ll take a look at what this process will look like.
The agreement signed between the People’s Party and Bhumjaithai states:
If the Constitutional Court rules that in drafting a new constitution, there must be a referendum before parliament can begin amending the 2017 constitution according to Section 256, the new Cabinet must organize such a referendum…that will lead to an elected Constitution Drafting Assembly quickly, no later than the date of the next general election.
On September 10, the Constitutional Court ruled that three referendums are required to successfully change the constitution. The first referendum is to ask whether or not a new constitution is desired. The second referendum is to ask about the methods and contents of the new constitution. Then, a Constitution Drafting Assembly (CDA) can proceed to write a new charter. The final referendum will then determine whether the Thai people approve of the new draft. The Court permitted the first two referendums to be combined.
However, the Constitutional Court also ruled that the CDA cannot be directly elected by the people, which throws a wrench into the agreement that the PP and Bhumjaithai has made (as the agreement explicitly states that the Cabinet should push forward the creation of an elected CDA).
We now have a situation where the two sides are at loggerheads. The PP’s proposed that an elected CDA is still possible, except that instead of sending the draft directly to a third referendum, it can first send the draft to parliament, who would then send it back to the people (hence circumventing the ruling). But I highly doubt that anyone currently in the Bhumjaithai government would be willing to be seen defying the Constitutional Court and a directly-elected CDA in any form would now almost certainly be a dead proposal.
Indeed, the new Minister attached to the Prime Minister’s Office, Paradorn Prissanananthakul, has now said that Bhumjaithai’s proposal for constitutional amendment has now been finalized. Paradorn said the CDA would be selected on a basis similar to how the CDA that drafted the 1997 constitution was chosen. Paradorn outlined a process in which who wish to be a member of the CDA in the province can apply through the National Election Commission. Parliament would then select one person from each of the 77 provinces. Another group of experts in law and political science would also apply and parliament would select 22 of them.
For constitutional reform advocates, the road ahead is fraught with danger. For one, we are already witnessing a rupture between Bhumjaithai and the People’s Party: their visions for how the amendment process should play out have already diverged considerably. Will the PP consider this a breach in trust? Perhaps, but Bhumjaithai would also argue that there is little room for maneuver given the Constitutional Court’s ruling.
We also have to take into account the “dark blue” Senate — at least one third of the 200 Senators must greenlight the amendment legislation. (As I wrote here last year, this is one of its most important institutional strengths: the gatekeeper to any process of constitutional reform). The Bangkok Post’s analysis notes that Bhumjaithai could follow a “two-faced strategy” where it publicly pledges to follow through on constitutional reform while “Senate allies…block or delay the process to preserve the status quo and protect its political leverage.” For what it’s worth, the Senate chief whip has said that he is not confident that the people want a new constitution, as the driving impetus seems to have come from politicians.
What does constitutional reform entail?
Those unfamiliar with the debate over amending the 2017 constitution might ask: what exactly is going to be changed about it? Since Anutin became prime minister, there has been little discussion so far on what the goals of drafting a new constitution actually is, as all energy has been dedicated so far to questions of process.
The original driving motivation for many who wanted to amend the constitution was to get rid of a temporary clause that allowed the appointed Senate to join with the elected House of Representatives to select a prime minister, a mechanism that was widely seen as undemocratic. However, that clause has since expired — hence why Senators had no say in the election of Paetongtarn Shinawatra and Anutin Charnvirakul. I don’t have data to back this up, but I suspect that this has taken some wind out of constitutional reform advocates’ sails: nothing evoked quite as much feeling (for and against) as the temporary clause.
Since then, the ethics clauses requiring ministers to meet standards of ethical behavior — which the Constitutional Court ruled Srettha Thavisin and Paetongtarn Shinawatra fell afoul of — have also come under closer scrutiny. Eliminating these would probably be controversial (I can already imagine headlines about politicians trying to end ethical standards for themselves), but there will certainly be many conversations about this.
The now-dissolved Move Forward Party had campaigned on several proposed reforms, such as “closing the door to future coups” (I’m still not sure how that can be legislated in practice), reforming the Constitutional Court and other independent agencies, and further decentralization. We do not know what Bhumjaithai really wants from constitutional amendment, given that it had not been a party priority before the agreement with the PP was inked. But Anutin has appointed the constitutional law expert Dr. Bowornsak Uwanno as Deputy Prime Minister overseeing legal affairs. Bowornsak had previously chaired the CDA that drafted the 2015 draft constitution, which was rejected by the military-appointed legislature. I imagine that his opinions will hold some weight on how constitutional reform proceeds.
We may be getting ahead of ourselves, of course. There’s no guarantee yet that this process will even get off the ground — although we should have a pretty clear idea of that within the next four months.