Deputy Prime Minister and Minister of Finance Phumtham Wechayachai announced on Monday (25 December) that the Cabinet’s Constitutional Amendment Committee will propose 3 referendums on constitutional amendments and that the first will ask whether people want to amend the Constitution without amending chapters relating to the monarchy.

Phumtham Wechayachai

At a press conference announcing the result of the Committee’s study into approaches to amending the constitution, Phumtham said that the Committee believes that the referendum questions must be in line with the 2021 Constitutional Court ruling that the people have the authority to enact the Constitution. The Committee has also decided that the first referendum will ask one question: “Do you agree with having a new Constitution without amendments to Chapter 1, General Provisions, and Chapter 2, the Monarchy.”

Chapter 1 of the 2017 Constitution contains the general provisions and includes sections on the form of government. Sections 1 and 2, for example, state that Thailand is an indivisible Kingdom and that is ruled under a democratic form of government with the King as the Head of State. Chapter 2 deals with the position and authority of the monarch.

Phumtham also said that the Committee has made a record of opinions expressed by civil society which differ from their decision and will submit a report to the Cabinet for approval in January 2024. He said that they will try to complete the process as soon as possible so that a new Constitution can be drafted and enacted within the government’s four-year term.

He said that three referendums will be conducted. The first referendum will ask whether people want the Constitution amended. The second will ask about an amendment to Section 256 of the current Constitution to allow the formation a Constituent Assembly. The third will ask whether people approve the new draft Constitution.

Whether members of the Constituent Assembly will be elected or appointed will depend on how parliament decides to amend Section 256 of the current Constitution.

Nikorn Jamnong, head of a sub-committee gathering public opinion on approaches to constitutional amendments, told BBC Thai that the Committee will submit their proposal to the Cabinet in January 2024, and if it is approved, the first referendum may take place in April 2024 at the earliest and May 2024 at the latest.

He said that the first referendum will not mention the Constituent Assembly because there is a concern that the referendum would be seen as unconstitutional and that someone could file a complaint about it. He explained that the Committee wanted to be careful as the current Constitution does not contain provisions on a Constituent Assembly, and to ask about it might be seen as asking whether they should go against the Constitution.

Move Forward Party MP Parit Wacharasindhu said that a referendum question should be as open as possible so that as many people as possible can agree on amending the Constitution despite differences of opinion on details. However, the question proposed by the Committee includes a condition that could mean that people agree with one part of the question but disagree with the other, which could push some groups out of the constitutional amendment process.

Parit noted that some people may agree with amending the Constitution, but disagree with keeping Chapters 1 and 2 unchanged, and they might find it difficult to answer the referendum question. If they vote to disagree, then their votes would be counted along with those who do not want the Constitution amended at all, which might mean that no amendment will be possible. However, if they vote to agree, then they are stuck with the condition that Chapters 1 and 2 cannot be changed.

He said that the government is being “unnecessarily” concerned about amendments to Chapters 1 and 2, since amending these chapters will not lead to a regime change and they have been amended in the past. He also noted that the current Constitution does not prohibit amendments to these sections, saying only that a referendum is required to approve any amendments made to them.

By prohibiting changes to these chapters, said Parit, issues might arise in the future when amending other chapters since all chapters of the Constitution must be in line. It could also worsen political conflict as people who wish to amend these chapters would be prevented from voicing their opinion even in a supposedly safe space like the Constituent Assembly.

Parit calls on the Cabinet to revise the referendum question so that it asks only whether people want the Constitution amended, and if it wants to ask about whether Chapters 1 and 2 should be amended, it should make that the topic a separate question.

Ruchapong Chamjirachaikul

Meanwhile, Ruchapong Chamjirachaikul from the legal watchdog NGO iLaw said that he is unsure if it is true that most people are in agreement with the question proposed by the Committee and who these groups are, but he hopes that the Committee will release their public opinion report so that a list of those invited to give their opinion to the Committee would also be released.

Ruchapong said that iLaw representatives were invited to join a forum organised by the Committee to gather opinion on constitutional amendments, during which they told the Committee that such a question would not lead to a good outcome. He noted that most participants in the forum agreed that the first referendum question should not have any condition but should be designed to keep options open as much as possible.

He also said that there is no way of knowing what other conditions could be imposed on constitutional amendments. Since the Senate will be involved in the parliamentary debate on the components of the Constituent Assembly, they could impose other conditions.

“What we’ve always been saying is that the best way to prevent this is to start out with allowing amendment to the entire Constitution and for the Constituent Assembly to be elected. This way, the Senate can’t do much because it would be as if we’ve tied their hands,” Ruchapong said.

“Instead of letting the government tie our hands, we would be tying their hands so that they can’t put in any inappropriate conditions and to leave it to an elected Constituent Assembly. It would be open not just about Chapter 1 and Chapter 2. It would means that other things are still possible.”

Ruchapong said that the Cabinet does not have to approve the Committee’s proposal, noting that the proposal has already sparked a debate among the public and it is likely that people would vote against in the referendum. Prime Minister Srettha Thavisin will now have to decide whether to follow the Committee’s proposal or choose a different, less risky option. He stressed that the referendum question is not official yet, and there is time for demands to be made to the government.

“Whenever Srettha signed off on a question like this, the responsibility would also be on his shoulder, and if something happens, how should he take responsibility for it? This is something that we have to ask as well,” Ruchapong said.