[VIEWPOINT]Help the blind, but do it constitutionallyThe government has the duty to protect physically disabled people, including the blind. I am sure nobody will object to this, without the need to mention Article 34, Clause 5 of the Constitution. But what do we do if the measures taken by the government for the protection of the blind go against the Constitution?
The Health and Welfare Committee of the National Assembly recently passed a revised medical bill that defines the qualifications of massage therapists. Under the revised medical bill, only blind people who have received training at a special school equivalent to the level of a high school, or graduates of middle schools who have received at least two years of training at a massage training facility authorized by the Ministry of Health and Welfare, can practice massage therapy.
The revised bill is in response to the ruling by the Constitutional Court in May that it was unconstitutional for the Health Ministry to only allow the blind to work as massagers. However, this revised bill still includes elements which the Constitutional Court ruled unconstitutional.
Can we say that the means and ways of implementation do not matter if the goal is just? Not only the legitimacy of the goal, but also the procedure and the methods of implementation should not violate the rule of law.
When the medical bill on massagers was declared to be unconstitutional, five judges of the Constitutional Court ruled that the law that defined only blind people as qualified to be massagers was unconstitutional because it went against the legal principle that prohibits the law from being biased against a certain side.
In other words, even though it is for the benefit of the public to guarantee a living for blind people, they can still work as massagers even if their exclusive right for this particular job is taken away from them.
Yet the revised medical bill fundamentally deprives ordinary people or other physically disabled people other than the blind the chance to acquire qualifications to be a massage therapist.
Therefore, the goal and the method of the revised bill are not appropriate.
According to the Ministry of Health and Welfare and the Korean Massagers Association, about 3.68 percent of all registered blind people and 18.66 percent of severely blind people actually work as massage therapists.
Even then the revised law violates the freedom of other disabled people, except the blind, and non-disabled people to choose a job, thereby going against the principle of minimum violation of basic human rights.
And since denying someone the chance to enter into a certain profession by imposing a condition that cannot be solved through personal effort or will is in violation of the fundamental freedom to choose a profession, the court judged the law to be unconstitutional.
Yet the Health and Welfare Committee of the National Assembly passed a revised bill that contains almost all of the clauses of the previous regulations on massagers. There is a big chance, therefore, that the debate on the unconstitutionality of the law will be rekindled.
The Constitutional Court did not judge that the blind do not need protection, but that the law was unconstitutional because the method of protecting the blind violated the basic human right of non-blind people to choose a job.
Therefore the blind should be protected in a way that is not unconstitutional.
In other countries, the management right of sales facilities in public buildings is given exclusively to the blind. Another possibility would be making it mandatory for public health centers or workshops of a certain scale to employ industrial massagers who are blind. I could not find a precedent in foreign legislation that gives the exclusive right to blind people to work as massagers.
It is truly a pity that the National Assembly passed a bill that goes against the decision of the Constitutional Court. It would not limit the prerogatives of the legislature itself for the National Assembly to respect the decision of the Constitutional Court.
Both the National Assembly and the Constitutional Court are institutions that were established under the Constitution, but the constitutional order will be maintained only when they respect each other’s authority. If the National Assembly, in the course of legislation, reflects the opinion of the Constitutional Court by accepting its decision that there are unconstitutional elements in the law, it will help the nation avoid consuming debates on the unconstitutionality of the law later on ― and thereby contribute to the national interest and integration of the people.
I hope that the Legislation and Judiciary Committee and the plenary session of the National Assembly will understand the intent and purpose of the Constitutional Court’s decision when they deliberate about the revised medical bill.
By doing so they can set a precedent in how to overcome confrontations, conflicts and divisions that prevail in our society.
* The writer is a lawyer. Translation by the JoongAng Daily staff.
by Lee Kyung-sup