On 8 February 2026, Thai voters will elect a new national parliament. On the same day, they will also be asked whether the country should adopt a new constitution. The referendum poses a starkly simple yes-or-no question. Yet voters are asked to decide without knowing what they are voting for. No draft exists, no constitutional model has been presented, and no clear process has been outlined.

This is not a procedural accident. It is the latest manifestation of Thailand’s long-standing anti-popular constitutionalism, a pattern in which constitutional change is formally put to the people while substantive control remains elsewhere. The referendum promises participation but withholds constituent power.

What is at stake, therefore, is not merely another failed reform attempt. The vote brings into sharp focus a deeper conflict over constitutional authority in Thailand. The decisive question is whether the Thai people are allowed to act as the authors of their constitution, or whether constitutional change will once again be managed without them.

Mail from the Election Commission

When I recently opened my apartment’s mailbox, a light-blue leaflet caught my eye. It was slim, 30 pages long, printed on extra-thin paper, with the Democracy Monument on the cover. Issued by the Thai Election Commission, it was meant to inform voters about the upcoming constitutional referendum to be held on Sunday, 8 February 2026, alongside the parliamentary election. Curiously, the date itself appeared nowhere in the leaflet.

Flipping through the pages, I noticed the unusually large font, clearly designed to ensure readability for as many recipients as possible. This visual accessibility stood in awkward contrast to the leaflet’s techno-legal language. Still, driven by both personal and professional interest, I began to read. The first thing to look for was, of course, the referendum question: “Do you agree that there should be a new constitution, or not?” (translation from Thai)

Perhaps not only lawyers but any moderately prudent person might instantly think: Well, it depends. What would a new constitution contain? How would it differ from the current one? Where is the draft?

There is none. The referendum question indeed asks voters, in the abstract, whether they prefer a new constitution over the existing one. At the same time, the leaflet notes that this vote would not be decisive. If the proposal passes, two further referenda must follow before a new constitution can be adopted. According to the leaflet, this multi-stage process is required by the Constitutional Court.

Anti-popular constitutionalism

Constitutional referenda and the exercise of constituent power are commonly associated with popular empowerment. In Thailand, however, the requirement of three consecutive referenda points in the opposite direction. Rather than facilitating constitutional change, the multi-stage vote erects procedural hurdles that dilute the popular decision-making process. This architecture reflects a broader anti-popular drift in Thai constitutionalism, past and present.

Thailand’s 2017 Constitution is the kingdom’s 20th constitution since the transition to a constitutional monarchy in 1932. Military coups and recurring political turmoil have produced a rapid succession of constitutional texts, stitched together from a variety of sources. Throughout these changes, the core ideological triad of “nation, religion, king” has remained largely intact.

The 2017 Constitution emerged from the military coup of May 2014. Drafted in 2015 and 2016 by a fully appointed committee, it entrenched military-aligned influence within the political system. Most visibly, it did so through an appointed Senate wielding decisive power within the bicameral parliament and beyond.

The constitutional design made sure that the 2023 election-winners from the Move Forward Party (formerly Future Forward, currently People’s Party) and their leading prime-ministerial candidate, Pita Limjaroenrat, were blocked from forming a government.

Beyond electoral engineering, the constitution granted blanket amnesty to those involved in the 2014 coup and enshrined a 20-year “reform” agenda. In addition, it preserved five so-called independent oversight bodies tasked with supervising politicians and political parties. While these institutions predate the 2017 charter and were first introduced under the comparatively democratic “People’s Constitution” of 1997, they have been criticized for serving the interests of conservative elites.

Moreover, the Constitutional Court has increasingly come under criticism for its role in dissolving political parties and banning individual politicians. Accusations of double standards have intensified as decisions against officeholders from opposing political backgrounds appeared difficult to reconcile with one another. Rather than operating as a neutral arbiter, the Court has come to be perceived as an actor that selectively intervenes in the political process.

The latest episode of Thailand’s anti-popular constitutionalism followed when the Court demanded three referenda for the adoption of a new constitution. Presented as a procedural requirement, this demand adds another layer to an already complex process of constitutional change.

