Process matters in Constitutional Reform

After several months of internal party discussions and parliamentary sub-committee debate, on September 16 and 17 the Parliament met in a special joint session to consider potential changes to the Constitution for the express purpose of facilitating national reconciliation and political reform.

Following the session, Prime Minister Abhisit Vejjajiva proposed setting up a constitutional assembly to make changes to the Constitution. As envisioned, the assembly would be made up of MPs and the academic experts who drafted the 1997 and 2007 Constitutions, with the draft they produced then endorsed by the public through a referendum. 

In contrast to the prime minister's approach, Nakharin Mektrairat, the dean of political science at Thammasat University, thought there was probably no need for an assembly. He felt that needed changes could be made and endorsed by Parliament alone, and that a referendum would be a waste of money. Senate Speaker Prasopsuk Boondej also thought there was no need for a referendum, and that the participation of former members of the two constitution drafting assemblies would ensure public input into the charter rewrite. Puea Thai MP Surapong Towihcakchaikul thought there was no need for an assembly, and that Parliament should just address the six points identified by the charter reform sub-committee. These are a sampling of the opinions of prominent politicians and academics, but what do ordinary Thai people think?

Coincidentally, on the same day the Parliament began its special joint session on charter amendment, the Asia Foundation released its survey of the Thai people's opinions on constitutional reform (the complete survey report is available at www.asiafoundation.org). Several of the questions in the survey directly addressed the issue of how the Constitution should be amended, and thus the findings for those questions are relevant to the current debate. For example, two-thirds of those who expressed an opinion want some form of charter change (to amend the 2007 Constitution, return to the 1997 Constitution, or draft a new constitution).

Interestingly, the public's ideas about how the Charter should be amended are significantly different than those expressed by the prominent politicians and academics quoted in the media. Just 10 per cent support the idea that constitutional amendments should be drafted and endorsed by Parliament, while just 16 per cent approve of an amendment process led by experts. A strong majority (67 per cent) said they preferred a participatory amendment process that included consulting ordinary people across the country. When asked if constitutional amendments should be endorsed by Parliament or put to a national referendum, an overwhelming majority of 84 per cent opted for the referendum.

Although the prime minister has stated that he supports public participation in the reform process, it is unclear at present how this would be accomplished. While some see the inclusion in the constitutional assembly of the experts and academics who drafted the previous two charters as a form of public participation, it is clear that the average Thai disagrees.

Most Thais want to be consulted directly in the development of constitutional amendments, and want to have the final say on the adoption of a new or revised constitution. If the purpose of constitutional reform is to facilitate national reconciliation and political reform, the clearly expressed opinion of the Thai public should be respected.

The process for constitutional reform supported by the majority of Thai people aligns easily with best practices for constitutional development. Since a constitution is the basic law of the state, once enacted it is not subject to the normal political process. To the extent that contentious or politically unsettled issues are included in a constitution, the resulting document will be fragile.

A durable constitution will be based on a consensus as to the rules governing the political process, rather than try to resolve political questions and issues. By expressing their support for a participatory constitutional amendment process, the Thai people are opting for the process most likely to produce a consensus on basic rule, and thus a constitution broadly accepted as appropriate and legitimate.

The Foundation's survey results suggest that to help ensure that the constitutional reform process respects democracy and helps promotes national reconciliation, political leaders may want to consider sponsoring a public consultation process that is at least as inclusive and participatory as that which preceded the drafting of the 1997 Constitution, and follow that up with the innovation introduced with the 2007 Constitution - a referendum.

Tim Meisburger is the regional director for elections and political processes of the Asia Foundation. The opinions expressed here are his own.