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The military drafted Constitution passed in the referendum in 2016 and implemented in 2017 is set to break the record of being the longest serving constitution since the 1960s given the current parliamentary quagmire.
Over the past 92 years since Thailand’s transition to constitutional monarchy, the country has had 20 constitutions, and a quick math would show the average lifespan of each of these constitutions at about 4.6 years.
The 2017 Constitution (as it is officially called) is extremely difficult to amend, and that is by design. Nicknamed the “Containment Constitution” by Allen Hicken — as he wrote in a New Mandala piece in 2016, the constitution was written to “contain vile and venal politicians, much as you would an infectious disease” — the constitution now feels like it has been placed in a secure lock with the key hidden away at the end of a complex obstacle course.
Pheu Thai, try as they might, has yet been unable to find the key. Although the party included constitutional reform as one of their pressing policy priorities in the run-up to the 2023 general election, calling it “a legacy of dictatorship” Prime Minister Paetongtarn Shinawatra’s administration now seems just as lost as her predecessor in trying to find a way to make constitutional amendment happen.
Senate & Bhumjai Thai the Road Bump
A major part of this obstacle course is the Senate. Section 256 of the 2017 Constitution requires at least one third of the Senate to approve any bill on amending the constitution in the third reading.
As analysts have noted, although the Senate is nominally non-partisan, it appears to have taken on a clear Bhumjai Thai “dark blue” hue. The upper house and the Bhumjai Thai Party now appear to be working in tandem to retain the constitution’s amendment difficulty level.
The Senate recently voted to pass the referendum act but decided to retain a “double majority” requirement for the upcoming referendum on constitutional reform — at least 50% of eligible voters must turn out, and at least 50% of those who turn out must vote to approve the Constitution.
The House of Representatives disagreed with this decision, but the Bhumjai Thai Party sent a clear signal by abstaining on this vote.
The lower and upper house must now set up a committee to talk through their differences, with Pheu Thai pledging to find consensus. If the double majority is retained, then the chances for successful amendment will drop, as those opposed to charter reform can simply boycott the vote. (It is worth noting that a previous effort at amending the 2007 constitution saw almost 60% turnout, so it is not impossible). But even if the requirement is dropped in favor of a simple majority, the Senate will have succeeded in further delaying the entire process.
No Time To Waste
This is time that Pheu Thai Party can hardly afford to waste. Former prime minister Srettha Thavisin’s government had decided that in order to minimize the risk of legal challenges, amending the constitution will require no less than 3 referendums to be posed to the people.
The first will ask whether voters agree that the constitution should be amended. The second will ask if they would like to amend Section 256, which governs how constitutions are amended. The final will ask voters to approve the changes made.
There are plenty of opportunities for voters to abort this process. And given that there is less than 3 years left in this government’s term, holding 3 referendums before parliament expires will be an uphill task.
Another important question is: what exactly will Pheu Thai be selling to voters when it seeks to amend the constitution?
It looks increasingly likely that the content of constitutional amendment will be quite meek. The highly controversial temporary clause of the 2017 Constitution, which allowed the Senate to join with the House of Representatives in selecting a prime minister, has already expired.
Pheu Thai backed down from proposing an amendment of the ethics clause, which had led to Srettha’s removal from office, after coalition partners voiced disagreement. Other legal issues in the constitution are likely to be more arcane and difficult to digest for ordinary voters.
All of this means that constitutional amendment risks becoming seen as merely a matter of politicians indulging in their own political interest. Coupled with Thailand’s lagging economy, Thais will ask whether or not the government is pursuing a political luxury that voters would rather leave on the backburner.
Coupled with conservative attacks that Pheu Thai is trying to change an ideal “anti-corruption constitution,” Pheu Thai may find that constitutional amendment is an increasingly tough sell. Indeed, if only to change minor details of the constitution, voters will demand to know if the 3-billion Baht price tag of holding each referendum is worth it (total cost of 3 referendums can reach 9-billion Baht).
And so, if forced to bet, I would probably hazard this guess: it is more likely than not that meaningful constitutional reform will not be completed before the end of this government’s term. This will have important consequences for the next general election: Pheu Thai will have to go all-in on reviving the economy, as that will be their only possible route to electoral survival.