Three referendums for a new constitution

The 2017 Constitution contains provisions on constitutional amendments (Sec. 255, 256). It remains silent, however, on whether and how Thailand might adopt an entirely new constitution. When political turmoil erupted in 2020, it generated renewed momentum for constitutional change. This led to a motion asking the Constitutional Court to clarify the constitutional requirements for replacing the existing constitution.

In decision no. 4/2564 (2021), the Court ruled that the current 2017 Constitution could indeed be replaced. To do so, parliament would first need to insert a new chapter regulating the constitution-making process. Before any drafting could begin, the people would have to be asked if they wanted a new constitution at all. A second referendum would then be required to approve the draft constitution.

The 2021 ruling left one question open. Could parliament insert that new chapter without holding a referendum first? Thus, the Court was asked to clarify. In decision no. 18/2568 (2025), it ruled that the process requires, in fact, not two, but three referenda.

The first asks the people whether they want a new constitution in principle. It can take place before parliament even drafts the constitutional amendment on constitution-making. This referendum is now scheduled for 8 February 2026.

The second approves the draft amendment that inserts the new chapter on constitution-making (according to Sec. 256(8) of the 2017 Constitution). The Court held that this vote could happen separately or jointly with the first-stage referendum. The government chose separate votes.

The third approves the new constitution itself, once it has been drafted according to the amended chapter.

The second-stage referendum follows the existing amendment provisions under the 2017 Constitution. The third, by contrast, reflects the people exercising constituent power. But why must the people, at the first stage, endorse the idea of a new constitution in the abstract, without any indication of its future content?

The constituent power conundrum

The Constitutional Court’s rulings in 2021 and 2025 rest on a curious premise. The Court argued that when the 2017 Constitution remained silent on how to adopt a new constitution, this silence expressed the people’s will: After all, a majority had approved the entire constitution in the 2016 referendum, including its chapter on amendments (61% in favor of the constitution, 59% turnout).

Consequently, the Court reasoned, if the people wanted the power to make a new constitution, they must express that intention, again, through a referendum. At the first stage, they must agree to prepare a constitutional amendment that permits and regulates the making of a new constitution.

This reasoning suggests something remarkable. When the Thai people approved the 2017 Constitution, they voluntarily agreed to refrain from using their constituent power. They can, however, re-activate that power through a successful referendum. In other words, constituent power does not permanently and unconditionally reside with the Thai people. They can suspend their power – and reclaim it.

But did the Thai people actually suspend their constitution-making power in 2016? Do they now need to reclaim it?

In reality, the 2017 Constitution was drafted under military rule without any significant public input. In the run-up to the 2016 referendum, authorities largely prohibited and suppressed criticism of the draft. Whether the 2017 Constitution was a genuine expression of popular will is, at the very least, questionable. It may be more convincing that the Thai people never gave up their constitution-making power to begin with.

Ironically, the large-lettered referendum leaflet admits that quite frankly. Under the heading “Advantages and disadvantages of voting on a new constitution” (translation from Thai), the leaflet explains that the 2017 Constitution aligned with the coup-makers’ intentions, that the 2016 referendum was neither free nor fair, and that a truly democratic constitution must be made (p. 17 of the leaflet). This is a remarkably candid account of recent Thai constitutional history, and it comes from no one else than the Thai Election Commission.

In sum, three consecutive referenda burden rather than boost popular constitution-making power. Neither principle nor practicality supports requiring a first-stage referendum. It appears instead as a tedious exercise that, once more, reflects Thailand’s anti-popular constitutionalism.

Outlook: who’s afraid of people power?

If the first-stage referendum on 8 February 2026 succeeds, the next challenge looms. How will the newly elected parliament amend the constitution? Some political parties want the amendment to provide for a fully elected constitution-drafting assembly. The Constitutional Court, however, blocked this path in its 2025 ruling. Parliament may not stipulate such direct popular access to the drafting assembly.

The question now is how much constitution-making power the Thai people can actually claim. The answer will reveal whether Thailand’s constitutional future remains hostage to institutional gatekeepers, or whether genuine popular sovereignty can finally take root.