The Thai protests in 2020 had three demands: the resignation of Prime Minister Gen Prayut Chan-o-cha, amendments to the constitution, and monarchy reform. After all the struggles last year, the most promising demand is the constitutional amendment. In November, parliament accepted a motion to amend Section 256 to allow an elected Constitutional Drafting Committee.

However, constitutional amendment is also a most complicated topic. It involves many technicalities, and yet it affects so many sectors in Thailand. Public figures and numerable groups in civil society have pointed out problems with the constitution for years, but the information is scattered and difficult to find.

In this report, we have collected as many of their points as possible. The problems of the 2017 constitution include problems over the drafting and approval process as well as problems over content. Some of the problems have lingered from the past constitutions and remain unsolved. Having the information in one place might explain why the Thai protesters have been calling for constitutional amendment.  

Problems over the drafting and approval process

• The constitution was drafted in 2015-2016 by a committee appointed by the military junta who came to power through a coup.

• It was approved by a questionable referendum in 2016. Campaigns for a no vote or abstention were restricted, obstructed, and prosecuted by the police and military.

• The referendum added a misleading question about allowing unelected senators to vote in the selection of the prime minister and the 20-year National Strategy together with elected members of house of representatives.
   
• Before the constitution was promulgated, King Vajiralongkorn asked the junta to revise 7 of its sections even though it already passed the already questionable referendum. His request was followed.

Problems over the content

About executive power 

• Section 272 allows parliament, in the first five years of the constitution, to nominate an outsider prime minister who does not have to come from an election.

• Section 88 allows political parties at a general election to nominate candidates for prime minister without them having to be elected members of the House of Representatives.

• Chapter 8 on the Cabinet does not require cabinet members to be members of the House of Representatives, allowing the putschists to appoint cabinet members of their own choosing.
   
• Section 252 allows “other ways” apart from elections for individuals to come into power in local government. Even though local administrations are currently elected, the government may make use of this clause in the future to come up with new local administrators without them having to be elected.     

About the unelected senate

• Section 107 said that after the first five years, there will be 200 senators, down from 250 during the first five years.

• Section 269 allows in the first five years of the constitution the putschists to appoint 250 unelected senators. 6 senate seats are reserved for the Supreme Commander of the Royal Thai Armed Forces, the Permanent Secretary for Ministry of Defence, and the Chiefs of the Royal Thai Army, Royal Thai Navy, Royal Thai Air Force, and Royal Thai Police.

• Section 270 allows the 250 unelected senators in the first five years of the constitution to vote together with the House of the Representatives on laws which the cabinet considered as relevant to National Reform according to Chapter 16. 
   
• Section 271 allows the 250 unelected senators to vote together with the House of Representatives on a law consideration of which was withheld by the senate or the house, if that law exonerates a member of the legislature, judiciary or executive of malfeasance or seriously affects the administration of justice.

About the election of Representatives

• Sections 90–91 mandate a Mixed Member Apportionment System for Thai general elections. The Organic Law on Elections and the 2017 Constitution as interpreted by the Election Commission appointed by the putschists, allowed a strange system for calculating the votes needed for a party to successfully seat a part-list MP which resulted in the emergence of pro-government “micro-parties,” one of which earned a seat with as few as 35,000 votes nationwide or 0.1% of the total votes

About the continuation of the putschists’ power 

• Sections 65 and 275 have allowed the putschists, also known as National Council for Peace and Order (NCPO), to appoint a committee to draft a 20-year National Strategy to be imposed on future governments.
   
• Section 279 legalizes the orders of the NCPO, thus giving them political amnesty.
   
• Seven organic laws to the Constitution allow the NCPO to meddle into the selection process of the independent bodies including the Constitutional Court, the Election Commission, the National Ombudsman, and the Anti-Corruption Commission. These independent bodies have returned the favour by acquitting the establishment of legal charges and attacking their political opponents.
   
• An anti-coup clause in the 1997 and 2007 Constitutions to the effect that “a person shall have the right to resist peacefully any act committed for the acquisition of power to rule the country by means which is not in accordance with the modes provided in this constitution” is not found in the 2017 Constitution. 

About religion

• Section 31 mentions the right to the freedom of religion but not the right to freedom of thought and conscience. Puey Ungphakorn had proposed that this should have been added to the 1974 Constitution to provide a legal basis for conscientious objection.

• Section 96 restricts the right of Buddhist monks to vote. Section 133 says that only eligible voters have the right to propose laws. Laws related to monks are imposed on them without their say.

About public health

• Section 47 (1) says that “an indigent person shall have the right to receive public health services provided by the State free of charge as provided by law.” The term “as provided by law” was added to the 2007 Constitution.

• A clause to guarantee that “a person shall have the right to receive comprehensive and efficient public health services from the State”, which appeared in Section 51 (2) of the 2007 Constitution, is not found in the equivalent section of the 2017 Constitution (Section 47).

• Section 47 (3) says that “a person shall have the right to the protection and eradication of harmful contagious diseases by the State free of charge.” The term “prompt” before “protection and eradication” was removed despite its existence in the equivalent section of the 2007 Constitution (Section 51). (A mistranslation from Thai to English by the Office of the Council of State also added “as provided by law” to this section.)

