1998 witnessed the first peaceful turnover of political power and the first true civilian government created in South Korea. Mr. Kim Dae-jung, persecuted under the former military regime, became the most powerful political leader as the new President. The Korean civil society as well as the international society complimented him for evolving 'from a victim of human rights violation to a human rights leader'.
President Kim Dae-jung said "I'd like to be remembered in history as the 'Human Rights President'." He promised to improve the human rights situation and strengthen democracy by revising the National Security Law, releasing prisoners of conscience, etc. He also announced the plan to establish a national human rights institution. Most Koreans and human rights activists expected him to keep his promise.
Two years later, President Kim Dae-jung's word turned out to be 'high rhetoric without action'. The promises were not kept.
The human rights bill that will create the national institution provoked harsh criticism and opposition from the human rights community at both national and international levels. It has been dubbed as "the bill of the current government for the President not for the people, and by the Ministry of Justice not by the people." Why would a large number of human rights groups express collective opposition to the bill?
In September 1998, almost a year after the election promises were made, representatives of the National NGO Coalition for the Establishment of an Independent NHRC (national NGO coalition) met with Mr. Park Sang-chun, the former Minister of Justice. They requested for a transparent and democratic process in legislating a law for the national institution. But the Ministry of Justice produced a draft human rights bill without any consultation with the civil society. And the draft bill proposes a national institution that is not independent and without power. The national NGO coalition and the Korean Lawyers' Association criticized the bill on these points. Amnesty International also criticized the draft bill and urged the government to revise it. Even the ruling party opposed it.
The following month (October 1998), the first and last public hearing on the draft bill was held by the Ministry of Justice. Many experts and representatives of the human rights community pointed out the substantial flaws discovered in the draft bill. Also, Mr. Brian Burdekin, the Special Advisor of UN OHCHR on national institutions, met the representatives of the Ministry of Justice and commented that the current draft bill would not secure an independent national institution. Subsequently, President Kim Dae-jung, in a meeting with representatives of human rights organizations, promised to formulate a draft bill which can protect people's rights and in accord with the Paris Principles.
In November 1998, the national NGO coalition held a public hearing to formulate its own draft bill. While the Ministry of Justice, facing enormous criticism, announced a revised draft bill later in the month. Again, the national NGO coalition criticized it on the independence issue. The second meeting between the Ministry of Justice and the ruling party again ended without any agreement.
On February 19, 1999 the consultation meeting between the ruling party and the Ministry of Justice was held and the second revised draft bill was announced. The national NGO coalition likewise criticized the second revised draft bill. It also staged a demonstration in front of the office of the ruling party and demanded the establishment of an independent national institution.
In March 1999, Mr. Kim Won-gil, the former chief of the Policy Planning Committee in the ruling party promised to have a transparent process in establishing the national institution and to consult human rights organizations. Later in the month, another meeting between the ruling party and the Ministry of Justice resulted in a third draft bill. The national NGO coalition again criticized the draft bill for failing to represent the opinions of the civil society and subscribe to the international standards. This draft bill was submitted to the State Council and was approved.
NGOs (including the Association of Families of Those Who Died under Suspicious Circumstances) held public protests, and thirty influential senior human rights activists held a press conference urging the withdrawal of the draft bill. These senior human rights activists called on their friend, President Kim Dae-jung, to fulfill his election promise of creating an independent national institution. They pointed out that a national institution under the Ministry of Justice would be powerless and dependent on the government and unable to properly investigate human rights violation cases.
On April 7, 1999, the bill was submitted to the Legislative and Judicial Committee of the National Assembly. On the same day, 34 human rights activists started a hunger strike for a week urging the withdrawal of the bill and re-formulation of a new bill for an independent national institution. International human rights organizations including SOS-Torture (OMCT) and Amnesty International sent a joint statement supporting the hunger strike.
In September 1999, the ruling party, seeing that it would not obtain political profits if it passes the bill, tried to revise the bill unofficially. It succeeded in expanding the jurisdiction and investigative power of the proposed national institution by persuading the Ministry of Justice. However, it failed to accept the core request of human rights organizations for a national institution that is independent from politics by making it a state institution in the Korean legal and political context. The ruling party was not able to overcome the resistance of the Ministry of Justice to protect its interests.
On December 22, 1999, the ruling party finally announced to postpone the enactment of 'Human Rights Law'. They said "we cannot pass the bill in a situation where human rights organizations are opposed to it."
