Rights under the 1997, 2006 and 2007 Thai Constitutions: Influences on, and Uses by, the Advantaged

Abstract

This thesis draws on analysis of Thai-language constitution drafting records and court decisions to explore the Thai experience with rights recognition and litigation under the 1997, 2006 and 2007 Thai constitutions. In doing so, it focuses especially on the rights to equality, non-discrimination, human dignity and life and body; and the influence on the recognition of those rights and uses of those rights made by those who were advantaged. The motivation for this exploration came from a sense that existing portrayals of the Thai experience with constitutional rights recognition and litigation in that period were limited in their scope and often inaccurate, and that the lack of breadth and the inaccuracies in the portrayals could reflect broader distortions in the study of law in contexts like that in Thailand that have been observed by others and could have undesirable real-world consequences.

Within the Thai context this thesis is significant primarily for four reasons. The first is because it shows the presence of dynamics behind the constitutional recognition of rights that suggest a much greater significance for that recognition than do most existing analyses. The second is because it shows an extent of engagement with the rights that is much greater than is reflected in the existing literature, and so contributes to challenging ideas of a particular Thai aversion to engaging rights. The third is because it shows a variety of engagement with the rights and constitutions, and impacts of that engagement, that are more diverse than those reflected in the existing literature. And the fourth is because it shows the limiting of the potential of and for rights litigation in Thailand in that period to have not been inevitable or necessarily a product of court failure, but likely a product of the choices made by constitution drafters and the pressures and incentives created by how the rights were used.

Beyond the Thai context, the thesis is significant primarily for five reasons. The first is for the response it provides to distortions in the study of law in contexts like that in Thailand. The second is for the ways it draws on analysis of constitution drafting records to explore influences of the advantaged on the recognition of rights. The third is for the attention it brings to factors that contribute to, and to the effects of, court non-interventions. The fourth is for the exposure it brings to types and effects of uses of rights by the advantaged that are not emphasised in the existing literature on uses of rights by that group. And, the fifth, especially relevant for the study of less active courts and dejudicialisation, is for the attention it brings to reasons why and ways that courts might choose to limit their own roles. Show more