Translation:Constitutional Court Decision No. 15/2555/Decision

by the Constitutional Court of Thailand

Garuda emblem

In His Majesty's Name

The Constitutional Court

Re: An Ombudsman's petition for a Constitutional Court decision under the Constitution, section 245 (1), as to whether the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is attacked by a question of constitutionality pursuant to the Constitution, section 30

An Ombudsman ("Petitioner") submitted a petition to the Constitutional Court, requesting for its decision under the Constitution, section 245 (1). The facts are as follows, in summary:

Mr Sirimit Bunmun lodged with the Petitioner the complaint of 18 February 2010, containing the following statement. On 14 May 2009, he applied for candidacy in the Knowledge Examination for Judicial Officer Recruitment and Judge Trainee Appointment for the Year 2009, Class 58. After examining his physical condition, the Court of Justice Judicial Service Commission ("CJJSC") announced the list of candidates, in which his name was nowhere to be seen. He then applied for an explanation on his disqualification. The Office of the Courts of Justice later informed him in writing that the CJJSC has considered his qualifications for the Judicial Officer Recruitment Examination and resolved not to accept him, since his physical and mental condition is not appropriate for judicial service according to the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10).

Mr Sirimit Bunmun deemed that his disqualification on the basis of his physical and mental condition being inappropriate for judicial service, pursuant to the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), constitutes unfair discrimination on grounds of different physical condition or disability and exposes him to injury. The provision of the said law is thus contrary to or inconsistent with the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30. Although the Constitutional Court has, by its Decision No. 16/2545, ruled that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), was not contrary to or inconsistent with the Constitution, section 30, the Constitution referred to was the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997), whilst the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30, paragraph 3, has now included discrimination against persons with disabilities. Having considered that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is contrary to or inconsistent with the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30, Mr Sirimit Bunmun requested the Petitioner to exercise the authority under the Constitution, section 245 (1), to refer the matter and opinion to the Constitutional Court for further decision.

The Petitioner found that the Constitutional Court Decision No. 16/2545 stood on the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997), which was now replaced by the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007). Section 30 of the latter Constitution bears the same principle as section 30 of the former Constitution, but its paragraph 3 includes the term "disabilities" which was nowhere in the former Constitution. Due to this cause, the said Constitutional Court Decision does not bind the Petitioner pursuant to the Constitution, section 216, paragraph 1, and the Petitioner is competent to deal with the complaint. In this respect, the Petitioner was of an opinion that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), which reads "…having physical or mental condition inappropriate for judicial service…", permits the unlimited exercise of discretion on account of appropriateness. The exercise of discretion under the provision in question may become unfair to any candidate when he is considered to be different from others due to his disability, despite the prohibition under the Constitution, section 30. Accordingly, the Petitioner hereby petitioned the Constitutional Court for its decision as to whether the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is sanctioned by the Constitution, section 30.

The preliminary question the Constitutional Court must handle was whether or not it is competent to address the petition, in accordance with the Constitution, section 245 (1).

Having carefully considered, the Constitutional Court entertained the following opinion. The Constitution, section 215, allows the Constitutional Court to refuse to deal with any matter or issue being presented to it but having been decided by it. As the Petitioner petitioned the Constitutional Court for a decision as to whether the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is attacked by a question of constitutionality pursuant to the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30, the Constitutional Court has rendered the Decision No. 16/2545 on 30 April 2002, adjudging that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), was sanctioned by the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997), section 30. Even the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), retains the same principles of equality and unfair discrimination as those under the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997) ; paragraph 3 of section 30 of the former Constitution, however, includes the term "disabilities", with a view to preventing unfair discrimination on grounds of disability. The question raised before the Constitutional Court by the Petitioner as to whether the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is sanctioned by the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), when it constitutes unfair discrimination against persons on grounds of their disabilities pursuant to section 30, paragraph 3, has never been decided by the Constitutional Court, according to the Constitution, section 215. The criteria under the Constitution, section 2451 (1), incorporating the Constitutional Court Ordinance on Procedure and Rendition of Decisions, BE 2550 (2007), article 17 (18), are thus met. The Constitutional Court therefore accepted to address the petition.

The question the Constitutional Court must now decide is whether or not the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is contrary to or inconsistent with the Constitution, section 30.

