HUMAN DIGNITY: PROBLEMS IN THE CONTEXT OF THAI SOCIETY AND CONSTITUTIONAL LAW

In article it is analyzed the problems of human dignity protection in Thailand. Violations of human dignity in Thai society and the problems of Thai Constitutional law.

Keywords: Human dignity, Human rights, Thailand, Constitutional law.

1. Human dignity according to the context of Thai society

The issue of human rights is not limited only to Thailand but is also a major problem in the

world, which becoming more seriously in present day; whether problems of human dignity, problems of racial discrimination, problems of liberty in public assembly or the rights of women and children, and so on.

The Government institutions and Government officials are lack knowledge regarding human dignity. Therefore, there are always mistakes in interpretation the terms of ―human rights, human dignity or human being‖ [6] just only in legal terms, as a result for human rights violations are ongoing and increasingly in Thailand. They have to realize that human rights are inherent natural rights; as a fundamental right of every human being without regard to race, nationality, religion, health or disability. It does not depend on the extent of the law, but it reaches beyond the law. [4]

The problems of the protection of human dignity in Thailand are as follows;

1.1 The ineffectiveness of law enforcement. Although, Thailand has certain obligations in accordance with The Universal Declaration of Human Rights, a declaration adopted by the United Nations, the law is ineffective in enforcing and sanctioning the person or organization which break the law. It might be that access to the rights of the people is very difficult or there is a lack of expert personnel to take responsibility for protecting the rights and freedoms of the citizens.

For example, In April 2004 the military stormed the Kru Se mosque where armed Muslims separatists were holed up, and 107 of them were killed. These events were interspersed with several assassinations of Thai officials in the four southern Muslim provinces. In October 2004, an incident known as the Tak Bai riot, 78 Muslim protesters were suffocated to death when they were arrested and herded into army trucks. Altogether 85 persons, including mere bystanders, are reported to have died. The unrest that had existed prior to these events has continued, and further incidents have been reported with great frequency, despite a sincere apology to the Muslim population by the new Prime Minister Surayud Chulanont in November 2006.

However, although much effort has been devoted to bringing the perpetrators to justice, including an investigation by a sub-panel of the National Human Rights Commission, nobody had been charged with human rights abuses, despite some very disturbing findings by the panel. Efforts to punish separatist terrorists resulted in the acquittal in May 2005 of four men charged with plotting terrorist offences. The government appointed a National Peace and Reconciliation Commission (NPRC) under the chairmanship of the former Prime Minister and architect of constitutional reforms, Anand Panyarachun.

Following the military coup on September 2006, the coup leader General Sonthi Boonyaratglin cited the actions of the former government of Thaksin Shinawatra as a major reason for the coup, and the new government installed by the junta has pursued a much more accommodating policy. This would appear to signal a change in government policy that would emphasize human rights and good governance. However, it was not within the remit of the NPRC to investigate human rights

violations as such; and great damage and mistrust have been engendered which will take many years to disappear, even with a more enlightened policy.

The facts and allegations stated above are not only the subject of investigations; they are also the subject of international concerns. However, the fact that they have been or are being investigated is a new situation for many years, and despite many advances in governance and democracy, notably the implementation of the anti corruption, rule-of-law Constitution in 1997, the conduct of the police and the armed forces has been beyond the reach of the law, and beyond the scope of any form of accountability. The findings of the sub-panel show that the soldiers dealing with the Tak Bai riot regarded themselves as following not only orders but normal procedures in dealing with protesters, that is to treat them as prisoners. The fact that they had such orders and saw no reason to exercise some judgment in the matter is already a cause for some disquiet. [1]

1.2 Double Standards in Thai society. Double standards make a huge difference in the Thai society, For example, in criminal cases the police take the suspects returned to scene of the crime. Immediately, the witness who watching around the scene come to hit or assaulted the suspects. Whereas most of the people think that they have rights to do like that because the suspects should deserve to be punished by them and the criminal justice system is quite delay for them. [2]

An example of the way in which the law is developing can be adduced here. Following a decision by the Local Administration Department (LAD) to remove citizenship from 1,243 villagers in the Mae Ai district in Northern Thailand, who were considered by the LAD to be Burmese, the individuals concerned were not eligible to receive services from state agencies, including the

30-baht universal health care scheme, and they were not entitled to apply for loans from state financial institutions. Also, deprived of their citizenship, some students were forced to leave school.

