Map Ta Phut and rights under the constitution
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Map Ta Phut and rights under the constitution

As a follow up to this morning’s earlier post, the problem that BP has with aspirational rights in the Constitution is that they pretend to be actual rights which can be enforced, but never are. Nevertheless, one day suddenly they may be enforced, but no government can implement them now.The problem is, what happens if everyone started trying to enforce their rights? For example, from the 2007 Constitution:

Section 49. A person shall enjoy an equal right to receive education for the duration of not less than twelve years which shall be provided by State thoroughly, up to the quality, and without charge.
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BP: Does anyone believe that all students in Thailand have an equal right to a quality education? So does this mean a parent in some rural community in Isan can sue the government saying that the quality of education their children receive is not of sufficient “quality” and they do not have the same “equal right” to education as do students in Bangkok? If the court was to strictly apply this, would they then demand the government provide more funding? How much more? And where would this money come from? If the court does not strictly apply this then the right is just some meaningless drivel which exists on paper. Now, the goal of each student to have the equal right to receive a quality education without charge is a worthy goal, but one can not achieve quality education overnight. However, the Constitution requires that this exists now!
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/> The same goes for:

Section 51. A person shall enjoy an equal right to receive standard public health service, and the indigent shall have the right to receive free medical treatment from State’s infirmary.
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/> The public health service by the State shall be provided
thoroughly and efficiently.
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/> Section 53. A person who is over sixty years of age and has insufficient income for living shall
have the right to welfare, public facilities and appropriate aids from State.
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/> Section 54. The disabled or handicapped shall have the right to get access to, and to utilise of, welfare, public facilities and appropriate aids from State.
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 A person of unsound mind shall have the right to appropriate aids from State.
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/> Section 55. A person who is homeless and has insufficient income for living
shall have the right to appropriate aids from State.
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BP: The Abhisit government has granted pensioners a 500 Baht a month welfare payment, but am not aware of payments for the homeless and those of unsound mind. Also, what constitutes an “insufficient income”? Below, the absolute poverty line? 500 Baht a month is less than the absolute poverty line. Again, not to say that these are not worthy goals to achieve, but they don’t exist now except on paper in the constitution.  It is like most laws in Thailand. They are not enforced well except against those who are unpopular with the establishment.

Chang Noi has a take on the situation from a different angle. Key excerprts:

A right is a right. The spirit or intention of the constitution is more important than the mechanics of judicial implementation. This is a landmark because of what has happened in the past.
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/>After Thailand turned decisively towards industrialisation, its unusually pristine and fecund natural environment was trashed in a single generation. The major culprits were power projects, rock quarries, and large-scale industrial zones. In the 1990s, activists achieved three major reforms which they hoped would stem this destructive trend. The 1992 Environment Protection Act enshrined the principle that polluters should be made to pay in order to deter others. A 1996 Prime Minister’s Office regulation introduced environmental impact assessments. Clause 46 of the 1997 constitution gave local communities the right to protect the natural environment on which they depend.
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/>These three reforms were copied from best practice in the outside world, and heralded with great optimism. Local activists spray-painted “Article 46” at sites protesting against dams and industrial developments like a mantra to make the local environment invulnerable to outside threats.
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Sadly these three reforms were a massive failure. One key reason was the abject failure of the judiciary to cooperate with their spirit.
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/>Although the 1992 Environment Protection Act enshrined the “polluter pays” principle, not a single polluter has been penalised heavily enough to act as a deterrent.
Courts were reluctant to accept cases. The process took too long. Fines and compensation payments were too small to be effective. In the famous case of Klity Creek, where the poisonous pollution from a lead mine trashed a whole sub-watershed, the case took nearly a decade, the compensation was a footling Bt4 million, and the ruling requiring a clean-up was simply ignored.
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The rights in the 1997 constitution proved almost worthless. Every clause on rights in this charter ended with the phrase “as provided by law.” This gave the judiciary an escape route. Judges argued that constitutional rights could become the basis for a judicial ruling only if they were substantiated by enabling legislation. They refused to accept suits which could function like a precedent-setting suit under a common-law system, or a class-action suit in the US. No community has been able to protect its own local environment under Clause 46.
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/>Advancing the rule of law is about making law effective for ordinary people. Cases about politicians are froth. Elites will always treat law as something which should work in their own favour. When the judicial system can substantiate rights which protect ordinary people, then the rule of law advances.

BP: Disagree on the “as provided by law” part to the extent that at least it is clear it is a meaningless right. This was then taken out and the government has been left scrambling to implement all the rights. Now, this doesn’t exist with just rights, but throughout the constitution all different types of enabling legislation have been required on referendums, elections, political parties act etc. The drafters could have set up a mechanism that unless enabling legislation was provided for within a certain time frame then the right could be enforced. Then it would have been clear what rights existed and the government had a timeframe. Laws and rights should not just exist on paper. If they are not being enforced they should be amended to reflect the actual situation and not the desired situation.