The ending of the 15th session of the Korean National Assembly dropped all pending bills including the human rights bill. Following are the problems of the official bill.
The Ministry of Justice consulted only the ruling party in formulating the draft bill in clear violation of the repeated promise of consultation with the civil society and human rights experts. The draft bill was therefore a product of closed-door negotiations between the ruling party and the Ministry of Justice. Ms. Mary Robinson (UNHCR) has already emphasized that "during the establishment of a commission, a democratic and transparent process is as important as the status of the commission itself."
President Kim Dae-jung instructed the Minister of Justice to meet the representatives of human rights organizations and discuss the disputed articles of the draft bill. However, the Minister did not attempt to contact these organizations before presenting the bill to the State Council and the National Assembly. In other words, the Minister ignored the presidential order.
a. Subordination to the Ministry of Justice
Close analysis of the bill shows that the national institution proposed to be created will simply be relegated to a supporting role in the Ministry of Justice. Article 2.2 of the bill (support of state institutions to the Commission in dealing with human rights issues) and Article 6 (the Ministry of Justice will undertake human rights work) make the Commission assume a mere assisting role to the work of the Ministry of Justice. Article 65 provides that the Commission must report its opinions, processes and decisions to the Minister of Justice, and the Ministry of Justice is entitled to make separate, comprehensive reports on the human rights situation. This clearly places the Ministry of Justice in a position to monitor the activities of the Commission.
The prosecutor's office and the prisons, where human rights violations occur, are under the Ministry of Justice. How can a Commission monitor the Ministry of Justice if it is its supervising office?
The Commission, therefore, to be effective must be established as an independent state institution.
b. The Minister of Justice is entrusted with full power to establish the Commission
The problem of 'who has authority in the establishment of the commission' is vital. According to the bill, the Minister of Justice has the power to appoint the members of the committee responsible for the establishment of the Commission. This endangers the independence of the Commission. This task should instead be done by the President with the support of civil organizations and human rights experts.
c. Enactment of Presidential Decree is in the hands of the Minister of Justice.
On paper, it appears that the bill protects the independence of the Commission by eliminating the control of the budget by the Minister of Justice. However, in at least 13 items dealing with the administration of the Commission, presidential decrees are needed. Since the Ministry of Justice controls the drafting of these decrees, there is a risk of having them revised to subordinate the Commission under the government.
Koreans know well the danger of abuse of presidential decrees, having experienced arbitrary governments many times in the past. Therefore, the management and budget of the Commission must be governed by statute instead of presidential decrees in order to prevent possible abuses in the future.
d. Limited jurisdiction to investigate violations of human rights
According to the bill, the Commission can only investigate 8 kinds of violations of human rights. This limited jurisdiction means that violations of freedom of expression, rights relating to the environment, residential facilities, education and even prisoner's rights cannot be investigated by the Commission.
Therefore, the jurisdiction of the Commission should be expanded.
e. Lack of effective investigation and decisions
According to Article 48, the head of any government organ subject of investigation by the Commission can exercise veto power over the investigation if there is a perceived danger of leaking official confidential information or encroachment of privacy. The reasons for this veto power are not clearly indicated, which makes abuse possible. The Commission has no power to counter such abuse of veto power. As a result, the Commission will not be able to investigate politically sensitive cases.
The Commission has only the power to make recommendations on human rights violation cases. This is in contrast to the situation of the Fair Trade Commission, Labor Commission, and the Commission for Eliminating Gender Discrimination which all have the legal power to enforce their decisions on those found violating the law. The Ministry of Justice has stated that the Commission's power is sufficient for effective implementation of its functions, but this attitude is clearly illogical. The Commission will remain powerless unless given the authority to punish those responsible for human rights infringements.
Therefore, the Commission should have the power to control the abuse of veto power and to enforce its decisions effectively.
The UN already warned against the establishment of 'Alibi Human Rights Institution' which means an institution without independence and effectiveness, existing only as a "decoration" for the governments. The present bill has high possibility of creating an 'Alibi Institution' in South Korea.
As long as the Kim Dae-jung government fails to provide a vision for the improvement of the human rights situation in South Korea, a national institution for the people will not be able to exist in the country.
The National NGO Coalition for the Establishment of
an Independent NHRC was formed on September 17, 1998. From the
original 31 NGO-members, it now has 72 NGO-members. For more
information, contact the Secretariat Office (Sarangbang Group for
Human Rights)
E-mail addresses: rights@chollian.net;
humanrights@sarangbang.or.kr