1
By Ajarn Suprawee Asanasak
Lecturer at Faculty of Law Thammasat University
Since the 8th of March this year was International Women’s Day, we met with
Ajarn Suprawee Asanasak, Full-time Lecturer at the Faculty of Law, Thammasat University,
to explore, for readers, the topic of “women’s rights,” which are implicit in various legal provisions, as well as the issue of the protection of the rights and
freedoms of women in Thai constitutional law. This is the principal guarantee and an important mechanism for endorsing these freedoms and for
protecting women against unequal treatment. The purpose of our discussion is to make readers more aware of the value and role of women in Thai society.
Many readers will be familiar with the term “women’s rights,” especially over the past few years where we have seen calls for women’s rights
by various groups in online media, and claims for the right for women to terminate pregnancies in the Thai Constitutional Court. However, in spite of this,
the term “women’s rights” does not appear in the Thai Constitution, constitutions of other countries, or any international law. This is the case even for
important international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which aims to enhance
the quality of life of women by eliminating discrimination against women, which contains no definition of women’s rights. For this reason,
the question may arise of whether the law contains any mechanisms to protect women’s rights.
Although the “women’s rights” is not a term that is defined in any legal provisions, this does not mean that the law contains no mechanisms
by which such rights are protected. Women’s rights receive the same protection as other rights and freedoms of the people under the Constitution through
the mechanisms of the rule of law and equality. Both of these mechanisms are fundamental, universal mechanisms present in the constitutions of almost every country
and in international law, although the names given to them may differ.
The rule of law
is a mechanism reflected in Article 26 of the current Thai Constitution, which is the principle that checks the use of the state’s power
that impacts the rights and freedoms of persons beyond what is reasonable, or in a way that contravenes the rule of law, or in a way that affects human dignity.
Therefore, whenever the exercise of state power impacts the rights and freedoms of women in society beyond what is reasonable, women,
who are persons under the protection of the Constitution, can claim for a check on that use of power through the mechanism of the rule of law,
under Article 26. For example, a law which imposes punishment on women for having abortions may be the use of state power in a way that
impacts the rights of bodily integrity of women beyond what is reasonable.
The mechanism of equality
is reflected in Article 27 of the current Thai Constitution. This mechanism prohibits the use of power or law by the state leading to
discrimination between groups of people in society. That is, the state may not use the characteristics of a person as belonging to a group as an excuse to
discriminate against them. “Gender” is one of the characteristics which the Constitution prohibits the state from using. For example,
if a law provides that only people of the male gender commit the act of raping someone of the female gender,
this is a situation in which the law uses gender as the basis for discrimination against people of the male gender, and only punishes males.
From the above, the two mechanisms are clearly different. The rule of law is used to check the use of the power of the state or
the content of the law which directly impacts the freedoms of the people. However, the mechanism of equality is used in a situation where the content of the law
or the use of state power does not impact the freedoms of the people, but the result of the law is that one group of people receives treatment
that is not equal to other groups. Some laws may contravene the Constitution under both mechanisms, while other laws may contravene the Constitution under
one mechanism or the other.
Another difference between the two mechanisms is the status of the person bringing the claim. In bringing a claim under
the rule of law mechanism, a woman claims for her women’s rights in the position of a person whose rights and freedoms have been restricted
by the use of state power. By contrast, in bringing a claim under the equality mechanism, a woman claims for her rights in the position of the representative
of a group which is impacted by the result of a law: other groups of people in society have the right to claim for a check on the discriminatory use of power
via the same mechanism.
From all of the above, it can be seen that a claim for women’s rights under the law does not give women any privilege over any other person
or group. Rather, the claim is brought under general mechanisms in the Constitution, which does not state that any particular person or group
is able to use those mechanisms for the protection of their own rights or freedoms. Thus, a claim for women’s rights is not a claim that
the law must provide specific content on women’s rights. Rather, it is a claim for human rights and for the rights of the people.
1Note: Some content is adapted from the article SDG Insights | Legal Mechanisms for Marriage Equality: Lessons from Foreign Constitutional Opinions by Suprawee Asanasak https://www.sdgmove.com/2022/01/08/sdg-insights-constitutional-court-ruling-legal-mechanisms-to-recognize-marriage-equality/