The rocks and roadblocks on Thailand’s path to a new Constitution

The road to democracy is never easy, but the path is particularly steep for Thailand in its journey to amend the Constitution and eradicate the legacy of the junta. Analysts believe the country will have to wait until at least 2022 before it has a new supreme law.

After delaying the job for a few months, lawmakers last week passed two charter amendment drafts proposed by the coalition and opposition parties respectively in the first reading. The drafts pave the way for a Constitution Drafting Assembly (CDA) to write a new charter, but they leave chapters one and two on general provisions and the monarchy untouched.

A 45-member parliamentary panel was set up to vet the two drafts and is expected to report the results to Parliament within 45 days for second and third readings late next month or early 2021.

Although the two bills deal with the same subject, they offer very different versions of the CDA and the amount of time it can spend drafting the charter.

While the government’s bill proposes a mix of 150 elected and 50 selected members with a 240-day deadline, the opposition has proposed that all 200 members be elected and the job be done and dusted within 120 days.

The move to amend the Constitution comes amid mounting pressure on the government from youth-led protests calling for the resignation of Prime Minister Prayut Chan-o-cha, a more democratic Constitution and reform of the monarchy.

Critics say certain provisions in the charter are “undemocratic” and designed to enable Prayut to retain power following his 2014 coup as Army chief.

More than a year away

Though an official timeline for the new charter has not been set, Thailand is expected to have a new one in 2022 at the soonest if no legal hurdles get in the way.

Prayut said last month that the third reading for charter change motions should be completed in December.

For a bill to win parliamentary endorsement in the third reading, it needs support from more than half of Parliament or 376 votes, including at least 84 senators and 43 opposition MPs.

If the draft passes its third reading, it must then be put to a national referendum as it involves changes to the process of amending the Constitution. A new referendum bill will be considered in Parliament on December 1.

According to Deputy PM Wissanu Krea-ngam, who oversees legal affairs, the referendum process should be completed by April next year.

If the majority of citizens vote “yes”, the bill will be submitted for royal endorsement. If not, it will be rejected.

Once the amendment comes into force, the process of setting up a CDA, which takes around 90 days, should begin in June and the CDA could start writing a new charter in September – October.

According to the coalition-sponsored bill, the CDA must have the new charter ready in eight months or by June 2022. Then, the national referendum will have to be held within 45 to 60 days or by August.

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New hurdles

However, the door to charter change may be slammed shut by legal moves taken to block the bills that were passed last week.

A group of senators and ruling Palang Pracharath MPs have submitted a parliamentary motion seeking a Constitutional Court ruling on whether amendment drafts paving the way for a new charter are constitutional – a move seen by many as a delaying tactic.

The group claims the current Constitution allows the amendment of its articles, but does not allow the drafting of a new charter. Any action to allow the writing of a new charter would therefore be unconstitutional, says the motion, which is added to the parliamentary agenda on December 1.

Observers say if lawmakers agree to seek a court review, charter change will be delayed by at least another month.

Chaithawat Tulathon, secretary-general of the Kao Klai (Move Forward) Party, said the motion was designed to block the writing of a new document to replace the junta-sponsored charter. If lawmakers supported the motion, it would shut the door for charter amendment under a democratic regime, he added.

“A new charter may only be possible through a coup. This motion, which is aimed to protect the junta-backed charter forever, will ‘freeze’ Thailand,” he said.

Seeking the court review further complicates an already tense political situation as it will anger the protesters, said Yuthaporn Issarachai, a political scientist from Sukhothai Thammathirat Open University.

Wissanu, meanwhile, said he does not think the charter amendment bills are unconstitutional, but believes it’s better to seek clarity on the bills now rather than later.

He said the charter amendment process in Parliament could continue pending any court ruling.

Some critics say the court may not even accept the petition as the Constitution does not clearly say whether such a petition should be filed before a so-called unconstitutional action takes place. If this is the case, then the draft bills must pass the third reading before a court review can be sought, critics say.

However, if the court refuses to accept the petition citing the above reason, then lawmakers have the option of waiting until after the bills pass the third reading.

If the court agrees to accept a petition now, after the first reading, or later after the third reading, a ruling should come in around 30 days.

If it rules that a new charter can be written, then parliamentarians can continue the charter-change process. But if the court rules that Parliament is not authorised to write a new charter, then the two drafts will be voided and the dream for a new charter soon will be shattered.

Parliamentary rules say motions that share the same principles as those that have failed to pass cannot be reproposed in the same session. So, if the drafts fail, lawmakers will have to wait until Parliament reconvenes in May next year to submit new amendment motions.

 

Source: Thai Public Broadcasting Service (Thai PBS)