Opinion: Constitutional reform efforts staring at a dead end

The Constitutional Court’s recent verdict on the legality of constitutional amendment seems straightforward at initial glance. Any effort to write a new constitution, it said, must first be approved by a referendum, and then a second referendum must be held to approve the final draft. But parliament is free to make article-specific amendments to the current charter as it pleases. 

Yet the verdict now threatens to further delay a constitutional reform process that has been moving at the pace of a wounded slug. A slug so wounded, it should be added, that it could also just drop dead and die at any moment.

The effort has already taken months, and the third reading of the bill to set up a constitutional reform committee is now scheduled for March 17th. Now, Palang Pracharath Deputy Leader Paiboon Nititawan argues that the verdict means the third reading of the bill is illegal — parliament has no authority, he argues, to initiate a constitution drafting process on which the people have not been consulted — and everything must start over. 

Starting over, of course, would be another massive delay of the process. But here’s a question worth considering: would it really make a difference? 

Much has transpired to distract the conversation since calls for constitutional reform erupted last year, so it may be valuable to remind ourselves of why any change is needed in the first place. There are a myriad of problems with the 2017 constitution, and everyone has a wishlist of things they want to see changed. Yet nothing is more important than Section 272: the article that states that the prime minister must be elected by a majority in a joint sitting of both the elected House of Representatives and the unelected Senate. 

It is Section 272 that hangs a cloud of illegitimacy over the current government. The Prayut government’s cheerleaders argue that he succeeded in putting together a coalition with garnered a lower house majority, and the Senate’s unified support for him means nothing. Detractors note (rightly) that this article created an institutional dynamic whereby no one else could put together a winning coalition, for no one else could conceivably win, making a mockery of the democratic process. 

Little discussed is the fact that Section 272 actually has an expiration date. It is intended to only last for five years after the first time a parliament is elected under the current constitution. Five years is a still a long time: long enough to ensure that the next election, which must occur by 2023, will be held while Section 272 is still in effect. In other words, the next time an election of a premier happens, the Senate will still participate. The same dynamic remains. 

So let’s loop back to the current efforts to amend the constitution. Is there any way we beat the 2023 deadline?

The most probable take is that even assuming that everything goes swimmingly, and the current amendment bill passes parliament’s third reading (which is far from guaranteed), the process will still likely take an excruciatingly long time.

If past is any precedent, a Constitution Amendment Bill passed parliament in May 1996 and the 1997 constitution was approved in August the next year. That still took over a year, and it occurred in a much more democratic environment for today, when the impetus for political reform is strong. If anything, this process will take even longer. Elections for constitutional drafting assembly members will likely take months to organize. And then the actual process of drafting a new charter itself will likely face no shortage of foot-dragging. 

Certainly, there’s a possibility we have a new charter before an election in 2023, but given the amount of delaying we’ve seen in the past six months, there’s a reason not to feel optimistic. Indeed, by that time, it’s just as likely that parliament has already been dissolved and a new election is called under the current rules.

It’s also just as possible that the new charter does not lead to any substantive political reform. Parliament has opted for the constitution drafting assembly to be elected based on parliamentary constituencies, a decision that makes little sense given that constitutional matters are hardly related to constituency matters. The effect this will have is that the elections will be subject to the influence of local machines, which is not quite how political reformers tend to be produced.

I’ve written many times about why constitutional reform is important, and it’s depressing to see the actual process go nowhere. It’s not that this wasn’t expected. We’ve known all along from the foot dragging. We’ve known all along from the fact that the government’s coalition partners hardly seem sincere about their desire to amend the constitution. 

But the cold reality of the unshakeable torpor of an establishment perfectly happy to leave Thailand embroiled permanently in semi-democratic turmoil, unwilling to concede an inch of reform, is still quite a sight to behold. 

(A small, therapeutic digression: why? Even if you love the current government, you surely do not love the unsettled state of affairs we find ourselves in, one that completely belies the slogan ‘Choose Prayut for peace.’ Constitutional compromise for stability: is the myopia so thick that this is unfathomable?) 

This is not to say that all is doom and gloom. It appears likely that some sort of referendum will be put to the people at some point, even if just a question of whether people want to see constitutional change at all. That would at least be a way for the people to voice dissatisfaction with the status quo. 

To count that as a silver lining at all, however, speaks much in itself about the current state of Thai politics.

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