Problems on the Application of the Principle of Proportionality to the Limitation of the “Right to General Liberty” Enshrined in Article 25 of the Thai Constitution B.E. 2560

Abstract

The general right to liberty or the liberty to do or not to do as one pleases is guaranteed for the first time in Article 25 of the Thai Constitution B.E. 2560. The general right to liberty thus becomes a constitutional right, directly granting a subjective right to the right-holder against the state that it should not interfere with the individual’s freedom of action, state of affairs and legal positions. Such a wide scope as that of the general right to liberty, however, entails a wide conception of limiting clause because there are other principles and values protected in the constitution. In case where the conflict arises between the general right to liberty and other principles or values, relevant state organs have to apply the principle of proportionality when limiting the general right to liberty so that diverse principles and values recognised by the constitution can be factually and legally realised as much as possible, in accordance with the doctrine of harmonious construction used in constitutional interpretation. Nevertheless, the general right to liberty, embracing all indeterminate actions of all constitutional right-holders, has been criticised as having no content. The question thus remains as to how the principle of proportionality applies when limiting the right to general liberty. Therefore, this paper analyses problems arising in each of the three stages of the control of constitutionality when limiting the general right to liberty as well as the approaches used in France and Germany which gives importance to the use of the law of balancing. Moreover, the possibilities and challenges in implementing the German approach in the context of Thai constitutional law are also explained, such as the ‘Formal-Material Conception of the General Right to Liberty’ which incorporates the concept of human dignity to the material dimension of the general right to liberty to address the vagueness of the scope of such right.