With the next general election in 2023, Thai politicians from all sides are becoming more serious about constitutional amendments to advance their political interest.
In March, Parliament rejected an amendment of Section 256 of the Constitution. The opposition parties planned to establish a Constitutional Drafting Committee to rewrite the entire constitution. In a single night, government MPs and the unelected Senators ended a year-long process by voting down the amendment in the third reading.
To question the legitimacy of the motion, Phalang Pracharat politicians filed a petition to the Constitutional Court for a ruling on the legitimacy of the amendment. The nine judges ruled that the constituent power belongs to the people. So national referenda must be held both before and after Parliament passes any motion to rewrite the constitution, first to establish that an amendment is wanted and second to approve that particular amendment.
The moment when the amendment was turned down was dramatic, with sizable protests in Bangkok leading to detentions and injuries to many protesters. After two years of amendment campaigns since 2019, it was as if the demands of the pro-democracy protesters had gone nowhere. The political parties, government and opposition alike, were often criticized by protesters for not taking action.
However, with the election looming in 2023, this will change - for better or worse.
Government coalition parties to launch constitutional amendment
Professional politicians see constitutional amendment not in terms of ideology but in terms of expediency. They saw with their own eyes what the constitution could do to the election results in 2019. With the 2023 election in sight, all political parties want to have a say in constitutional amendment in order to advance their self-interest.
It is safe to say that all political parties are hurt by the current constitution. For professional politicians in the government coalition, like the Democrat, Bhumjaithai and Chartthaipattana parties, constitutional amendment means an opportunity to be the leader of a government of their own and the ability to deliver the promises made to their voters in the last election campaign.
Against the backdrop of the on-going protests and people’s dissatisfaction, these political parties decided to restart amendment of Section 256 right after its rejection in March. The amendment would make it easier to pass further constitutional amendments in order to make more substantive change possible.
With regard to Section 256, there was no mention about incorporating the stance of the opposition parties into their proposal, that is, to establish a Constitutional Drafting Committee to rewrite the constitution. It was merely about removing the current unnecessarily complicated voting requirements for parliament to pass amendments and instead change to a three-fifths majority.
At a press conference, the Democrat, Bhumjaithai and Chartthaipattana parties also said that they planned to amend Section 272 to get rid of the Senate’s power to vote for a prime minister as well as other sections relating to rights, freedom, community rights, good governance, decentralization, and elections. Against the wishes of the Phalang Pracharat party, they said they would even work with the opposition parties to push forward these issues.
Referendum Act delayed
On March 18, the Democrat, Bhumjaithai and Chartthaipattana parties voted in the second reading in support of amending Section 9 of the National Referendum Bill in order to enable parliament and Thai voters, as well as the cabinet, to launch a national referendum. This is so that they can use parliament to initiate a referendum and proceed to amend Section 256 in compliance with the court’s verdict.
In the original draft, the referendum process could only be started by the cabinet to ensure that the Prayut government had complete control of the amendment process from the very start. In the shock after the amendment to Section 9 passed the second reading, Phalang Pracharat MPs and unelected senators called for a recount, but Deputy Speaker Pornpetch Wichitcholchai did not allow it. So they asked for the third reading to be postponed. Since this came during the last meeting in this session of parliament, this would delay passage of the bill until the next session.
The Speaker of Parliament and opposition MPs instead opened a special session on 7-8 April to push the legislation forward. However, the session made a little progress as Phalang Pracharat MPs and unelected senators were obstructive about passing the law. Using the pretext of the third outbreak of Covid-19 which had infected Minister of Transport Saksayam Chidchob (allegedly in an illegally operated entertainment venue in Bangkok) and probably other government politicians, Senator Somchai Sawangkarn, who has been prominent in attacking schoolchildren protesting for democracy, requested the Speaker not to recognize a quorum. As a result, debate on the National Referendum Act has been delayed until the next ordinary session of parliament.
New election systems discussed
Paiboon Nititawan, a leading figure in the Phalang Pracharat party, said that Phalang Pracharat planned to amend the constitution on 5 issues in 13 sections. However, getting rid of the Senate’s power to vote for a prime minister was clearly not on the list. It was Paiboon who engineered the downfall of the constitutional amendment motion in March. Originally elected as the single party-list MP for the People Reform Party on the strength of only 45,508 votes from all constituencies nationwide, Paiboon quickly switched parties and rose to prominence in Phalang Pracharat.
Even if the government coalition parties have conflicts with each other, they have a common interest in changing the electoral system. Both Phalang Pracharat and the three coalition parties agree on going back to a two-ballot system. On this issue, even the Pheu Thai party may also get on the wagon to regain their status quo, but we will have to wait and see whether or not this actually happens.
Returning to a two-ballot system means that the next election will be similar to those held under the 1997 and 2007 constitutions, where voters were given two ballots. One, for constituency MPs, would be counted under the first past the post system. The other, for party-list MPs, would be counted separately under a proportional representation system. This system favours Pheu Thai as political parties of their affiliation won every election from 2001 to 2011.
In the 2019 election under the military-initiated 2017 constitution, a single-ballot system was used to elect both constituency MPs and party-list MPs. While the constituency MPs were decided by a first pass the post system, the party-list MP seats were allocated using an extremely complex calculation based on the total votes cast. This was designed (and then misleadingly interpreted according to some observers) by the Election Commission appointed by the coup-makers back in 2014. The system resulted in a number of pro-government micro-parties, with as few as 35,000 votes nationwide, and Pheu Thai obtaining 250 seats from the constituency elections and zero seats from the party-list allocation.
