Sections 28 and 29 are very important since they stipulate the reasons for the rights to be restricted. Section 28 speaks about rights and liberties of other persons, the Constitution and good morals as limits for exercising individual rights and freedoms. Section 29 further states that a limitation of the rights requires, first, law; second, a purpose of the law determined by the constitution; third, the restriction of the rights must be necessary; fourth, it should not affect the essential substances of the rights; fifth, it should be of general application and not restricted to any particular person or group of persons; and finally, there must be a reference to the constitutional provision authorising such limitation.

In this context it is clear that the Court facing an allegation of violation of constitutional rights and freedoms has to examine the measures at issue whether they meet the standards set up in Sections 28 and 29. Before doing that there must be a determination whether and what constitutional right or freedom has been violated. It appears the right way of reasoning of the Court after the admissibility requirements have been met. Therefore, it is surprising to see that the Court did not follow this pattern of reasoning. After deciding that the case should be admitted, the Court went to the issue whether the defendants can challenge the process of passing emergency decrees.

Thus, there were two options before the Court. The first, chosen by the Court, was to look whether the complainants (defendants in a civil suit) had the right to challenge the rationale of the governmental decrees affecting their debt. Another way was to look whether any constitutional rights have been really violated by the decree. From the facts of the case it is clear that the issue was returning commercial debt by the defendants. It is true that they did not owe their debts to the plaintiff originally. However, it is a common commercial practice that the rights of the creditor can be transferred to another person. Therefore, it is evident that there was no unlawful infringement of the constitutional right of the defendant by the move of the plaintiff to claim the debt. The debtor carries both legal and moral duty to return the debt. Consequently, Section 28 can be used against the applicants by supporting the claims of the plaintiff against them even apart from the appropriate provisions of Thai Civil and Commercial Code, to the extent that the rights of the plaintiff as a creditor are also protected.

It may appear to an external observer to be an unnecessary move of the Court to inquire into the issue whether the requirements of Section 218 have been met, and the issue who can invoke this section. The defendants appealed to the liberty of dwelling (Section 35), the property rights (Section 48) and the liberties to engage in an enterprise or an occupation and to undertake a fair and free competition (Section 50). These are the issues the Court had to examine. Since it is evident that the contractual obligation to return one’s debt cannot be considered as a violation of all these freedoms and rights, there should not be any further issue standing before the Court. It is true, however, that not every contractual obligation is a freely accepted one. In this case, however, a law of unfair contractual terms should be applied, not a constitution. In other words, there was an easier way to determine that there was no violation of constitutional rights in this particular case.

Part 6

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