Why the National Assembly cannot Authorize Direct Popular Election of Constitution Drafters? : A Case Study in Constitutional Court Rulings and Thai Political History

Abstract

This article analyzes principles of Thai constitutional law through the lens of Constitutional Court Ruling No. 18/2568, specifically regarding the holding that “the National Assembly cannot authorize the direct election of constitution drafters by the people.” This ruling constitutes a critical issue in determining the criteria and procedures for drafting a new constitution under the permanent constitution currently in force. This article draws on the theory of constituent power (le pouvoir constituant), Thai constitutional history, and comparative experiences of constitution-making for political reform, this article examines the principle that the enactment of a new constitution is an exercise of the people's constituent power. It focuses in particular on Constitutional Court precedents necessitating at least two stages of national referendums: first, to ascertain the public will regarding the desire for a new constitution, and second, to ratify the drafted constitution.

However, interpretations regarding the requisite frequency of referendums at each stage remain a subject of significant constitutional and political debate. This ambiguity necessitated the Constitutional Court’s 2025 ruling to resolve such uncertainty. This article illustrates that the democratic quality of a constitution does not depend solely on the origin of the drafting body, whether it is a Constitution Drafting Assembly, a group of experts, or a non-directly elected institution, but rather on the substance of the constitution itself. Furthermore, it highlights that establishing a Constitution Drafting Assembly may engender conflicts regarding power dynamics with the National Assembly if the design of its origin or process lacks clarity and sufficient legitimacy.

The article concludes that the essence of drafting a high-quality, democratically acceptable new constitution lies not solely in the form or origin of the drafters, but in the design of a legitimate process capable of mitigating political conflict. Crucially, such a process must facilitate the participation of the people through referendums at appropriate stages, serving as a fundamental guarantee for achieving a new constitution that possesses both stability and genuine democratic quality.