To fix political problems arising from the conservative constitution imposed by military leaders after their 2014 coup, Thailand needs a new people’s charter. However, concerned parties are worried that procedural stumbling blocks will make it difficult to get one before the next election in 2027.

Thailand has a reputation for frequently changing constitutions.  While it is not in first place, it has had more charters than most, mainly because the country has experienced dozens of coups that installed juntas which invariably drafted new ones, as happened in 2017.

The current Constitution is problematic in terms of both its origin and its content.  Drafted by a military junta led by former prime minister Gen Prayut Chan-o-cha, it has constrained the rights of the people for the past seven years.

Efforts to amend it began almost as soon as it was promulgated. In the last election campaign, for example, the ruling Pheu Thai Party promised to draft a “people’s constitution” through an elected constituent assembly.

The process is expected to take at least three years.  However, only two years and eight months before the next election, the ruling party has yet to begin things, and procedural stumbling blocks may delay matters further.

This said, both the Pheu Thai and People's Parties are reportedly prepared to propose draft constitutional amendments. If the schedule set by the House Speaker is not changed, the issue might be considered by both houses in the middle of next month.

Controversial referendums

Last April, former PM Srettha Thavisin’s cabinet approved a study committee’s proposal for a triple-referendum process. The first referendum was supposed to be conducted between 21 July and 21 August 2024, but the plan went awry.

Section 256 of the 2017 constitution stipulates that after a motion to amend the Constitution passes three readings in parliament, a referendum shall be held before the draft is passed to the King to be signed into law.

However, according to iLaw, the meaning of Section 256 was called into doubt when Paiboon Nititawan, an MP from the Palang Pracharath Party, and former senator Somchai Sawangkarn filed a petition with the Constitutional Court, to clarify whether parliament has the authority to amend the Constitution.

In 2021, the Court ruled that parliament did have the authority provided they held two referendums: one to ask people whether they want a new constitution and a second to approve the new draft upon completion.

Paiboon and Somchai took this to mean that until until an initial referendum was held, parliament has no authority to proceed with the amendment.

After last year’s election, both Pheu Thai and Move Forward parties agreed that a triple–referendum process would be necessary to avoid Senate censure.  Instead of organising the first referendum, however, the new Srettha government established a referendum study committee.

Eventually it proposed that a first referendum be held before a draft amendment passed its first reading, a second held to determine the process of drafting a new constitution after the draft passed a third parliamentary reading, and a last one held once the Constituent Assembly completed the new draft.

The most controversial part of the proposal was its first question: “Do you agree that a new constitution should be drafted without amending Sections 1 and 2 that pertain to the King?”

It was generally recognised that framing the question this way would create problems, especially with those who wanted a completely new constitution.

Double majority is seen unfair

The 2021 Referendum Act also stipulated that passage required a ‘double majority’: a turnout of more than half of all eligible voters, at least half of whom voted in favour.

Several parties called for the amendment of the Referendum Act to eliminate the double majority clause on the grounds that it would slow the referendums and not really be fair, as those seeking a ‘no’ vote could easily organise a boycott.

A revised draft was eventually approved by the House of Representatives on 21 August and forwarded to the Senate, which voted to establish an ad hoc committee and review the draft within 60 days.

If the Senate makes significant changes, the referendum process will experience further delays.

On 20 September, however, a spokesperson of the ad hoc committee asserted that the lower house draft would not be altered.  The committee is expected to hold its final meeting next week and report to the Senate Speake, raising the possibility that the draft will be considered by the Senate on 1 October.

Two referendums are enough

In a seminar discussion of the new constitution on 19 September, Natthaphong Ruengpanyawut, leader of the People’s Party, insisted that triple-referendum process is not legally required, given that the Constitutional Court has already ruled that two referendums are sufficient.

Meanwhile, a civil group Con for All has expressed concern that if the government proceeds with a triple-referendum process and sets conditions for certain sections, there is little chance that the people's constitution will be completed before the next election.

Con for All proposes that the first referendum recommended by study committee be ruled out. It calls as well for parliament to immediately consider constitutional amendment and establish a Constituent Assembly to draft one that can be approved through a referendum at a later stage.