National Human Rights Commission of Korea

Miles To Go

The recent annual conference of the International Coordinating Committee on National Human Rights Institutions in Seoul, South Korea, represented an ideal opportunity to review the performance of Korea’s own national institution from its inception in 2001 to the present day. However, a comprehensive evaluation of the National Human Rights Commission of Korea (NHRCK) does not appear to have been on the list of priorities for the Korean NGO community or for international organisations working on national human rights institutions (NHRIs). NHRIs represent a significant tool for the protection and promotion of human rights on the domestic level.

Whilst notable achievements have been made, an examination of the working of the NHRCK regrettably highlights problems that are common to other institutions in the Asia-Pacific region, including statutory limitations on independence, lack of transparency and plurality in the appointment process, insufficient resources, limited investigative and enforcement powers, inaccessibility, and a strained relationship with civil society. In certain instances these shortcomings derive from legislative restrictions, and the NHRCK is often quick to acknowledge that they exist. Other failures, however, are the responsibility of the NHRCK alone.

Political wrangling beset the Commission even before it came into existence. The first drafting of the National Human Rights Commission Act in 1998 met with criticism from all neutral parties, not least because its preparation was undertaken solely by the Ministry of Justice. Subsequent revisions of the bill were also uniformly dismissed as a betrayal of the vision of an independent human rights institution, culminating in protests that gathered considerable attention and support from international human rights groups.

Despite these developments, the government proceeded to table the NHRC Act, which passed in May 2001 and authorised the establishment of the NHRCK in November 2001. This culminated in a split within the Korean NGO community, between those who decided it was best to accept the Commission for what it was, and those who refused to do so. This division persists to this day. 

The appointment of Commissioners was the first aspect of the NHRCK to be called into question. The NHRC Act does not provide institutional guarantees for transparent deliberation of the appointment process or consultation with civil society, despite very clear requirements to this effect prescribed by the Paris Principles. Most of the initial appointments were made behind closed doors without any public consultation. Certain commentators claimed that many of the appointees were ill qualified or showed a general lack of commitment even to the principles of human rights. These allegations appear to be supported by recent appointments and resignations, including that of Commissioner Ryu Kuk-hyun, who resigned from office only one month after his appointment by President Kim on account of NGOs exposing his poor human rights record.

The organisational rules of the NHRCK and the secretariat are dictated by Presidential decree, which in effect assures that the Minister of Government Administration and Home Affairs  (MOGAHA) is centrally involved in the organisation of the Commission. Despite provisions in the NHRC Act that empower the Commission to plan its budget, the Ministry of Planning and Budget decides how much the Commission will be allotted, being potentially determinate on how critical the Commission is of government activity. These connections undermine claims to independence and autonomy from government – a prerequisite to the legitimacy of any national human rights institution.

The functioning of the Commission itself is hampered by insufficient human resources. The fact that only four Commissioners are employed full-time may be seen to affect the external credibility of the Commission and the capacity of the Commissioners to adequately apply themselves to the job. Structurally, the investigative powers of the NHRCK as a quasi-judicial mechanism have also been a cause of concern. As it stands, the NHRC Act limits the Commission’s jurisdiction to those cases that are not under investigation by another investigative agency, prohibiting the Commission from “unduly participating either in the proceedings in pending or in the prosecution for any cases the criminal investigation of which is in progress.” It also allows other government agencies to refuse to submit materials upon the Commission’s request. 

In those instances where the Commission is entitled to cooperation, it is often on restricted terms. For instance, in interviewing detainees the NHRC Act only provides that detention staff cannot participate in or record an interview between a detainee and a Commissioner, but “the said staff may watch them at a distance of visibility.”

