GUEST WRITERS:
WHAT WOMEN SHOULD KNOW ABOUT THE OMBUDSMAN
by Pramote Chotemongkol

Although the Constitution guarantees equal fundamental rights for men and women, in reality many women still suffer injustice and discrimination, even under the law. Injustice is evident in areas such as limited opportunities for career advancement, different titles for unmarried and married women, the prevalence of domestic violence against women, and barriers to women’s participation in the political arena, to name but a few. It is therefore necessary for all citizens to continuously monitor such injustice to resolve these entrenched social and legal problems, in order to advance the role and status of women in Thai society.

The Ombudsman provides a constitutional mechanism established to protect human rights, including women’s rights. As a result, all women may participate equally in political processes and government administration using their constitutional right to petition when they suffer injustice, or when they witness a law that unjustly discriminates against women.

The Ombudsman’s role in protecting women’s rights

The 1997 Constitution focused on guaranteeing and protecting the rights and liberties of all citizens. The relevant provisions are stated in Chapter 3 from Section 26 to 65. Section 30 states as follows:

“protection under the law. Men and women shall enjoy equal rights. Unjust discrimination againts a person on the grounds of differences in origin, race, language, sex, age, physical or health codition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. Measures determined by the State in order to eliminate obstacles to or to promote a persons' ability to exercise their rights and liberties as other persons shall not be deemed as unjust discrimination under paragraph three.”

The Constitution clearly established rights and liberties for women that are identical to those of men. Furthermore, a person’s rights to file complaints and sue State agencies were confirmed as follows:

Section 61: “A person shall have the right to present a petition and to be informed of the result of its consideration within the appropriate time, as provided by law.”

Section 62: “The right of a person to sue a State agency, State enterprise, local government organization or other State authority which is a juristic person to be liable for an act or omission done by its Government official, official or employee shall be protected, as provided by law.”

Therefore, if a woman is treated unfairly, she has the right to present a petition or sue any State agency. She has the right to access established Constitutional mechanisms for human rights protection, which are the Constitutional Court, the Administrative Court, the National Human Rights Commission, and the Office of the Ombudsman. As well as investigating and ruling on citizen’s grievances in order to relieve and amend suffering and injustice, the Office of the Ombudsman may also submit laws that are alleged to be in conflict with the Constitution to the Constitutional Court or the Administrative Court for a ruling.

The rules for submitting a petition to the Ombudsman are as follows:

Eligible complainants:

1. A person or a group of people to whom harm has been caused unfairly, or a person who is a witness to the alleged incident or the subject of his/her complaint.

2. The Senate’s or the House of the Representatives’ commissions have investigated an issue and referred the matter to the Ombudsman for further consideration.

Filing a petition
Complaints may be filed in many ways: petitioning in person, by mail, by asking others to send it on one’s behalf, through a member of the House of Representatives or a senator, or simply by calling a free hotline number 1676.

Since its establishment in the 2000 fiscal year, the Office of the Ombudsman has accepted a total of 3,409 grievances from women, representing 26% of all complaints accepted. Most petitions filed are concerned with injustice and negligence caused by civil servants, employees, and officers of State agencies at every level and category. The Ombudsman responds to every petition. The top five complaints are concerned with police officers, land disputes, local government administration, public utilities, and education.

Case of complaint:
A complainant petitioned the Ombudsman to submit its comments to the Constitutional Court for a ruling on the constitutionality of the 1962 Name of Person Act, Section 12, which states that “a married woman must change her last name to her husband’s”. The complainant claimed that such a requirement represents unjust discrimination against women, which meant this Act was in violation of the 1997 Constitution of the Kingdom of Thailand, Section 30.

Having considered the petition, the Ombudsman agreed that this provision creates legal inequality between the status of men and married women, and also restricts a married woman’s right to use their own last name. Therefore, they do not have the right to choose their own last name, in contrast to married men, whose right to choose their last name is not revoked on marriage. The 1997 Constitution, Section 30, specified that men and women are to be treated equally, and prohibits discrimination due to differences in gender and individual status. Therefore, in this case the Ombudsman agreed with the petition that Section 12 of the Act was likely to be in violation of the 1997 Constitution.

