Page 20 - รายงานวิจัยฉบับสมบูรณ์ เรื่อง กฎหมายว่าด้วยความเสมอภาคและการไม่เลือกปฏิบัติ

กฎหมายว่าด้วยความเสมอภาคและการไม่เลือกปฏิบัติ

Regarding Equality Principle, the research found, by comparing foreign laws, that the con-
stitutional structure relating to the protection of equality ere are 3 models; the first one classified

equality as “general equality”, “specific equality” and “non-discrimination”. The second model
divided only two principles, i.e. “equality” and “non-discrimination”. The third one only identified
“non-discrimination”.

According to Thai Constitution and related Act, “Unfair Discrimination” was stipulated
leading to the question whether such term is consistent to international humanitarian laws. The

results indicated that foreign laws shared similar principle in classifying between “distinction of
treatment that is prohibited” and the “distinction of treatment that is not prohibited”, however, the
pattern of using this term can be categorized in 4 models, (1) categorizing “Unfair Discrimination”

and “Fair Discrimination”, (2) categorizing “Unlawful Discrimination” and “Lawful Discrimination”,
(3) categorizing “Discriminatory Practice” and “Non-Discriminatory Practice”, (4) categorizing “Dif-

ferential Treatment” or “Distinction of Treatment” and “Discrimination” without using the “Fair or
Unfair” element. In this regards, Thailand can be classified in the first model. However, constitution
provided no clear definition of “Unfair” Discrimination. Thus, Court interpretation played vital roles

in providing scope and meaning of such term. In addition, this research found, by comparing to
international laws, that there is no element of “Fair or Unfair” because the differential treatment

that was not fall under the scope of “Discrimination” was termed merely “Differential Treatment
or Distinction of Treatment”.

As for the scope of discrimination in human right laws context, this research found that the
“Discrimination” was used in several perspective in Thai legal system. The research then classified,
by using human right laws framework, the use of such term in 3 cases; (1) differentiation of

treatment falling within the scope of “Discrimination” and the one which is not “Discrimination”
(2) the overlapping between the practices that falls in to the scope of “Discrimination” and the
practices that violate other human rights such as personal right, freedom of religion, freedom of

education and right in criminal justice system (3) “Unfair Discrimination” in the context of adminis-
trative laws which has different scope because it was based on different concept. According to such

classification, the research would focus on the “Discrimination” falling within the scope of human
right laws and explore whether such discriminatory practices could be sufficiently covered under
existing laws of Thailand. However, the results showed that the existing laws were insufficient by

classifying this part of results into ๓ findings;

Firstly, the analysis of “ground of discrimination” classified the issue in 4 cases; (1) Grounds
of discrimination covered in Thai laws which were broader than international human right laws (2)

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