After the cabinet announced on Tuesday (23 April) that it will require three referendums on amending the constitution, concerns have been raised that a provision prohibiting amendments on monarchy-related chapters in the Constitution will lead to a dead end and raise questions about the role of the monarchy.

Members of the People's Constitutional Drafting Group submitting their petition, signed by over 200,000 people, to the Election Commission on 30 August 2023 to call for a referendum on constitutional amendments.

The Cabinet voted on Tuesday (23 April) to approve a recommendation made by the Constitutional Amendment Committee to conduct three referendums. The first is to take place between July-August 2024 and will ask one question: “Do you agree with having a new Constitution without amendments to Chapter 1, General Provisions, and Chapter 2, The Monarchy.”

Of the 5 Sections in Chapter 1, ‘General Provisions’, of the current 2017 Constitution, Sections 2, 3 and 4 make reference to ‘the King as Head of State’. Chapter 2, ‘The King’, has 19 Sections dealing with the position and authority of the monarch.

If a majority votes in favour of amending the Constitution without amendments to these two chapters, a second referendum will follow asking for approval of an amendment to Section 256 of the current Constitution to allow the formation a Constituent Assembly. If this passes, a third referendum will ask whether people approve a new Constitution drafted by the Constituent Assembly.

The 2021 Referendum Act requires a double majority for a vote in favour: voter turnout must be more than half of all eligible voters, and more than half of the turnout must vote in favour. BBC Thai reported that, according to Prime Minister Srettha Thavisin, the Cabinet is also planning to amend the Referendum Act.

The People’s Constitution Drafting Group, a network of civil society organizations and activist groups campaigning for a new constitution, issued a statement on Wednesday (25 April) that the government had wasted over 200 days studying approaches to constitutional amendments and filing petitions with the Constitutional Court only to circle back to the beginning. It had also ignored questions proposed by civil society and opposition parties, including a question proposed by the People’s Constitutional Drafting Group, which was backed by over 200,000 voters. The network had also requested meetings with the Prime Minister, but their requests were never answered. The statement also noted that the government has not mentioned how the Constituent Assembly will be formed.

The network also said that it found the question written by the government problematic, since voters who wish to amend the entire Constitution will be left with no choice of how to vote in the referendum. It would also prevent a completely new Constitution from being written, since any resulting draft would retain Chapters 1 and 2. A draft of the current constitution was put to a referendum in 2016 and passed, but Chapters 1 and 2 were then changed before the constitution was promulgated. Meanwhile, limitations on amendments to chapters relating to the monarchy raise questions, since the monarchy will be used as a condition for constitutional amendments. 

Noting that it previously proposed a referendum question and a call for the Constituent Assembly to be entirely elected in a campaign backed by over 200,000 voters, the network said that it cannot vote in favour in the referendum when the government rejected its proposals and decided on a question that is contrary to its principles. 

A ‘no’ vote in the first referendum, says the statement, does not mean that the voter wants to retain the 2017 Constitution, as many who vote ‘no’ may do so because they want to amend the entire Constitution without any limitation. The network believes that, since the referendum question asks about two issues at once, whether people wants amendments to the 2017 Constitution and also whether they agree with the condition included in the referendum question, it is impossible to interpret the result. 

“We have always been trying to warn the government of what kind of question risks the referendum not passing, but the government keeps using a question that creates conditions, creates conflict, and more than that, creates unnecessary arguments about Chapter 1, General Provisions, and Chapter 2, The King. The government has sparked questions among society about what Chapters 1 and 2 are about, what the problem is, and why they have to ban amendments, and it is using this issue as a deciding factor in the future for writing a new constitution. So a question that ‘locks in a condition’ like this is a question from the government, by the government, for the government,” said the statement.

“Since the government is the owner of this question, it must also own the consequences. If the result of this referendum blocks the path to a people’s constitution, it will be the government’s loss for not being able to follow through on a policy they announced. The government must take responsibility by resigning, because it means that they are no longer trusted by the people.”

The network said that it wants a people’s constitution, and that the process of drafting a new constitution must be fair and open to public participation. Setting a condition at the very beginning of the process could mean that there will always be conditions along the way and the Constitution would always cater to anyone in power at the time. The network invites people to apply to run for the Senate, since constitutional amendments need to be approved by a third of the Senate to pass.

Meanwhile, the Move Forward Party (MFP) has called on the government to rethink the question it will use. People who agree with one part of the question but disagree with the other, like those who wish to amend the Constitution but disagree with prohibiting amendments to Chapters 1 and 2, might not be sure how to respond. Such a question could mean that the constitutional amendment process fails at the first referendum and lead to uncertainty about how the result of the referendum is to be interpreted as it would be unclear whether those who vote against or abstain from voting do not want to amend the Constitution or if they disagree with the limitation on amending Chapters 1 and 2.

MFP also raises concerns that the constitutional amendments process could run into further problems, since Sections are inter-related and any amendment to other chapters may necessitate amendments to Chapters 1 and 2 so that the entire Constitution is internally consistent. The use of this question could also mean that the new Constitution will not be able to reconcile different opinions in the society or reflect the new consensus. 

The party noted that amending Chapters 1 and 2 is normal and that both have been amended every time a new Constitution is written. Section 255 of the Constitution already prohibits any amendment that would change the regime type or form of government. It could also make political reconciliation more challenging if discussions around amendments to Chapters 1 and 2 are prohibited in a safe space like a Constituent Assembly.