Charter move: A compromise or high stakes risk?

Constitutional reform is never easy, even for countries with less political strife. Thailand was lucky to go through an extraordinary process in 1997, when the so-called “People’s Constitution” was adopted, without much trouble. Now, the Yingluck government claims it wants to bring back that charter, or at least its essence. The differences between now and then are so many, but chief among them is the missing euphoria that marked the birth of the 1997 constitution.

That charter was abolished in the 2006 coup, but after the highest law’s spirit had been dragged through political mud over and over. The check-and-balance mechanisms and anti-corruption measures prescribed under that constitution were in tatters even before tanks rolled out of their barracks to overthrow the government of Thaksin Shinawatra. A post-coup charter was installed as a replacement, and although it contains most key elements of its predecessor, the new charter has been abhorred by one half of Thailand, mainly because of one special article. That article – No 309 – safeguards post-coup action, against alleged corruption of the Thaksin regime in particular. Article 309, its critics insist, is undemocratic and provides a bad example for future opportunistic generals to follow.

The ruling Pheu Thai Party’s attempts to nullify the 2007 charter and install a new one have got stuck in Parliament. To kick-start a constitutional revamp process, a bill has to be passed to essentially dissolve the 2007 charter and allow creation of a new one. The Constitution Court recently cautioned that a public referendum should be held to confirm whether the 2007 charter, which itself was passed via a public referendum before its promulgation, is no longer wanted. The Constitution Court’s stand put the court on a collision course with the ruling camp, which seemed to soften its approach a few days ago.

The government side is now willing to carry out a public referendum before having Parliament, which it dominates, give the bill a final go-ahead. 

In effect, the referendum will seek public consent on two key issues – the need for a brand new Constitution and the need to set up a drafting assembly to write it. Barring unforeseen incidents associated with such a referendum, this looks like a compromise on the government’s part.

Public disagreement with wholesale charter revamp, or with the idea of electing “drafters”, would still allow the government to seek selective changes to the current Constitution through the normal parliamentary channel. Politically speaking, the ruling camp does not really need a brand-new charter. Article 309 is the real target. While independent critics may view the article as undemocratic, the ruling party may see it as the reason why Thaksin still cannot return to Thailand or why an enormous chunk of the Shinawatras’ wealth remains locked in state coffers following the assets seizure shortly before the 2010 political turbulence.

The Pheu Thai Party is reportedly divided. One side does not like the idea of electing constitutional “drafters”, seeing their election and role as politically divisive and potentially explosive. The other side sees a Constitution Drafting Assembly as the only way to legitimise major charter shifts that could benefit Thaksin. This latter side cannot see how a Pheu Thai-dominated Parliament can effect such changes without being branded an abuser of democratic power.

Simply put, more moderate Pheu Thai factions do not mind having an early referendum and they do not mind if the early referendum kills the drafting assembly idea, believing that Parliament can effect desirable changes although the process may take some time. More extreme Pheu Thai factions want to go for broke. And they don’t care what the Constitution Court thinks.

It’s what the people think that probably counts more. Recent opinion polls have sent out unmistakable messages that the public dreads political confrontation over charter changes. While many in Pheu Thai may not want to pay attention to the Constitution Court’s stand, the ruling party may find it politically risky to be absolutely confrontational.

An early referendum, however, carries its own risks. First, the government must be sure the voter turn-out is roughly more than 22 or 23 million people, or more than half of all eligible voters. A lower turn-out would nullify the referendum completely. Even if the turn-out meets the requirement, the government is not 100 per cent sure it will get a resounding “Yes, we want a brand new charter written by a Constitution Drafting Assembly” from the Thai public. If the government loses the vote, an unlikely but possible scenario, its charter agenda could die very young.

An early referendum is a compromise by all means. Whether it will be enough of a compromise for the public is another matter. Some Thai political watchers will take it. Others see charter amendment at a time like this and with issues so contentious involved as a high-stakes gamble, and that the eventual winners are not guaranteed anything concrete.