Abstract:
The objective of this documentary research is to study two main issues,
namely:
The first issue concerns whether the provisions of the conflict of laws rules, which do not directly determine the rights and obligations of individuals but solely determine the applicable law to situations or disputes involving multiple jurisdictions, can be subject to constitutional review in Thailand. As the law that the court will apply to the case, the study found no obstacles to the constitutional review of the conflict of laws rules contained in the Conflict of Laws Act B.E. 2481. The fact that the provisions are tools for determining the applicable law should not be a reason for such provisions to be precluded from constitutional review. This is because the selection of the connecting factors for each legal category reflects the influence of the civil law concepts as well as the prevailing social values at the time of enactment of the law.
The second issue concerns whether provisions of the conflict of laws rules that designate the husband's nationality as the connecting factor in marital relationships and the father's nationality as the connecting factor in parent-child relationships are considered as the violation of the constitutional principles of equality and non-discrimination on the basis of sex. According to the study, similar provisions have been subjected to constitutional review in some countries, but no such rulings have been issued in Thai law. Considering the principle of equality, there are no significant differences between husbands and wives or fathers and mothers that would justify giving priority to the husband's or father's nationality for locating marital and parent-child relationships. Uniformity of applicable law for family relationships cannot be justified as a reasonable explanation for different treatment, as most conflict of law systems nowadays no longer use the husband's or father's nationality as the connecting factor for family relationships. However, a review of Thai Constitutional Court rulings on gender equality has not found any instances where a provision was found to violate the principle on the basis that the underlying values of the legal provision violated the principle of equality. Rather, the court requires that the law establish different treatment, resulting in a concrete loss of certain rights for one gender, to be considered unconstitutional. This approach may be deemed unsuitable for the constitutional review in the case of conflict of laws rules, as these rules do not directly define the rights and obligations of individuals.
The study recommends that in the constitutional review of conflict of law rules, the underlying values of the law should be taken into account. In addition, Sections 21, 22, and 30 of the Conflict of Laws Act B.E. 2481 should be amended to use gender-neutral connecting factors that can also be applied in the context of same-sex marriage. "