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

by Wasan Soiphisut

Personal Opinion of

Wasan Soiphisut, President of the Constitutional Court^[1]

Decision No. 15/2555

Case No. 30/2553

The 13th Day of June, Buddhist Era 2555 (2012)

Question

Is the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), contrary to or inconsistent with the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30?

Opinion

Having taken the case under my deliberations, I find that the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 29, lays down the principle to prevent the restriction of personal rights and freedoms constitutionally recognised, unless 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 to the rights and freedoms concerned. It is also required that these legal provisions are generally applicable, that is, not being intended to govern any specific event or person. The Constitutional, section 30, prescribes in principle that all, either males or females, are equal before the law and are entitled to equal protection under the law, and that unfair discrimination against persons on grounds of their different origins, race, language, sex, age, disabilities, or physical or health condition is forbidden.

The Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1, which deals with the qualifications of the candidates in the judge trainee appointment examinations, requires those candidates to be qualified and not disqualified by not "…(10) having physical or mental condition inappropriate for judicial service…". (11) also requires them to pass a physical and mental examination conducted by a medical panel.

The Constitution, section 30, recognises the equality before the law in relation to persons with disabilities and physical impairments, though not describing the nature of these disabilities and physical impairments. In order to implement certain legal requirements, regard must be paid to the suitability and accordance of the disabilities and physical impairments with the work to be carried out. For instance, the complete hearing or visual impairment would be repugnant to the proper functioning of a judge who needs to watch and hear testimonies, examine material evidence, as well as inspect crime scenes or land in dispute, whereas mere strabismus, absence of some fingers or genu varum would not debar a judge from installing himself in stateliness and respectability when holding sessions amongst the assembly of the relevant parties and persons. Furthermore, it is much possible for judges in general to be transferred to outer provinces, to attend state and royal ceremonies, and to have audiences with Their Majesties and the royal household members; various disabilities would surely obstruct these functions. If a judge with disabilities is exempted from being transferred to an outer province, the judges without disabilities would then be exposed to unfair discrimination. Due to these causes, the criteria regarding the candidates in the judge trainee appointment examinations under the Court of Justice Judicial Service Act, BE 2543 (2000), are sanctioned by the Constitution, section 29, even somewhat giving rise to the restriction of personal rights and freedoms. The qualifications and disqualifications in question permit the Court of Justice Judicial Service Commission, or CJJSC, to individually consider whether or not the physical condition of each candidate is appropriate for judicial service. The provision of the said law merely lays down broad criteria and is not contrary to the principle of equality, because the CJJSC is required to base its discretion upon requirement under the Constitution, section 30, not to exercise its discretion in the same manner as before promulgation of the current Constitution. Nevertheless, the question as to whether or not the CJJSC exercises its discretion in a constitutional manner is not subject to the competence of the Constitutional Court.

For these reasons, I hereby hold that the Court of Justice Judicial Service Act, BE 2543 (2000), section 26, paragraph 1 (10), is not contrary to or inconsistent with the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 30.

Wasan Soiphisut

President of the Constitutional Court

Footnotes

1. Published in the Government Gazette: volume 129/part 100 A/page 103/18 October 2012.

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