The Ombudsman’s office therefore submitted its opinion to the Constitutional Court, which concurred with the original petition. The Court ruled that Section 12 of the 1962 Name of Person Act can be characterized as depriving the right of married women to choose their family name, resulting in a legal inequality and discrimination. Section 12 was thus ruled unconstitutional and therefore unenforceable according to Section 6 of the Constitution.

Applying the principle set out in Section 30 (paragraph 2) of the 1999 Ombudsman Organic Law, the Ombudsman submitted a copy of the Constitutional Court verdict to the Minister of the Interior, since responsible agencies must abide by the Constitutional Court’s rulings. Moreover, the Ombudsman has also been attempting to amend the 1962 Name of Person Act to bring it into compliance with the Court‘s ruling. The Ministry of the Interior issued a notice providing guidance according to the Court’s ruling, which was circulated to all district and local registration offices across the country. The circular notice contained the following clauses:

Should a married woman not wish to change her last name to that of her husband’s, she may continue to use her own last name, referring to the Constitutional Court’s ruling. If a married woman wishes to use her husband’s last name, she may do so, according to the 1962 Name of Person Act, Section 12.

Notwithstanding this choice, from June 5, 2003 on:

a) the choice of a woman’s title must abide by the original 1917 Royal Decree enforcing rules of women’s title use; and

b) the choice of a child’s last name is in line with Section 5 of the original Civil and Commercial Code, Section 1561.

The eventual outcome of this challenge was a tabling by Cabinet of a new Name of Person Act in the House of Representatives. New text for Section 12 was proposed, which now reads as follows:

“A person has the right to use one’s own or the spouse’s last name as mutually agreed when married. In case there is no agreement, each spouse may use their own original last names. In case there is no agreement on marriage, the couple can agree any time during the duration of the marriage. The agreement of last name choice from the first and second paragraphs can be changed at any time”.

In this case, the Ombudsman reported the results of the petition to the President of the House of Representatives and the President of the Senate as a special case, according to Section 33 (3) of the Ombudsmen Organic Law. Also, the Ombudsman has already notified the complainant as to the ruling of the Constitution Court.

The Ombudsman’s Office provides a mechanism for ordinary people to petition against any law to the Ombudsman so that they can rule on the issue and submit the case to the Constitutional Court for final ruling. Injustice and discrimination against women in society remains a prime focus for the Ombudsman's Office, and equality between the sexes stands as a barometer of Thailand's progress towards a modern 21st century democracy. •



Background to the Office of the Ombudsman

The term "Ombudsman" is Swedish in origin, and means agent, proxy, deputy, or authorized representative, and denotes someone who acts on behalf of another in taking taken up a citizen’s problems with government and public authorities. The main duty of the Ombudsman is similar throughout the world, that is, to investigate public complaints about maladministration within government organizations, provide recommendations for remedial actions, and report to the House of the Representatives, Senate and the public. Those reports will reflect public attitudes, which will generate discussion, leading toward improvements in transparency and justice in society.

In the past in Thailand, the King governed the country through absolute monarchy. During the Sukhothai era around 720 years ago, the liberty and rights of the citizens were in fact quite broad, allowing freedom in commerce, property, inheritance, and importantly, rights such as the freedom to petition. Under King Ramkhamheang, people could petition the King by ringing a bell near the town hall to announce that they were in trouble with the officials, and needed the King’s intervention. When the King heard the ringing bell, he came out, discussed the problems with the complainants, and issued rulings according to the evidence.

From that time, the people’s right to petition the king became an established tradition, persisting unchanged until the Rattanakosin era. In 1932, when Thailand’s political system changed from an absolute monarchy to a democracy, the King’s powers were curbed under the Constitution. Since then government and its administration has become more complex and less direct- today the king no longer personally resolves civil grievances, and complaints go instead to the executive branch of government.