Having taken the case under its deliberations, the Constitutional Court is of the following opinion. Section 30 of the Constitution is in Chapter 3 of Rights and Liberties of the Thai People, Part 2 of Equality. Paragraph 1 of the said section 30 prescribes that "All shall be equal before the law and be entitled to equal protection of the law." Paragraph 2 of the same provides that "Males and females shall enjoy equal rights." Paragraph 3 reads: "Forbidden shall be unfair discrimination against persons on grounds of their different origins, race, languages, sex, age, disabilities, physical or health condition, personal status, economic or social standing, religious belief, education or political opinion which is not contrary to the provisions of the Constitution." And paragraph 4 states that "The measures taken by the State, for the purpose of eliminating the obstacles to a person's exercise of rights and freedoms or enabling a person to exercise his rights and freedoms on an equal basis as others, shall not constitute unfair discrimination under paragraph 3." The Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30, paragraph 3, includes the new key principle to protect persons with disabilities from unfair discrimination against them on grounds of their "disabilities", because they are not considered to be either in the state of anomaly or in need of care, whilst disabilities could not be identified as "physical or health condition". A disability is internationally recognised as a result of the relations between a person and the environment which does not allow him to live as a normal person. Regard should then be paid to the modification or development of such unfavourable environment, so that persons with disabilities would be able to equally access fundamental utilities and to peacefully live their lives in the same manner as other ordinary persons. For the same reason, the Constitution recognises various rights and freedoms of persons with disabilities, for instance, the right of persons with disabilities or infirmities to access good quality education universally provided by the State without charge for twelve years, which is acknowledged by section 49 with a view to entitling them to receive education on an equal basis as other persons, and the right of persons with disabilities or infirmities to access and enjoy public welfare and facilities as well as other appropriate assistances provided by the State, which is acknowledged by section 54. In addition, if a bill governing persons with disabilities or infirmities is not considered by the Committee of the Whole House of Representatives, the bill is required by section 152 to be considered by an extraordinary committee set up by the House and consisting of the representatives of the nongovernmental organs for persons with disabilities or infirmities.

After the Constitutional Court rendered the Decision No. 16/2545, ruling that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), was not attacked by a question of constitutionality under the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997), section 30, Thailand has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on 29 July 2008 and is bound to implement the obligations under the said Convention as from 28 August 2008. The Convention mentions the nature of "disabilities" and the scope of "discrimination on grounds of disability". According to its article 1, "persons with disabilities" include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. The Convention also defines "discrimination on grounds of disability" as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field, including all forms of discrimination and denial of reasonable accommodation. And the term "reasonable accommodation" is defined as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. In this respect, a State Party is obliged by article 4 of the Convention to adopt and undertake all appropriate legislative measures to modify or abolish the existing laws, regulations, customs and practices which give rise to discrimination against persons with disabilities. Article 5 of the Convention, which concerns the equality and nondiscrimination, requires a State Party to refrain from all discrimination on grounds of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. For the sake of promoting equality and eliminating discrimination, the Convention also directs a State Party to take all appropriate steps to ensure that reasonable accommodation is provided. When Thailand has now become a State Party to the United Nations Convention on the Rights of Persons with Disabilities, the state agencies are charged by its article 27 (a) with the duty to refrain from discrimination on grounds of disability in relation to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions. The state agencies are also required by (g) to employ persons with disabilities in the public sector. Therefore, the state agencies must be mindful of the described obligations when determining the criteria for recruitment of holders of whatever offices.

The Constitution, section 30, in principle recognises every person's equality before the law, guarantees to all the equal protection of the laws and forbids unfair discrimination against persons on grounds of their disabilities. The Constitution, section 29, also peremptorily prohibits the restriction of personal rights and freedoms constitutionally recognised, save where the restriction is permitted by the legal provisions, is made only for the purposes constitutionally allowed and to the extent necessary, and is not prejudicial to the subject of the rights and freedoms concerned. Having reviewed the Act Promoting and Developing Life Qualities of Persons with Disabilities, BE 2550 (2007), the Constitutional Court finds that the Act desires to protect persons with disabilities from unfair discrimination on grounds of physical or health condition, to entitle them to public facilities and other assistances provided by the State, as well as to require the State to promote the good quality of their lives and enable them to live on their own. The Act, applicable to both the public and private sectors, defines a "person with disabilities" in its section 4 as a person who sustains the imperfection of vision, hearing, movement, communication, mind, emotions, behaviour, intelligence, learning or any other impairment which, in conjunction with various barriers, limits his daily activities or social participation, and who is considerably in need of any specific assistance to enable him to carry out his daily activities or participate in society on an equal basis with others, subject to the types and criteria determined by the Minister of Social Development and Human Security. This definition of "person with disabilities" is in line with the United Nations Convention on the Rights of Persons with Disabilities.