About marginalized persons

• A clause to guarantee equal access to education for people with disabilities, the poor, and people in hardship, which appeared in Section 49 (2) of the 2007 Constitution, is not found in the 2017 version.

• A clause to guarantee the equal right for the people with disabilities to get access to, and make use of, welfare, public facilities, and appropriate aids from the state, which appeared in the Section 54 of the 2007 Constitution, is not found in the 2017 version.

• A clause to guarantee appropriate aid from the state for homeless people and people with insufficient income, which appeared in the Section 54 of the 2007 Constitution, is not found in the 2017 Constitution, which instead combines the state’s obligation to provide appropriate housing with strengthening the family, health promotion, and excellence in sports in Section 71.

About the monarchy

• Section 6 gives the King immunity from any violation, accusation, or legal action. 

• Sections 10-14 establish the Privy Council, a constitutional body which the pro-democracy protesters want to abolish as unnecessary. 

• Section 15 (1) says that “the appointment and removal of officials of the Royal Household shall be at the King’s pleasure.” Section 15 (2) says that “the organisation and personnel administration of the Royal Household shall be at the King’s pleasure as provided by Royal Decree.” The protesters call for the abolition of the Royal Household by dissolving unnecessary units in the Royal Household and transferring the units with clear duties (for example, the Royal Security Command) to other agencies.
   
• Section 16 says that “whenever the King is absent from the Kingdom or unable to perform His functions for any reason whatsoever, the King may or may not appoint one person or several persons forming a council as Regent.” The Section provides grounds for the protesters’ call for the German government to investigate whether King Vajiralongkorn governed Thailand from German soil.

About lack of process to solve a constitutional crisis

• Section 5 (2) says only that “whenever no provision under this Constitution is applicable to any case, an act shall be performed, or a decision shall be made in accordance with the constitutional conventions of Thailand under the democratic regime of government with the King as Head of State.” After King Vajiralongkorn’s intervention to change the draft before final approval, a clear process for deciding the definition of “constitutional conventions” was removed. In a former draft, the Constitution said that Section 5 (2) shall be implemented by the President of the Constitutional Court convening with the House Speaker, the Leader of the Opposition, the President of the Senate, the Prime Minister, the President of the Supreme Court, the President of the Administrative Court, and the Presidents of Independent Organs to vote on the matter.

Difficult amendment

The amendment process under the 2017 Constitution is harder and more complicated than those of the 2007 and 1997 constitutions. Section 256 of the 2017 Constitution is central to the problem. Under the previous constitutions, parliament required only a majority vote to pass a motion. There was no specification over the percentage of votes required from members of the House of Representatives or members of the Senate.

Under the 2017 Constitution, a proposal can be made either by the cabinet, one-fifth of the current members of House of Representatives, one-fifth of members of House of Representatives and Senate, or 50,000 citizens eligible to vote. When entering the floor of parliament, the proposal will go through three readings.

The first reading is to approve the principles of the constitutional amendment. It requires at least one half of the total votes in parliament (375 from both the House of Representatives and the Senate). At least one-third of the unelected senators is also required to pass the motion.

The second reading considers the constitutional amendment in details. These shall be approved by a majority vote of parliament. If the amendment is proposed by citizens, the citizens who have proposed the amendment can send a delegate to speak in the parliament.  If the motion passes the second reading, there is an interval of 15 days before the third reading begins.

The third reading also requires a majority vote of the parliament. However, that majority must also include one-third of the Senate, and 20 percent of MPs from all political parties which do not hold positions as cabinet members, Speaker of House of Representatives, or Deputy Speaker of House of Representatives.

Even though there have been prohibitions against changing the form of state in every constitution throughout Thailand’s history, there has been no restriction against amending specific chapters or sections. Even then, some sections are more difficult to amend than others under the 2017 Constitution.

After the third reading, there will be an interval of 15 days before the Prime Minister sends the final draft to the King to sign. However, the government must hold a national referendum if the constitution amendment involves Chapter 1 (General Provisions), Chapter 2 (The King), or Chapter 15 (Amendment to the Constitution).

The government must also hold a referendum if the amendment involves qualifications and prohibitions of persons holding the 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.

If the amendment is suspected of being unconstitutional, one-tenth of the total number of the current members of parliament has the right to file a joint petition with the Constitutional Court where it shall be decided within 30 days whether the draft would amount to “changing the democratic regime of government with the King as Head of State or changing the form of the State” according to Section 255. 

Thanks to the pressure from the nationwide protests, the parliament started working to amend Section 256 in November last year to remove the specification on the number of votes from the House of Representatives and of Senate, and to set a requirement that the government must hold an election to establish a Constitutional Drafting Committee for future constitutional amendments. 

However, amendment of Section 256 would have to pass through the whole process as mentioned above, which would take at least 4 months from the parliament to the referendum. So amendment of Section 256 would be complete in March or April.  

But a motion was passed on February 9, with a majority mostly from by the ruling Palang Pracharath Party and the Senate to refer the amendment process to the Constitutional Court, supposedly to establish that the proposed amendment was legitimate.  Many saw this move as a deliberate attempt to hijack the process and delay it even further, since the court could take months to reach a ruling.

Even without this detour, it was anticipated that the elections for the Constitutional Drafting Committee would take around a year to complete if and when Section 256 was successfully amended.

At this rate, the process of amending the constitution may last longer than the life of the current government, which ends at the latest in March 2023.