27 May 2022
Migrant workers and stateless persons filing case with Central Administrative Court on the cash handouts scheme “Section 33, We Love Each Other” proposed by Ministry of Labour alleging its incompatibility with the Constitution and international treaties
Today (27 May), representatives of migrant workers and stateless persons who are insured persons under the Social Security Act’s Section 33 and have been affected by the execution of administrative power, have filed the case against the Social Security Office (SSO), the Ministry of Labour (MoL), the Ministry of Finance (MoF), the Loan Use Oversight Committee, and the cabinet. The five defendants have been accused of executing their administrative power to cause an abuse of power or an abuse of administrative order as a result of the launch of the Section 33, We Love Each Other scheme to offer a cash handout aiming to address the need, remedy and compensate the public, farmers and employers who have been affected by the Covid-19 pandemic pursuant to the Emergency Decree Authorizing the Ministry of Finance to Raise Loans to Solve Problems, to Remedy And Restore the Economy and Society as Affected by the Coronavirus Disease Pandemic, B.E. 2563 (2020).
The Section 33, We Love Each Other scheme was approved to address the need and mitigate living costs and impacts on the persons insured with the Social Security Fund under the Social Security Act’s Section 33 in response to the Covid-19 pandemic. The amounts of 37,100 million baht (1,088,235 USD) and 48,841 million baht (1,435,294 USD) have been earmarked to help over eight million persons insured under Section 33. This scheme has, however, excluded non-Thai insured persons since it provides that only insured persons who are Thai nationals are eligible to have access to the assistance.
As a result, the migrant workers and stateless workers have suffered an injury from this action collectively committed by the five defendants who have proposed and approved the Section 33, We Love Each Other scheme. At present, there are at least one million non-Thai workers insured under Section 33. They have been paying the contributions to the Social Security Fund at the same rate as their Thai counterparts. In each year, the workers have paid over five billion baht as contributions to the Fund. But the non-Thai workers are now made ineligible to the benefit from this scheme equal to their Thai counterparts.
On 8 June 2021, the migrant workers and stateless persons have complained to the Ombudsman asking for an inquiry into and a recommendation to the Ministry of Labour and the Ministry of Finance. The Ombudsman was also asked to bring the case to the Constitutional Court to rule if the action could be construed as an unjust discrimination and segregation in violation of Sections 4 and 27 of the Constitution of the Kingdom of Thailand BE 2560 or not. Later on 15 September 2021, the Ombudsman has sent us a reply explaining its decision that the imposition of the eligibility rule under the “Section 33, We Love Each Other” to ensure its access only available to Thai insured persons was not a discrimination and therefore not a violation of the Constitution of the Kingdom of Thailand BE 2560’s Sections 4 and 27 since the provisions prohibit against an unjust discrimination on the ground of differences in race only, not including on the ground of nationality. (For more information, please see http://hrdfoundation.org/?p=2645 )
On 9 December 2021, representatives of the migrant workers and stateless persons have therefore brought the case to the Constitutional Court to decide and to recommend to the Ministry of Labour, the Ministry of Finance, and the cabinet if the “Section 33, We Love Each Other” scheme which only availed access to Thai nationals was a violation of the Constitution of the Kingdom of Thailand BE 2560’s Sections 4 and 27 or not ( http://hrdfoundation.org/?p=2679 ). On 11 January 2022, the Constitutional Court has sent its reply to the petitioners that the Section 33, We Love Each Other scheme was made possible by a resolution of the cabinet. Any liability of such administrative agency’s action falls under the jurisdiction of other courts.
Therefore, the migrant workers and stateless persons have brought the case to and asked the Administrative Court to rule if the action of the five defendants, the Social Security Office (SSO), the Ministry of Labour (MoL), the Ministry of Finance (MoF), the Loan Use Oversight Committee, and the cabinet is lawful and compatible with the Constitution of the Kingdom of Thailand BE 2560’s Section 27 or not. The court has also been asked to order the five defendants to rescind the Thai nationality qualification of an insured person under Section 33 from the “Section 33, We Love Each Other” scheme and to allow non-Thai who are insured persons under Section 33 to have access to the benefit under the Section 33, We Love Each Other scheme. 2,198 individuals have also signed up a petition in support of the case brought to the Administrative Court.
Ms. Pasuta Chuenkhachon, Human Rights and Development Foundation (HRDF)’s attorney said that the filing of the case with the Administrative Court is an exercise of the right to access to the judiciary and our last recourse. We urge the Administrative Court with its competency and independence under a democratic system to hear the case and rule to nullify the action which is tantamount to the act of discrimination and human rights violation in breach of the Constitution, administrative law and international human rights law. This should set out a social norm to promote respect of legality and human rights without discrimination. It should also reinforce the separation of power principle which prevents any single entity to assume the dominant state powers (the legislative, the administrative and the judiciary).
For more information, please contact Pasuta Chuenkhachorn, Human Rights and Development Foundation (HRDF), 0815957578 Email: firstname.lastname@example.org