The NHRCK has also been brought to task by observers for its slow handling of petitions and the surprisingly high number of rejections that it issues, particularly given that the commission is mandated to be a “fast, effective and inexpensive relief mechanism.” It has been documented that in August 2002, out of a total of 2555 petitions, only 12 received final decisions. The NHRCK does admit that the shortage of personnel leads to delays in processing and that, initially at least, staff inexperience and a lack of co-operation from other investigative agencies has contributed to the current backlog, but this does not assuage the fact such a clear imbalance in figures only serves to deflate public confidence in the NHRCK’s ability to remedy human rights violations quickly and effectively. This is an immediate and very serious problem for the Commission.   

The validity of the Commission’s investigative outcomes also suffers due to a lack of enforcement power beyond a moral compulsion and a duty on the institution of the respondent to “respect said recommendation and notify the Commission of the results.” Whilst the NHRC Act does provide for penal sanctions for “obstruction of performance of human rights duties”, the fact that these penalties may not exceed ten million won (approx. US$ 8,580) weakens their strength of deterrence. 

In its capacity as an advisory body, the NHRCK has been more successful, with the majority of its recommendations to the national assembly in 2003 either accepted partially or in full, or are still under review. However, in recent years the President has chosen to ignore the recommendations of the NHRCK on most major national policy issues, such as the National Education Information System. Whilst this highlights a third tier of obstruction in the effective functioning of the Commission beyond its statutory and internal limitations, namely the lack of authority that it is granted on account of its quasi-judicial nature, some observers have criticised the Commission for not following up on its recommendations and utilising its moral authority by extensively publicising its recommendations and their non-compliance.

This drive for publicity would be especially welcomed by those who feel that the NHRCK is becoming progressively reclusive in its activities and is increasingly acting contrary to the principles of transparency. Whereas the NHRCK’s original policy, for instance, was to chair public meetings except when confidentiality was strictly necessary, nowadays, it is alleged, private meetings have become the norm. The NHRCK has also had to contend with accusations of inaccessibility. It has no branch offices outside Seoul and only occasionally visits other regions, mostly larger cities, leading to criticisms of bureaucracy and reluctance to do groundwork in those areas where it is needed most. Non-Korean speakers have felt particularly alienated. Migrant workers, who constitute a significant minority in Korea subjected to public and private discrimination, feel that access to counselling and the petition process is not readily available to them.

The NHRCK has been moderately successful in the promotion of human rights in Korea. It is currently in the process of advancing a human rights education five-year plan with the aim of raising awareness and cultivating a culture of human rights in Korea. It has also published studies of the Korean government’s compliance with international human rights instruments to which it is a party, and to international human rights law in general. These are commendable projects, yet it remains unfortunate that the NHRCK is unable to foster a culture of human rights in Korea by bridging the divisions that persist between itself and certain NGOs. The NHRCK has reportedly established a Domestic Cooperation Department to organise bi-monthly meetings with civil society from May 2003, and this, it is hoped, may work towards a reconciliation of differences.

A number of steps are required if the NHRCK is to carry out its tasks effectively. First, the appointment of commissioners should be undertaken publicly in consultation with civil society and according to clear and specific rules that guarantee plurality, transparency and fairness, in accordance with the minimum standards prescribed by the Paris Principles. This requires a statutory amendment to be proposed by the NHRCK in its forthcoming annual report and transmitted directly to the national assembly.

Two, the Commission should seek the authority to investigate cases which it deems to be under its jurisdiction, irrespective of whether they are under investigation by another agency, excepting those under court proceedings. The Commission should also be empowered to compel other government agencies to provide materials where appropriate.

Three, the Commission should rectify the injustice of not granting detainees a private interview by way of proposing a repeal of the offending provision of Article 31 of the NHRC Act.

Four, the Commission should retain its original policy of holding open meetings unless confidentiality is strictly required, and should disclose the details of meetings to allow the public to exercise their right to information.

Finally, the Commission would also benefit from the creation of branch offices in order to reach those people who may need the commission most. It should also publicise their work in minority languages whenever possible and be accessible to non-Korean speakers.

Human Rights Features