The Chiang Mai Administrative Court in April 2002 found that the LAD had acted unlawfully when it removed the names of these villagers. After the LAD appealed, the Supreme Administrative Court in September 2005 confirmed the original decision of the Chiang Mai Administrative Court which resulted in the villagers enjoying automatic reinstatement of their Thai nationality and brought to a close a three-year legal ordeal for the villagers. There is still an issue of how those villagers not parties to the case will be dealt with.

2. Human dignity according to the Constitution of the Kingdom of Thailand

The problems of Human dignity according to the Constitution of the Kingdom of Thailand can

be considered as follows;

2.1 The problems of human dignity’s definition because the Constitution does not explain what human dignity is. Article 4 of the Constitution stipulates that ―Human dignity, rights, liberty, and equality of the people shall be protected‖ and according to Article 26 ―In exercising the power of each and every State authority, regard shall be given to human dignity, rights, and liberties in accordance with the provisions of this Constitution‖ and under the provision Article 28 ―A person can invoke human dignity or exercise his or her rights and liberties in so far as it is not in violation of rights and liberties of other persons or contrary to this Constitution or good morals.‖

If we do not know what human dignity is, how will we know what texts are concerned with it? For example, Article 26 and 28 of the Constitution are in Chapter 3 ―Rights and Liberties of the Thai People.‖ It means that foreigners are not included or claimed the rights and liberties in this chapter. [5]

However, the central meaning of dignity remains the common minimum core and judicial interpretation has done little, No one jurisdiction has a coherent judicially interpreted conception of dignity across the range of rights. But that does not mean that dignity has no role to play in the judicial interpretation of human rights. The absence of a consensus on the substantive meaning of the concept beyond that minimum core has not, it seems, prevented it from being used to enable a much looser coordination of human rights adjudication to take place, with significant room for disagreement and divergence over specific practical applications. Rather than providing substantive meaning, a significant use is institutional: providing a language in which judges can appear to justify how they deal with issues such as the weight of rights, the domestication and contextualization of rights, and the generation of new or more extensive rights. It is a limited role,

and possibly a different one from that played in philosophical, religious, and political debate, but to me it seems to go some way towards explaining it current, and predict future, judicial popularity in human rights adjudication. [3]

2.2 The problems of the Constitutional court procedure. It is really difficult for people who suffered the problem of human rights to file complaints directly in the Constitutional Court because of the narrow scope and the complicated Court procedure.

For example, the Constitution stipulates that the Constitutional Court shall have the powers and duties relating to the protection of the rights and liberties of the people. A) Controlling provisions of any law shall comply with the Constitution and B) Protect of rights and liberty for the citizen according to Constitution.

With regard to the controlling and inspection of the state power by the Constitutional Court, Article 6 stipulates that ―The Constitution is the supreme law of State. The provisions of any law, rule or regulation, which are contrary to or inconsistent with this Constitution, shall be unenforceable‖ and according to Article 216 paragraph 5 ―The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, Council of Ministers, Courts and other State organs.‖ A person whose rights and liberties recognized by this Constitution are violated, has

the right to submit a motion to the Constitutional Court for its a decision as to whether the provisions of the law are contrary to or inconsistent with the Constitution. But the exercise of the right in the above case must be possible where the person is unable to exercise the right by other means as provided in the organic law on rules and procedure of the Constitutional Court.

According to aforementioned we can observe that the injured person may not have rights to file complaints in court directly. So, if they want to file a petition to the Constitutional Court it must be done through the following organizations.

Firstly, to complaint in The National Human Rights Commission according to Article 257(2) under the condition that ―the provisions of any law are detrimental to human rights and beg the question of the constitutionality as provided by the organic law on rules and procedure of the Constitutional Court‖ or

Secondly, to complaint in the Ombudsmen according to Article 244. However, if the Ombudsmen dismisses the case. Then, the injured person has the right to file a petition to the Constitutional Court.

Материал взят из: Казанская наука. №4 2012