27 September 2021
In its reply to migrant workers, the Ombudsman finds “Section 33, We Love Each Other” scheme”
Does not constitute a discrimination and not breach Constitution’s Section 27 given its discrimination based on race, not nationality
On 2 September 2021, the Ombudsman signed off a reply containing its decision regarding the complaint from representatives of migrant workers concerning the government’s relief program proposed by the Ministry of Labour, the “Section 33, We Love Each Other” scheme” to address living costs and mitigate impacts on persons insured under Section 33 of the Social Security Act 1990, during the new outbreak of Covid-19. Its funding has been acquired from a project under an action plan or a project purported to remedy, support and compensate the public, 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), under action plan or project no. 2 with the total budget or 31.7 billion baht. There are around 9.7 million workers who are insured persons pursuant to Section 33. It, however, require that the eligible insured person must only be Thai nationals. As a result, we, as migrant workers with Myanmar nationality and being stateless, respectively, who are likewise insured persons pursuant to Section 33, are denied access to such cash relief.
The migrant workers find that the scheme is in breach of the Constitution of the Kingdom of Thailand BE 2560’s Sections 4 and 27 regarding the protection of human dignity, rights, liberties and equality and non-discrimination against individuals, in breach of Section 5 of the Emergency Decree Authorizing the Ministry of Finance to Raise Loans to Solve Problems, to Remedy, in breach of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) to which Thailand is a state party. The Ombudsman is, therefore urged, to invoke Section 22 of the Organic Act on the Ombudsman BE 2560 to investigate the matter and recommend to concerned Ministries as follows;
- Inquire and recommend to the Ministry of Finance, the Ministry of Labour and the cabinet that the “Section 33, We Love Each Other” scheme which only benefits insured persons who are Thai citizens only, which is in breach of Sections 4 and 27 of the Constitution of the Kingdom of Thailand BE 2560 or not.
- Recommend to the Ministry of Finance, the Ministry of Labour and the cabinet to rescind the requirement of insured persons pursuant to Section 33 who ought to be Thai citizens only.
Ombudsman’s opinions can be summarized that the Constitution of the Kingdom of Thailand BE 2560’s Sections 4 and 27 uphold and protect human dignity, rights, liberties and equality and prohibit unjust discrimination against a person on the grounds of differences in origin, race, whereby the term “race” according to the Royal Institute Dictionary BE 2554 is defined as “n. persons who share the same race”, whereas the term “nationality” is defined as “n. birth, emergence, being subject to the control or the rule of the same nation, (rule) legal status of a person which indicates their citizenship or being a person under the rule of a particular country.”
By holding a nationality indicates the legal status of a person and how the person is related to or is subject to the power of a particular state, which has given rise to their rights and duties as a citizen of the state. By holding a nationality, one is legally obliged to the state under which they hold the nationality in terms of rights and duties as provided by law. This makes them different from non-holders of the nationality or aliens. The rights of aliens are thus restricted and lower than that of holders of a nationality including their political, economic, social, and cultural rights. This notion is different from “race” which refers to specific biological characteristics intrinsic to a person from birth and is expressed through their genetic attribute, their physical appearances, skin and hair colors, their eyes, etc. Therefore, although the Constitution of the Kingdom of Thailand BE 2560’s Section 27 paragraph 3 prohibits unfair discrimination based on racial discrimination but does not include nationality.
Therefore, the Ministry of Finance’s, the Ministry of Labour’s and the Social Security Office’s implementation of the “Section 33, We Love Each Other” scheme pursuant to the cabinet resolution which specifies that an eligible person must only be a holder of Thai nationality, does not constitute an unfair discrimination based on racial discrimination and does not infringe on human dignity, rights, liberties and equality of a person as alleged by the complaints.
- May the Ombudsman please forward the matter to the consideration of the Constitutional Court to review if Section 5 of 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) may not comply with Sections 4 and 27 of the Constitution of the Kingdom of Thailand BE 2560, or not.
- If the Ministry of Finance, the Ministry of Labour and the cabinet fail to act as recommended in (1) and (2) by the Ombudsman, may the Ombudsman file the case with the Administrative Court to have the Court rule promptly.
Ombudsman’s opinion can be summarized that Since the implementation of the “Section 33, We Love Each Other” scheme pursuant to the cabinet resolution does not constitutes a racial discrimination, it is, therefore, not in breach of the Constitution of the Kingdom of Thailand BE 2560’s Sections 4 and 27 which may enable the Ombudsman to file its opinion to the Constitutional Court or the Administrative Court and seek their judgement.
The Human Rights and Development Foundation (HRDF) which has been offering legal assistance to migrant workers finds that the Ombudsman’s opinions do not hinge on international standards and international human rights conventions to which Thailand is a state party and is obliged to act in its compliance, particularly during the time when the Covid-19 pandemic has taken its toll on all citizens under the jurisdiction of Thailand. The implementation of policies through response should aim at preventing and controlling the spread of the diseases that affect all citizen. Therefore, any responses to offer care, remedy, and rehabilitation from the impacts by the state have to be offered based on an equal basis.
During the (Global Compact for Safe, Orderly and Regular Migration (GCM) at the United Nations’ conference hall in Bangkok, the Minister of Foreign Affairs and Deputy Prime Minister Don Pramudwinai admitted that migrant workers in Thailand are part the labour force that helps to drive forward the economy and a key partnership for sustainable development. Therefore, migrant workers must not be left behind amidst the Covid-19 pandemic. They must receive help and have their problems addressed since no one is safe until everyone is safe. In addition, according to Committee on the Elimination of All Forms of Racial Discrimination’s opinion on Thailand, during 6 – 31 August 2012 during the 81st session “The state party shall ensure all foreigners living in the country have access to human rights regardless if they are regular or irregular migrants. It is specifically recommended to the state party to make an effort to prevent and remedy gross violations against its non-citizen workers including those employed unlawfully.”
For more information, please contact: Pasuta Chuenkhachon, Coordinator of the Migrant Justice Programme (MJP), Human Rights and Development Foundation (HRDF), phone 0815957578, email [email protected]