การจำกัดสิทธิขั้นพื้นฐานที่รัฐธรรมนูญรับรองโดยปราศจากเงื่อนไข” ปัญหาการใช้การตีความสิทธิขั้นพื้นฐานในระบบกฎหมายไทย

Abstract

This article aims to study the problem of usage and interpretation of unconditional constitutional fundamental right in the enactment of laws restricting rights in the Thai legal system; whether the states can directly restrict such fundamental right or not; and if legislation to limit such fundamental right is to be enacted, how much the legislature will have the scope of its discretion to enact laws to limit such fundamental right by studying the concept of basic rights and conditions for enacting laws restricting fundamental right under the permanent constitution of Thailand from the past to the present, including the constitutions of foreign countries, studying court judgment guideline and relevant various academic opinions. The study showed that the unconditional constitutional fundamental right to enact laws that restrict rights is a form of direct restriction of fundamental right from the provisions of the Constitution. The fundamental right in this category is not fundamental right that is strictly recognized by the Constitution and cannot be restricted in any way. However, if a person or a state can claim the scope of the exercise of such fundamental right to limit the fundamental right in that matter directly, it may result in such restrictions on fundamental right being carried out more easily than other types of restrictions on fundamental right that the Constitution stipulates conditions for and gives powers to the legislative to enact laws to limit fundamental right. It is therefore suggested that legislation at the statutory level should be enacted before the state can exercise the limitation of unconditional constitutional fundamental right in enacting laws restricting rights, and the provisions of the Constitution of the Kingdom of Thailand, B.E. 2560 ( 2017 ), should be amended for clarification on the use and interpretation of the methods for the limitation of unconditional constitutional fundamental right in enacting laws restricting rights and the scope of application of the conditions for enacting laws restricting such fundamental rights.