Caption: Protest at Democracy Monument on 14 November calls for constitutional amendment. Source: Prachatai

Explainer: How is the constitutional amendment going?

Containing promises and perils, constitutional amendment could be one of the most anticipated topics in 2021. Although it still has a long way to go, amendment of Section 256 may be decided this year.

After heated protests and government delaying tactics, in November 2020 parliament voted on 7 motions on constitutional amendment. Only two motions passed the first reading. One came from the opposition parties led by Pheu Thai and the other from the government coalition parties led by Phalang Pracharat. Both aim to amend Section 256 which itself sets out the process of amending the constitution.

Thanks to pressure from the protests, the government coalition and the opposition parties agreed that the government should remove from Section 256 the specification of how many votes are required in House of Representatives and the Senate to pass amendments. They also agreed to add to Section 256 provisions for a Constitutional Drafting Committee whose members must come from an election.

The Constitutional Drafting Committee will not, however, be able to amend any part of Chapter 1 (General Provisions) or Chapter 2 (the King) according to both proposals. This is even though there is no inherent restriction in the constitution against amending specific chapters or sections. Both proposals have been criticised by iLaw and the opposition’s Move Forward Party, which had their own proposals for constitutional amendment rejected. Without monarchy reform, the fundamental conflict between the protesters and the government is also very likely to continue in 2021. However, those two were the proposals that passed.

Still, the government coalition’s proposal differs from that of the opposition parties on three significant issues.

First, the government coalition and the opposition parties agreed to get rid of the specification of the number of votes required from the House or Representatives and the Senate to pass a constitutional amendment. However, the opposition parties want constitutional amendments to be passed by a majority vote of parliament while the government coalition wants it to be passed by three-fifths.

Second, the government and opposition parties agreed to add an elected Constitutional Drafting Committee to the amendment process. However, the opposition parties want all 200 members of the Constitutional Drafting Committee to come from an election based on constituencies. But the government coalition wants only 150 of the 200 members to come from an election.

The other 50 comprise 20 from parliament (around 13 from the House of Representatives and around 7 from the Senate), 20 academics with expertise in law and political science, and 10 from students and the Council of University Presidents of Thailand. The opposition parties are concerned that the government coalition’s proposal would pave the way for the government to install its own people to control the Constitutional Drafting Committee.

Third, the opposition parties want to remove the clause requiring a referendum for amending certain chapters and sections. Having an elected Constitutional Drafting Committee should be enough to make sure that the constitutional amendment is democratic. The removal of the referendum requirement will also speed up the amendment process, making it more possible to rewrite parts of the consitution under this government. However, the government coalition does not want to remove the referendum requirement for the amendment of those specific chapters and sections.

The current Section 256 says that amendments which require a referendum include those which involve Chapter 1 (General Provisions), Chapter 2 (the King), Chapter 15 (Amendment to the Constitution), or any sections which involve qualifications and prohibitions of persons holding positions under the Constitution, the duties or powers of the Court or Independent Organs, or rendering the Court or an Independent Organs unable to act in accordance with its duties or powers.

Since the government’s motion gained more votes in parliament, the government’s motion will be the first to be discussed in the second reading. The opposition parties will be able to request that their suggestions be added to the government coalition’s draft. However, if the government’s motion passes the second reading, the opposition parties’ draft will be automatically nullified. And because Section 256 is under Chapter 15 (Constitutional Amendment), the government must hold a referendum to approve the amendment after the third reading.

It is most likely that voters will face a similar dilemma to the one they faced in the 2016 referendum, choosing between rejecting any progress at all or accepting something which is not much of a progress. iLaw, an independent organization, also expects a worst case scenario in which the government amends the constitution to consolidate its power even more. In this scenario, iLaw notes that the current Section 256 will come in handy as the voters can use the referendum to reject the amendment in question. Without 20 percent of members of House of Representatives whose political parties do not hold positions as cabinet members, the Speaker of the House of Representatives, and the Deputy Speaker of the House of Representatives, the amendment will also not be able to pass.

Without any tricks from the government coalition, the second and third readings for the amendment of Section 256 were expected to start at the end of February or in March, followed, if successful, by a referendum to approve the amendment in 60 days, which would have been around April or May, and the King’s signature around mid-2021.

But this just amends the amendment process itself. Substantial amendments, such as curbing the powers of the unelected Senate, would then be able to proceed after the election of a Constitutional Drafting Committee, which will be responsible for further constitutional amendments.

This timetable now seems hopelessly ambitious after the government coalition parties and the Senate voted on 9 February to petition the Constitutional Court for a ruling on the legitimacy of the two motions that have passed the first reading.  At best, this will delay the entire process by weeks if not months, and at worst will result in the motions for amendment being declared unconstitutional, bringing things to a dead halt. The Constitutional Court said they will vote on the constitutionality of the amendment on 11 March.

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