–Khemthong Tonsakulrungruang, Faculty of Law, Chulalongkorn University
The 2017 Constitution has only been in effect for two years but the movement to amend, or even replace it, is spawning. The campaign for a constitutional change is spearheaded mainly by the opposition party, supported by several anti-junta groups. At present, the movement is in an infant stage. The government of Prayuth Chan-ocha, the former dictator and current prime minister government, appears reluctant, but the House of Representatives has already voted to set up a House committee to study the issue. Several public forums have been held, mostly in universities, to advocate the cause. A momentum is building. What is wrong with Thailand’s latest constitution? What is the impetus behind the movement? Will the opposition be able to amend the constitution?
In 2014, Prayuth Chan-ocha staged a coup under the auspices of the National Council of Peace and Order (NCPO), ending the 2007 Constitution. The NCPO then spent three years drafting a new one. Under its close supervision, the NCPO handpicked legal experts and set agendas while arresting opponents of the process. The NCPO compensated for an absence of public participation in the drafting process by holding the national referendum in 2016, where the majority voted in favour of the draft constitution.
A closer look at the referendum revealed that the 2017 Constitution was the product of a toxic marriage between dangerous naivety and cynical authoritarianism. In 2006, another military junta had staged a coup and drafted the 2007 Constitution, hoping to extend its grip of power through the new charter. However, the majority of Thais strategically voted for the Constitution in order to have a general election which defeated the junta’s proxy. A large number of Thais, wishing to oust the junta as quickly as possible, repeated the strategy. Very few had read or fully understood the content of the Constitution yet they voted to accept it.
Unfortunately, the military learned from the 2007 mistake too. Constitution drafting was part of a larger scheme to legally transform the military dictatorship into an elected autocrat. Under the NCPO administration, the junta appointed sympathizers to several constitutional institutions including the Election Commission (EC) and the Constitutional Court. The NCPO issued orders that tilted the playing field, for example, gerrymandering and demanding party members to re-register. Dissidents were arrested, harassed, or even murdered. The 2017 Constitution itself contained many provisions that later would surprise the populace in the March 2019 election. The electoral system designed a fractious House and imposed unreasonably severe restrictions regarding membership, finance, and candidacy on political parties. The first Senate of 250 members would be appointed by the NCPO, with six seats reserved for armed force commanders. There was a special provision that allowed the 250-strong Senate to jointly vote on the PM. A combination of biased agencies and mischievously designed rules handed Prayuth a prime minister seat. He did not win the election but the EC discounted many votes for the opposition, producing a razor-thin majority for Prayuth. Ultimately, it was his senate that voted him in. Meanwhile, the EC and the Constitutional Court went after the opposition parties, dissolving one party and disqualifying the leader of another party.
In the eye of critics, then, the 2017 Constitution is flawed at two levels. First, it is a badly written law, resulting in a dysfunctional House and unaccountable umpires. People are asking for a fairer electoral system, a senatorial election, and scrutiny of courts and watchdog agencies.
But the second, and more serious, flaw is the lack of legitimacy. It was born out of the coup, imposed upon the people with little participation from them. Even if the content is amended, many would still campaign for a complete overhaul. A new constitution must be prepared by an assembly of the people’s representatives.
Currently, the government expresses strong disapproval of the campaign. Meanwhile, it employs several harassing tactics including legal ones to discourage the attempt. One academic is charged with sedition and the main advocate, the Future Forward Party, may be dissolved under the pretext of violating campaign finance regulation. But the real test will come when the motion to amend the constitution is formally proposed to the Parliament. Aiming to entrench its ruling, the junta designed the amendment rule to be almost impossible to meet. The motion must be approved in three readings by the joint meeting of both the House and the Senate. For the first reading, in addition to the supermajority requirement, at least one-third of the Senate must approve. In the third reading, the supermajority must also have approvals from one-third of the Senate as well as one-fifth of the opposition parties plus the House Speaker and his Deputy. The amendment cannot touch upon the form of the state or the nature of the regime, which is spelled out as democracy with the king as the head of the state. Moreover, if the motion is to amend the basic structure of the state, the amendment rule itself, and the power of those watchdog agencies, there must be another national referendum. Finally, the motion is subject to a review from the Constitutional Court.
In sum, an amendment can only be carried out if it gets approval from the Senate and the Constitutional Court. Both institutions are known for an anti-majoritarian, anti-politician, or even anti-democratic penchant.
A study suggests that, since 2006, the anti-democratic conservatives have captured the constitutional drafting and design. They intentionally weakened people’s representation while empowering unelected institutions such as the judiciary and watchdog agencies, tipping the check-and-balance. It is not a coincidence that these are areas where people are wishing could be amended.
Another study shows that between 2012 to 2014 the Constitutional Court acted as the guardian of this repressive arrangement under the claim of anti-corruption. Any attempt to amend the charter without the conservatives’ authorization would be ruled unconstitutional. The Court regarded empowering an elected government as permitting it to corrupt. But the critics of the court see the reason simply as a façade to suppress the majority. It is likely that the Court will uphold its precedent, striking down any motion proposed by the opposition.
A struggle over amendment is just one of many fronts of Thailand’s ongoing battle between the pro- and anti-democratic wings. An amendment, or even a replacement, will not quickly solve Thailand’s festering constitutional crisis. But it is the right step to de-escalate the brewing tension. Currently, mass protests are erupting across the globe and observers speculate that sooner or later Thailand may make it to the list.
Suggested Citation: Khemthong Tonsakulrungruang, Undoing Authoritarianism: Thailand’s Campaign to Amend the 2017 Constitution, Int’l J. Const. L. Blog, Jan. 8, 2020, at: http://www.iconnectblog.com/2020/01/undoing-authoritarianism:-thailand’s-campaign-to-amend-the-2017-constitution