Rewriting the constitution should be a breeze, given the overwhelming support for the effort to see it through in the House of Representatives.
However, it is far from easy. The formidable hurdle standing in the way of success is the referendum. A referendum must be passed to authorise a wholesale change to the charter.
Remnant of dictatorship
This year has seen dramatic pushes primarily by the opposition People's Party and the ruling Pheu Thai Party to get the referendum business out of the way so the lawmakers could zero in on a constitutional redraft.
The pushes were engineered on the premise the country's 20th constitution promulgated in 2017 was essentially a remnant of dictatorship, conceived and passed with the backing of coup-maker National Council for Peace and Order which swept the Prayut Chan-o-cha administrations to power.
Critics pointed to a provisional clause in the charter which stipulated the Senate handpicked by the NCPO was duty-bound to join the MPs in co-electing a prime minister.
The clause was blamed for PP former leader Pita Limjaroenrat missing out on the prime minister's seat with senators having voted down his nomination after last year's general election.
Instead, the Senate seconded Pheu Thai's prime ministerial candidate Srettha Thavisin.
The prime minister co-election clause expired in May this year as the NCPO-chosen senators were succeeded by the cross-professionally elected replacements.
Despite being dubbed the "cheat-buster" constitution, it is attacked for having excessively augmented the authority of the independent agencies. A case in point is the Constitutional Court whose ruling can remove political postholders including the prime minister from office, says the Internet Dialogue on Law Reform (iLaw).
Also contentious was the constitution's lack of pathway for people to petition for impeachment of public office-holders, contrary to the previous charters. The 1997 constitution permitted at least 50,000 eligible voters to lodge such petition with parliament and the 2007 charter reduced the minimum petitioners to 20,000.
Nikorn: 'Cooling off' period causes squeeze
Simplify referendum
PP and Pheu Thai have been at the forefront of the campaign to simplify and hasten the referendum process by doing away with what they contend to be the biggest underlying complication: the double-majority rule.
The rule has proven to be much thornier an issue to thrash out than was originally anticipated. Resolving the divisions it has generated within the House has also been an exercise in futility.
The first sign of trouble traces back to January when Pheu Thai sought the Constitutional Court's ruling on how many charter amendment referendums should be organised.
An government-appointed committee was preoccupied with drawing up new guidelines for holding a referendum. It was chaired by Deputy Prime Minister and Commerce Minister Phumtham Wechayachai.
The Phumtham panel backed a proposal to hold three charter amendment referendums, as ruled by the court, costing 10.5 billion baht in total.
The first one would ask if voters agree with a charter rewrite; a second whether Section 256 of the constitution, which makes way for the setting up a charter drafting assembly (CDA), needs amending; and a third on whether voters' support for a new charter should be adopted.
The two-referendum calls involve asking people if they want the charter amended. If the first referendum is approved, a second would follow to let people decide whether to give the new version the green light.
However, Pheu Thai's internal working team advocated only two referendums to save money and time, a stand shared by the now-dissolved main opposition Move Forward Party (MFP), which was the PP's predecessor.
The two largest parties also banded together and presented two bills to alter the Referendum Act -- one initiated by coalition parties and the other sponsored by the opposition bloc -- to House Speaker Wan Muhamad Noor Matha.
In April, the cabinet gave nod to the Referendum Act 2021 being amended to abolish the "double majority" rule, which requires more than 50% of eligible voters to participate in a referendum and most of those voting to approve the new charter.
The rule was criticised for making it tough for a referendum to achieve the minimum requirement and for impeding a smooth passage of essential laws, particularly bills seeking to amend the constitution. A special committee was formed in parliament to delve into altering the referendum law.
Come the middle of June, the House accepted for consideration four bills seeking to rectify the Referendum Act at their first reading. Altogether 450 MPs voted in favour, with one abstention. The bills were tabled separately by the cabinet, the ruling Pheu Thai Party, the opposition Move Forward Party (MFP), and the Bhumjaithai Party.
They shared a common goal of removing the contentious "double majority" requirement under the Referendum Act and favoured only a single majority or more than half of the votes cast.
The double majority refers to two conditions necessary before a referendum result can be considered binding under Section 13 of the Referendum Act. First, more than 50% of eligible voters must have participated in the referendum, and second, the majority of those who cast their votes must have approved.
