2008.08.20
The NHRCK determined that the current Medical Law violates the right to equality and has a substantial impact on the protection and promotion of the rights of the visually impaired. The Commission appealed to the Constitutional Court.
In regards to this case, the NHRCK focused on the following points in terms of protection and promotion of the rights of the visually impaired.
First, Medical Law, which limits the qualifications for becoming a massager only for the visually impaired, must correspond with the principle of equality of the Constitution. Article 34, Section 5 of the Constitution regulates ‘Those who are not able to support their own economic livelihood because of physical disability, illness or old age etc are guaranteed protection by the nation according to the law.” and this Article specifies the Constitutional State’s liability to take active measures to guarantee substantial right to equality for the visually impaired. Accordingly, this case is not in violation of the right to equality of those who are not visually impaired.
Second, the NHRCK determined that the right to live for the visually impaired is a more urgent issue than the freedom of occupational choice for those who are not visually impaired. While it is difficult for the visually impaired to find alternative occupation, those who are not visually impaired can make a living by finding other occupations or engaging in physical therapy. The freedom of occupational choice of those who are not visually impaired can be limited within a definite range to ensure the right to live for the visually impaired.
Third, the NHRCK determined that providing an exclusive right in the massage industry to the visually impaired is reasonable according to precedents of international standards of the rights of the persons with disabilities. Throughout other countries, the visually impaired are given exclusive rights or priorities in certain occupational fields. Taiwan set aside an exclusive right for the visually impaired in the massage industry and Japan allocates 70 percent of its quota to the visually impaired. Furthermore, Spain provides exclusivity of lottery sales to the visually impaired and Italy provides exclusivity to telephone operators to the visually impaired as well. However, in Korea, the visually impaired have been provided the bare minimum in regards to their right to live without being provided with alternative means; thus, the current practices result in a step backwards in the protection of the rights of persons with disabilities.
Hopefully, the decision of the Constitutional Court will spur the momentum to provide redress for and guarantee the protection of rights of the visually impaired and their substantive right to equality.
