legitimacy concerns shadow referendum

An amendment to the interim charter to make it easier for the draft Constitution to pass the public referendum is a double-edged sword. On the one hand, it's obviously a lot less difficult for the draft to clear the final hurdle when it needs to be approved only by the majority of people who cast their votes. There’s a big numerical difference between the “majority of the turn-out” and the “majority of eligible voters”.

On the other hand, while it will be legally easier, it can be politically harder. The change to the interim charter means that if only 20 million eligible voters show up to vote, the draft will require slightly more than 10 million yes votes to become Thailand’s new Constitution. The old rule would have required considerably more than 20 million yes votes, since the number of eligible voters in the country is way beyond 40 million.

Should a draft Constitution supported by just over 10 million people become the country’s new charter? 

Of course the critics will say no and they will have strong reasons. The draft, which is already facing legitimacy questions, not least because it’s largely considered the result of a coup that overthrew an elected government, will encounter more criticism regarding public acceptance. Thailand might eventually be staring at a return to Square One with one political party basing its election campaign on a promise to change the “unfair” Constitution.

It’s understandable why the military government would like the charter draft to clear the referendum. Threats of a boycott by the anti-military movement make it likely that the document may not get enough yes votes to pass the “majority of eligible voters” requirement. 

Making it harder for the draft to win in the referendum is the fact that most politicians, regardless of where they stand in the current strife, are unhappy with the document.

However, it’s a bit tricky for the anti-military camp to discredit a charter draft supported by less than half the eligible voters. 

This camp is highly associated with the Pheu Thai Party, which won an election in 2014 in a very contentious manner. The election was boycotted by the anti-government movement, which insisted that an undefined political reform must be implemented first. Due to the boycott, less than half of eligible voters cast their ballots. Pheu Thai won that election, but the question immediately arose as to whether the majority of eligible voters in fact wanted reform first.

Ironically, the decision to change the interim charter so that the current charter draft could clear the referendum was influenced by what happened at that election. Sources close to the military reportedly expressed concern that a boycott could combine with the no votes to defeat the draft. 

The change means the military government is hell-bent on getting the draft passed, which in a way is good news for both pro- and anti-military camps.

The military’s determination to get the charter draft approved could be bad news for certain groups of politicians, but for those craving a return to democracy, having the draft clear the referendum would at least lead to an election. 

The draft being rejected would create uncertainty and unpredictability, affecting our fragile political peace. There could even be fresh turmoil, while the return to civil rule would be further delayed.

In addition to the basic content of the draft charter, voters will have to take such potential political consequences into consideration. On paper, it’s all about marking yes or no. In reality, the referendum is not so simple.