In July, the House panel vetting four bills seeking to amend the referendum law decided to adjust the timeframe for holding a referendum on a charter rewrite. Previously, the committee agreed the first referendum round on a charter rewrite would be held the same day as either a general election or a local election.
Mr Nikorn said the panel has concluded the referendum will be held no sooner than 60 days before an election day and no later than 150 days after.
In late August, tension began to escalate as the fate of the double majority was being decided.
Senate for double majority
A growing number of senators voiced stiff opposition to the referendum bill passed by the House. They resisted the bill replacing double majority requirement with a single majority trumpeted by the House of Representatives.
At the same time, the third-rank Bhumjaithai made an about-face when it announced it no longer sided with the double-majority rule being axed. It took the Senate line that referendums decide significant national issues which demand a thorough approval process, so the bar must be raised high.
PP list MP Parit Wacharasindhu said he feared the double-majority rule would encourage people in the wrong way. Voters out to sink a referendum would resort to abstaining from voting, forcing the double-majority rule to fall short.
"This is not about increasing the ease of passing a referendum. But the rules should not permit one side to gain an undue advantage by campaigning for a referendum no-show," Mr Parit said. Many senators are believed to be "blue-affiliated." Blue is Bhumjaithai's colour.
In early October, the House rejected the Senate's change to the referendum bill to reinstate the double majority rule on a vote of 348 to zero, with 65 abstentions. Bhumjaithai opted out of the rejection vote.
Unable to resolve their dissenting views on the double-majority clause, the two Houses set up a joint committee to iron out their differences. The 28 seats on the panel were equally split between the two Houses, and the Senate was scheduled to name its committee members on Oct 15.
However, the formation of the panel raised eyebrows when two MPs put their hands up and joined the Senate in a vote to install Pol Maj Gen Chattrawat Saengpet, a senator, as the committee chairman, a seat which could exert dominance at meetings where critical decisions must be reached.
Seeing that neither House was willing to make concession, Nikorn Chamnong, secretary of the committee, proposed a "one and a half" majority rule, in which the motion backed by more than 50% of eligible voters in a referendum is retained, but the motion does not necessarily have to be backed by a majority.
He said the option was mentioned in a report on charter amendments considered by the cabinet back in April. Pheu Thai, however, chided his input, which ended in a debacle, as being almost identical to the double majority.
Wissanu: More trouble than needed
'Cooling off' period
The joint committee announced early this month that in light of the unresolved tussle, a mandatory 180-day "cooling off" period will apply before the move to amend the referendum bill resumes.
It means a charter rewrite will not be finished within the tenure of the current government, according to the joint panel. After the period lapses, the House may insist on the single majority overriding the double majority and unilaterally pass the bill into law.
Mr Nikorn said with the cooling-off period factored in, it is unlikely there will be enough time left within the current government's tenure to complete the charter rewrite.
Wissanu Krea-ngam, a former deputy prime minister and legal expert, agreed the referendum presents what look to be insurmountable legal and technical hurdles in passing a wholesale constitutional amendment within the current term of the House of Representatives.
The bill to prepare the groundwork for a referendum appears to be giving lawmakers more trouble than they need, he said. At least three referendums, as ruled by the court, must be organised with an approval vote before major changes can be made to the charter. Mr Wissanu said the best option was a 'limited charter amendment' where the constitution is rewritten section by section, which does not require a referendum to be conducted.
Parit: Wants job done before poll
Staying put
Mr Parit, meanwhile, is still pushing two referendums. He recently proposed the creation of the charter drafting body should proceed in parliament during the cooling-off period, to save time.
However, chief government whip Wisut Chainarun rejected his suggestion, insisting the 180-day suspension must be observed.
While welcoming the possibility of having just two charter referendums, Mr Wisut said he had consulted parliament's legal team and parliament president Wan Muhamad Noor Matha who insisted the 180-day suspension period needs to lapse before further action can be taken.
He added the charter rewrite process is unlikely to be completed before the next election in 2027.
The opposition party says two referendums are sufficient for the proposed charter rewrite and would not be in violation of a recent Constitutional Court ruling. This would have a new constitution up and running before the next election.
However, analysts believe otherwise, especially after the lingering disagreement between the House and Senate over the referendum rules.
