The Royal Prerogative to Veto Draft Constitutions and Constitutional Amendments: An Analysis from the Perspective of the Constituent Power Theory and Thai Constitutional Court’s Decisions

Abstract

The article aims to study the monarch’s royal prerogative to veto the draft constitutions and constitutional amendments. This prerogative was examined through related theories, constitutional provisions, and comparative constitutional history in the context of politics and government in Thailand and abroad, as well as court rulings. The goal was to better understand the use of royal powers in the constitutional process. The study indicates that most Thai constitutions have legislated to recognize such royal prerogative, both explicitly and implicitly. Although the Constitution of the Kingdom of Thailand, Buddhist Era 2560 (2017), does not explicitly legislate the royal power to veto additional constitutional amendments, it also does not provide the legislature with the authority to confirm such amendments for the Prime Minister to proclaim in the Royal Gazette as the Constitution of the Kingdom of Thailand, as if the King had already given his Royal Assent as in previous constitutions. The Constitutional Court, stating in its rulings that no constitution of the Kingdom of Thailand has ever been completed without the consent of the King, who is the Head of State, suggests that the Court tends to view the King as the final authority in deciding whether any political document becomes or does not become the constitution. While some rulings of the Constitutional Court refer to the constitutional founding power as belonging to the people, the aim is to make the amendment of the constitution more difficult, thus reflecting a judgement in the context of maintaining the constitution as the supreme law without denying the status of having the final decision-making authority. This reflects the phenomenon in the current constitution-making process where the King has participated in defining the content of the new constitution draft and has the power to veto amendments passed by referendum, without any constitutional means for the public to confirm the intention to use the original draft in any way.