Before 1973, the idea of controlling and inspecting the executive branch, and especially the concept of appointing an Ombudsman had not yet gained a foothold in Thailand. This was because at that time, Thailand’s democracy was by no means fully fledged. The ruling regime still exercised authoritarian control, and was supported by the military. Therefore, voicing opinions proposing control over the executive branch was at best a futile exercise because it was so alien to the current political context.

However, Thailand’s political culture was slowly but surely evolving, and in 1975 the Constitutional Drafting Assembly proposed a legal mandate for the Office of the Ombudsman in the draft Constitution. However, the Legislative Branch decided to delete this section from the final Constitution, on the grounds that the Ombudsman was yet another institution within the legislative system and ought not to be given a mandate to interfere with the administration, as this might undermine the performance of government.

From 1989 to 1990, the House Administration Committee and members of the Parliamentary Affairs Committee, together with the Social Policy Study Institute and the Thai Social Science Association revived the attempt to establish the institution of the Ombudsman, and this time round there was strong support for the committee’s proposal to establish the Ombudsman to act as "Public Protector."

The 1991 Constitution, promulgated during the Anand I government, included a provision (Article 162, second paragraph) requiring the creation of the Office of the Ombudsman. Sadly, due to the absence of a timeframe for this appointment, there was no recruitment or appointment of any Ombudsman during the period of the 1991 Constitution.

However, the 1997 Constitution which replaced it (and which was only recently abrogated following the September 2006 coup) was drafted by a Constitutional Drafting Assembly, and dealt more specifically with the Ombudsman’s role. Articles 196, 197, and 198 provided a mandate for an organic law on Ombudsman to be enacted. And so, in due course Parliament endorsed and promulgated the 1999 Ombudsman Organic Law. Finally, on 1st April, 2000, His Majesty the King granted the Royal appointment of Thailand’s first Ombudsman. The whole process had taken 25 years of political evolution.

Powers and duties of the Office of the Ombudsman

The main role of the Office of the Ombudsman is to investigate the performance of the executive branch through complaints filed by citizens. It also adjudicates on problems in the executive branch’s administration and suggests resolutions for the executive branch’s related agencies.

According to the Organic Law on Ombudsmen, 1999 the mandate of the Ombudsmen is as follows:

1. Consider and investigate complaints when a civil servant, member or employee of a government body, state agency, State enterprise or local government violates the law or exceeds the jurisdiction of his or her authority, or when an action or inaction by civil servant, member or employee of a government agency, state enterprise or local government causes harm, damage or injustice to an individual or to the general public, whether or not this action or inaction is within his or her jurisdiction, or the law warrants investigation.

2. Submit reports, comments, and recommendations to the National Assembly.

3. If, in the opinion of the Ombudsman, a law, regulation, or action of an individual under Section 16(1) is in violation of the Constitution, the Ombudsman shall refer the matter to either Constitutional Court or an Administrative Tribunal, as appropriate, for further review.

4. Any complaint not within the jurisdiction of the Ombudsman or not accepted for consideration by the Ombudsman under Section 25 may be referred by the Ombudsman to the appropriate government body.

5. Notify the authorities concerned in government departments, independent agencies, and State enterprises about the suggested procedures and provisions so that the agency concerned will be able to adjust and amend the related laws, regulations, orders, or Cabinet Resolution. If it is a Cabinet Resolution, the Ombudsman has to report to the Cabinet.

6. If the evidence found indicates that an officer, who was the source of the complaint, is guilty of criminal, disciplinary, or corruption charges, notify the agency of the officer concerned in order for them to undertake further investigation. The chief of the agency has to report on progress of the investigation to the Ombudsman, every three months.

7. Request government departments, independent agencies, and State enterprises to submit facts, evidence, witnesses, and related documents to the Office of the Ombudsman in order to support an investigation. Request the Attorney General's Officer, investigating officer to fulfil examination by providing information.

8. Issues related to the rules and regulations under the 1999 Organic Law on Ombudsmen. •