A pragmatic look at constitutional reform

“We’ve seized Government House. We’ve seized airports. That couldn’t accomplish anything. What will the current protests do?” This was a tweet from a conservative account. 

This netizen doesn’t give the protestors enough credit. Already, political parties, parliament and government are moving to respond to the new and fast-changing situation. But it is true that it is notoriously difficult for any protest in Thailand to achieve its goals without military or judicial intervention. It is all too easy for the government to simply ignore a flash mob that does not stay overnight. 

So what does a peaceful, constitutional path towards change look like? This article was not written to discourage constitutional reform, or to say that change is not needed. But the protestors have also rightfully rejected two exceptional means: a military coup or a government of national unity. It is thus important to take a pragmatic look at what parliamentary means will require. 

Ultimately, the most important part of the charter that protestors want amended is Section 272, which permits the appointed senate to participate in the election of the prime minister. For this to happen, protests on the streets will not be sufficient; parliament will need to take action. 

But this is not an amendment to Section 272; any attempt to do so right now would be bound to fail in parliament. Instead, it is a motion to amend Section 256, which governs how the constitution can be amended: a process that the drafters intentionally made extremely difficult to make any return from semi-democracy virtually impossible. 

For this motion to be filed, it must first be supported by at least a hundred MPs — a requirement that has now been met with the support of Pheu Thai. The motion must then undergo three readings. In the first reading, no less than one half of all MPs and senators must approve, with at least one-third of senators concurring. A simple majority is then required in the second reading after section-by-section scrutiny. This is followed by a third reading requiring a majority of both houses, with at least one-third of senators and 20% of opposition MPs.

Sounds confusing? To put it simply, the motion would need at least 376 votes of approval in the two houses combined, with at least 84 of those votes from the appointed senate. A challenging ask, to put it mildly. 

But that isn’t the end of it. The constitution requires that any motion to amend Section 256 then be approved in a national referendum. And afterwards, MPs and senators can petition the Constitutional Court to rule on whether the proposed change is an attempt to change the democratic regime of government with the king as head of state; if the court rules so, then the proposed change would be illegal. 

It isn’t out of the realm of possibility that it will succeed. The opposition currently has a little over 210 seats in parliament. Should there be no more defections, this forms the bedrock of support for change. 

There is also some support from the government benches. The Democrats, with 52 MPs have already committed themselves to amending Section 256. Bhumjaithai has said that they are supportive of constitutional change. Some senators have also voiced openness to a discussion on constitutional amendment. Indeed, it is in the interest of the government and the senators to find ways to lower the political temperature somewhat — and giving in to this proposal may be the way to do it. 

But there is no denying that the road towards reform will be long and winding. Even after all this is done, the only thing that has been amended is the section on how to amend the constitution! More conversations would then be required on which sections of the constitution to then amend — and the government will be bound to fight harder on Section 272 than on Section 256. 

In addition, while this process is ongoing, there can be no dissolution of parliament. Without the legislature, constitutional change cannot be initiated, nor can it be approved. And any dissolution which leads — as it would under the current circumstances — to another Palang Pracharath “victory” would simply allow the government to claim a renewed mandate. And so by sticking to this path, there will be no change in government in the foreseeable future. 

* * *   

Given how difficult it will be to amend the constitution, even in the most non-controversial way possible, it would not be difficult to see why many are trying to drive for systemic change. Why try to work within a rigged system? 

At Thammasat, students called for “revolution, not reform.” And dissatisfied with simply calling for constitutional change and the dissolution of parliament, ten demands on the monarchy were also issued. 

In Thailand, the demands were seen as explosive. And indeed, any quick glance through online rightwing dens — take the ‘Cheer for Uncle’ Facebook group or the Thai Move Institute’s page — give us quick reminders that many will vigorously resist any proposed changes. 

I will not repeat what is said in many such groups, for they are often hateful. But it is clear that conflict would be essentially unavoidable if the ten demands were to be a key plank of the protests. Proposals on dissolving parliament or amending the constitution are tolerable, they say — anything that touches the monarchy is not. 

This marks an especially dangerous and volatile time. When Sudarat Keyuraphan, Pheu Thai’s chief strategist, warned against criticism of the monarchy and asked protestors to return to their three original demands, she was faced with a torrent of Twitter criticism. Protestors accused her of “fighting while kowtowing” (su pai kraab pai). The age for that is over, they challenged, dismissing her warning that conflict and chaos would create the pretext for another coup.  

But perhaps Sudarat has a point. There are numerous precedents for violent upheaval on the streets in Thailand’s recent history; hot-headed protestors and cold-blooded governments are not a good combination. While the protests on the 16th were peaceful and good humored, and the state showed restraint and respect for freedom of expression, events before that had shown clear possibilities of escalation and it is still an open question if this atmosphere of tolerance will continue. 

The hopes of the protestors and the goals of the government are divergent. But one that is surely shared is a desire to ensure that no violence occurs. The regime would not want to be delegitimized by any use of force, hence why Prayut has been keen to emphasize to the media that security forces must exercise the utmost restraint. 

Yet a result that must also be avoided is protest meeting counter-protest, which any insistence on the ten demands would be sure to spark. 

A few days after the Thammasat protest, I stepped into a taxi. Perhaps it was the fact that I am still a student — and indeed look like one — or perhaps it was simply on the driver’s mind. Whatever the reason, I suddenly found myself in the middle of a lecture on politics.

“You must respect the monarchy,” he told me. “This morning when I made merit, I prayed for the king’s health and barami. Being a good person is very simple: you just have to be loyal to the throne. Understand your place in society.” I noted the 20 baht banknote — with King Vajiralongkorn’s image — hanging in front of the car.

The driver bemoaned the current state of affairs in Thailand. We are the most successful nation in the world at fighting coronavirus, he said. Do these protestors not understand how blessed Thailand is? Why are they trying to plunge Thailand deeper into chaos at this time of turmoil? And more importantly, why are they involving the royal institution in these protests? “Go yell at the politicians,” he said. They are the corrupt ones.

As I listened, I pulled up my phone to check Twitter. Several hashtags related to the protests, calling out silent celebrities and the 1976 Thammasat university massacre were trending, as they have been for weeks. 

Writing about taxi drivers talking about politics is such a cliché that it almost amounts to journalistic malpractice. But being given a conservative lecture while scrolling through revolutionary Twitter hashtags seemed, to me, to encapsulate the current crossroads that is Thai politics. And it shows the dangers of intentionally pushing divisive demands in an already highly polarized country. The royalist taxi driver may be but one person, but it would not be unreasonable to guess that his thoughts reflect wider sentiment among conservatives. Avoiding outright conflict between two opposing groups would be difficult with a topic so contested. 

If the protestors wish to see change happen peacefully and without extraconstitutional mechanisms such as a coup — which they explicitly reject — they have a long battle ahead. Along that path, they will need a large consensus in society to continue to pressure government MPs and senate to compromise. And of course, they will need a majority of voters to approve constitutional change in a referendum.

Given the structural impediments and hardened opposing attitudes, any move towards greater democracy in Thailand will not be easy. For the most important goal of constitutional amendment to succeed, therefore, retaining the goodwill of society will be key.

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