Unamendability of the future past

The 2007 Constitution has gone but the precedent on unamendability might have a far-reaching impact on the current politics. Following the first general election in 2019, the calls for amendment grew.

The current 2017 Constitution is the product of the 2014 coup. Unlike its unsuccessful predecessor, the National Council of Peace and Order (NCPO) learned from the 2006 coup's mistake. It did not hasten to promulgate a consti­tution. Nor did they copy the 1997 spirit. Over three years, the NCPO carefully selected drafters and instructed them to follow its command. The NCPO offi­cially demanded a constitution with democracy that matched the Thai context, another reference to the idea of Thai-style democracy.^[641] The result was a draft constitution that, instead of restoring electoral democracy, facilitated the junta's transformation into a civilian government.^[642] The junta would appoint members to the Constitutional Court and watchdog agencies, as well as the senate.

The 2016 referendum was no less problematic than the 2007 one. The ques­tions were prepared in ambiguous language: most people later admitted they had no knowledge of what they voted for.^[643] Such ambiguity cloaked the real inten­tion of the draft which was to allow Prayuth a channel to become a civilian prime minister. The NCPO heavily suppressed critics, with lawsuits, intimidation, and even torture. Many opponents fled abroad. Meanwhile, it bombarded the pub­lic with misinformation about the new constitution.^[644] The Constitutional Court upheld the referendum law that was used to crush criticism of the charter draft.^[645] In sum, only praise was allowed.

The 2016 draft constitution faced more hurdles after the referendum. Mainly, King Bhumibol died in October 2016. King Vajiralongkorn refused to sign the law unless the government amended it upon his request, which granted him the power to intervene in politics.^[647] He did not sign the Constitution into effect until April 2017. Then, the NCPO kept postponing a general election until March 2019 when its proxy was ready.^[648] These factors - that Vajiralongkorn was able to

Thailand's unamendability 187 change the constitution post-referendum, and that the NCPO was able to ignore constitutional mandates easily - raised serious questions about the primary con­stituent power of this law. Whose will does this constitution represent?

Prayuth's electoral victory owed much to the malicious 2017 Constitution that designed a poor electoral system and biased election commission.^[649] At best, the 2017 Constitution facilitated farcical democracy, which places the major­ity and electoral politics under the guidance and manipulation of courts and watchdog agencies, populated by a network of conservative elites. Again, the pro-democratic camp had been contemplating constitutional amendments before its promulgation. Nonetheless, unlike the 2007 Constitution, the new procedure imposes almost impossible requirements for an amendment.^[650] An amendment must acquire consensus from the government, the opposition, as well as the sen­ate. An amendment to certain provisions requires a national referendum. It is also subject to the Constitutional Court's review prior to going into effect. Again, an amendment must not change the basic form of the democratic kingdom.

All of a sudden, in 2020, Thailand was plunged back to the years 2011-14. The sheer number of protesters in the streets indicated that a significant por­tion of Thais wished for constitutional change, which they wanted to achieve through formal amendment.^[651] There was a cacophony of voices, demanding various sections of the constitution be abolished or amended, including senato­rial appointment. Protesters also asked for another constitutional council and the restoration of the 1997 Constitution. Arguably, this call is more democratic and genuine than the referendum outcome. One amendment bill even gained signatures from more than 100,000 voters.^[652] The government skilfully rejected most of the proposals, including the popularly initiated one, but was pressured to accept amendment bills that would create another constitution drafting assembly in the 1997-style council. Eventually, the government figured out how to resist the people's demands by referring the case to the Constitutional Court.

Following its 2012 decision, the Constitutional Court identified the amend­ment bill as a replacement, which therefore needed more procedural safe­guards. Citing the people as the holder of the primary constituent power, the Constitutional Court ruled that the government must hold an extra referen­dum to determine whether the public desired a new constitution. If the public

approved, the draft constitution must be approved by another referendum.^[653] The pending amendment bill soon collapsed, much to the public's fury. The govern­ment offered a less ambitious choice of amendment, not replacement. It remains to be seen if these attempts will hit a roadblock in the form of explicit unamend­ability, as in 2013 and 2014.

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