Pheu Thai knew that they would not be compensated with party-list MPs seats due to their large number of constituency MPs. To solve the problem, the Thai Raksa Chart party was established under Pheu Thai’s affiliation to collect votes for obtaining party-list MP seats. However, after the dissolution of Thai Raksa Chart by the verdict of the Constitutional Court over the nomination of Princess Ubolratana to be Prime Minister, a lot of voters turned to the Future Forward party instead. Future Forward, as a result, gained a surprising number of party-list MPs before the Constitution Court dissolved them for taking a loan from its leader Thanathorn Juangroongruangkit. The event gave rise to the protests in February 2020 and Move Forward was formed to replace Future Forward.
Since then, Move Forward has been seen by the establishment as too outspoken and Pheu Thai party as no longer so dangerous. First, the Move Forward party exposed the Information Operations of the military in two consecutive no-confidence motions. Second, they voted against the transfer of military units to come under the King’s personal control. And third, they proposed an amendment to the lèse majesté law. As the only party courageous enough to challenge the military and royal power, it is not unexpected that the establishment would prioritize undermining the Move Forward party’s endeavours by reducing their MPs in the 2023 election.
In response, Move Forward came up with their own constitutional amendment. Secretary-General Chaitawat Tulathon said that they would restart the amendment of Section 256. By passing the National Referendum Act, Move Forward will push forward the establishment of a Constitutional Drafting Committee as previously planned with the other opposition parties.
While they insist on rewriting the entire constitution, they will continue to work on a section-by-section approach to amendments. In the previous attempt at constitutional amendment, Move Forward was the first party to come up with the idea of a section-by-section approach. But their amendment did not pass the first reading last year. This time Move Forward plans, among other issues, to get rid of the Senate’s power to vote for a prime minister just as in the previous amendment.
However, they have also come up with their own electoral model to protect their source of political power. While Move Forward agrees with the two-ballot system, they do not think that going back to the system of the 1997 constitution will get the country out of political deadlock. To make it more democratic, Move Forward has proposed a mixed member proportional representation system or MMP.
Move Forward says that their MMP system is similar to the one currently used in Germany. According to the proposal, the voter will be given two ballots. One will be counted in a first pass the post system for constituency MPs. The other, for party-list MPs, will be counted nationwide by proportional representation. However, unlike in the 1997 and 2007 constitutions, party-list MPs will be allocated in a compensatory manner. The number of the party-list MP seats that a political party gains will be calculated by their percentage of the nationwide vote minus the number of the constituency MPs it has obtained.
With an MMP system in place, Move Forward will still have a chance to gain party-list MPs in a more genuine democracy. How many MP seats the Move Forward will get will depend on how many voters they can maintain and how many more they can win from Pheu Thai, now that Pheu Thai will no longer face the same problem as in 2019. However, since it is a new election system, it is doubtful whether the establishment and Pheu Thai will agree since they might both be better-off with the voting system of the earlier constitutions. Worse still, the MFP idea will have to pass the unelected Senate in alliance with Phalang Pracharat.
Even if it looks like Pheu Thai is competing with Move Forward at each other’s expense, it is not the only story there is. The establishment is now facing a dilemma. Phalang Pracharat can either change nothing at all and risk facing Move Forward just as strong, or it can return to the old two-ballot voting and risk losing the election to Pheu Thai. Even though they remain dominant for the next two years, the 2023 election will not be easy.
Resolution campaign emerges
The political parties may push forward constitutional amendments according to their own political calculations, but civil society is also proposing a people’s version. Whether or not parliament will pass it, this campaign will set the bar for the second wave of constitutional amendments.
iLaw’s proposal for constitutional amendment may have failed to pass the first reading in parliament last year despite a hundred thousand signatures of voters. However, the attempt has re-emerged as a campaign known as the Resolution. The campaign is backed by the Move Forward party, the Progressive Movement, Conlab, and iLaw.
On 6 April, an event was held at the Faculty of Law, Thammasat University, Tha Prachan campus. A table was opened to collect signatures to propose to parliament the people’s constitutional amendment. According to the current constitution, a constitutional amendment backed by at least 50,000 signatures must be discussed in parliament. The goal of Resolution is to have from several hundred thousand to one million signatures.
On that day, speeches on several topics were given by leading scholars, politicians and political activists at the event. The leading figures who gave the speeches include Prajak Kongkirati, Parit Wacharasindhu, Piyabutr Saengkanokkul, Sarinee Achavanuntakul, Patsaravalee Tanakitvibulpon, and Chayathanus Saradatta.
According to speakers, the goal of the campaign includes abolishing the Senate to establish a unicameral parliament, reforming the power and selection process of the now anti-democratic independent bodies, abolishing the National Strategy and National Reform plans, and eliminating the legacy of the military coup. The campaign also accepts online submissions and instructions are provided on social media.
The campaign did not mention any amendments to Chapter 1 (General Provisions) and Chapter 2 (the King) of the constitution. When asked about this by a reporter, Piyabutr Saengkanokkul said that there was no restriction against it in the current constitution, and it does not mean they would not do it in the future.
“Today we aim at 4 big issues including abolishing the Senate, removing the Constitutional Court and the issue of the independent bodies, abolishing the National Strategy and National Reform plans, and wiping out the legacy of the military coup. Not touching Chapters 1 and 2 does not mean we are not interested in that,” said Piyabutr.