The Court of Justice Judicial Service Act, BE 2543 (2000), governs personnel administration, from the selective examination, recruitment, appointment, promotion and punishment of judges to their vacation of offices. Section 26, paragraph 1, which deals with the selection of judges, prescribes that "A candidate in a selective examination, knowledge examination or special selection for judicial officer recruitment and judge trainee appointment must be qualified and not be disqualified as follows… (10) Not being incompetent, quasi-incompetent, insane or of mental infirmity, or having physical or mental condition inappropriate for judicial service, or experiencing any of the diseases specified in the Rules of the CJJSC." Section 15, which concerns the appointment of judges, provides that "A person to be appointed as a judge of any court must have been a judge trainee and passed the training of the Office of the Courts of Justice for a period of time fixed by the President of the Supreme Court of Justice, with the approval of the CJJSC, but not less than one year; prescribed that the outcome of the training must be in conformity with the standards of the Court of Justice Administrative Commission and indicates that the person is of integrity, knowledge, ability, responsibilty and behaviour appropriate for judicial service…" And section 32, which relates to the removal of judges, determines the grounds for removal of judicial officers, such as, the removal under (6) on account of the training outcome not being in agreement with the standards of the Court of Justice Administrative Commission, or on account of failure of duty, lack of ability to discharge official functions, conducting oneself in such a manner unsuitable to remain in judicial office any further, or undergoing an illness to the extent incapable of regularly functioning, or on account of being disqualified pursuant to section 26, paragraph 1 (10).

Since the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), requires a candidate in a selective examination, knowledge examination or special selection for judicial officer recruitment and judge trainee appointment to be qualified and not to be disqualified by not "…having physical or mental condition inappropriate for judicial service…", the Constitutional Court deems that the phrases "physical or mental condition [which is] inappropriate" cover the term "disabilitites" as defined by the Act Promoting and Developing Life Qualities of Persons with Disabilities, BE 2550 (2007), in accordance with the United Nations Convention on the Rights of Persons with Disabilities. However, the provision in question does not clearly limit the scope of the physical or mental condition which is not appropriate for judicial service and leads to the exercise of discretion which may eventually give rise to unfair discrimination. The law which restricts personal rights and freedoms must definitely be framed. For example, the nature of the physical or mental condition inappropriate for judicial service must be described, so that the public would be informed of which right and freedom is to be restricted by the law in question. Incidentally, such law must also be subject to the principle of proportionality and be based upon the interest of the public or society as a whole, rather than the benefit of any specific organisation. As the Court of Justice Judicial Service Act, BE 2543 (2000), was enacted before the promulgation of the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), some of its provisions are repugnant to the prevailing circumstances when the Constitution is aimed at enabling persons with disabilities to enjoy equal rights and enjoy equality in the same manner as others, whether in respect of education, work or occupation. The provision of section 26, paragraph 1 (10), of the said Act allows the immoderately extensive exercise of discretion which may result in unfair discrimination against persons with disabilities. When the qualifications and disqualifications, which are likely to constitute unfair discrimination against persons with disabilities, are to be decided in the course of subscribing judicial officer selective examination candidates, and the determination of the appropriateness of each candidate is left in the hands of the CJJSC, persons with disabilities could be deemed to have been deprived of their rights from the outset, because they will not be allowed to either sit it any examination on an equal basis with others or reveal their true knowledge and ability regarding the work desired. In addition, because the principal missions of the judges of the courts of justice are to try and adjudicate lawsuits fairly, in compliance with the Constitution and laws, and in full panel, no disability would debar a judicial officer from undertaking those missions to the extent the carriage of justice to the parties or relevant persons is affected. When the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), requires a candidate in a judicial officer recruitment examination to be qualified and not to be disqualified by not "…having physical or mental condition inappropriate for judicial service…", this requirement is therefore hostile to the right of persons with disabilities to engage in occupations on an equal basis with others, as recognised by the United Nations Convention on the Rights of Persons with Disabilities, and also begets unfair discrimination against persons on grounds of disability, as proscribed by the Constitution, section 30, paragraph 3.

For these reasons, the Constitutional Court hereby holds that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), only in the part stating "…having physical or mental condition inappropriate for judicial service…", is contrary to or inconsistent with the Constitution, section 30, paragraph 3.

Wasan Soiphisut

President of the Constitutional Court

Charan Phakdithanakun

Constitutional Judge

Charun Inthachan

Constitutional Judge

Chaloemphon Ekuru

Constitutional Judge

Chat Chonlawon

Constitutional Judge

Nurak Mapranit

Constitutional Judge

Bunsong Kunlabuppha

Constitutional Judge

Suphot Khaimuk

Constitutional Judge

Udomsak Nitimontri

Constitutional Judge

Footnotes

1. Published in the Government Gazette: volume 129/part 100 A/page 94/18 October 2012.

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