1. The Asian Legal Resource Centre (ALRC), an NGO with general consultative
ECOSOC status, wishes to make a brief, non-exhaustive submission concerning one
recent and crucial human rights issue that has arisen in the days prior to the deadline
for submissions to the Universal Periodic Review by the members of civil society.
While there are many issues that require the attention of the Human Rights Council
and the international community concerning the state of human rights in the Republic
of Korea, however, the ALRC wishes here to concentrate on one key issue – the
growing threats to the independence of the National Human Rights Commission of
Korea (NHRCK) – as this issue must be taken up without fail during the review
process if such threats materialise in the coming weeks.
2. A recommendation made by the Chairperson of the Presidential Transition
Committee in mid-January to bring the National Human Rights Commission of Korea
(NHRCK) under the immediate control of the President currently threatens the
independence of this commission. The commission was established in 2001 as the
result of national consensus, in order to prevent the repetition of the human rights
violations that had taken place during the country’s military dictatorships in recent
decades. The NHRCK is an important landmark in Korea’s development as a
democracy. An attack on the independence of this commission will therefore be a
serious setback in the country’s struggle for democracy and human rights.
3. On 16 January 2008, the Chairperson of the Presidential Transition Committee, Lee
Kyung-sook, published a draft plan concerning the restructuring of the government’s
organizations, purportedly in order to streamline and increase the effectiveness of the
various government organs. The Committee is mandated to propose various practical
measures to be taken by the next administration when it is inaugurated in February.
4. Amongst several other plans, the Committee’s draft states that the National Human
Rights Commission of Korea (NHRCK) is to be under the immediate control of the
President. According to the Committee the three main reasons for this are:
• There are a large number of committees within the government and they
impede responsible administration and prevent speedy decision making;
• Currently, the NHRCK violates the principle of separation of the three powers
stipulated by the Korean Constitution because the body has an independent
status and does not belong to the administration, the legislature or the
judiciary;
• The NHRCK has been evaluated as occupying too high a position and the
body must therefore be placed under the Office of the President in order to
normalise this situation.
5. The NHRCK was established on November 25, 2001 after a three year consultation
period with a wide range of sectors and actors in Korean society. Under the past
military regime, the prosecution played a leading role in violating human rights and
the judiciary did not fulfil its role to protect and promote human rights. Human rights
violations that occurred during this time remain unresolved to date. With the
acknowledgment of this situation, the people participating in the discussion
concerning the establishment of the NHRCK agreed to guarantee the body’s
independence from any of the country’s institutional pillars.
6. The Act on the Establishment of the National Human Rights Commission provides
the NHRCK with the authority to monitor human rights violations committed by the
country’s law enforcement agencies. This monitoring also applies to the executive,
including the Office of the President. If the NHRCK is to be under the direct control
of the President, such monitoring will undoubtedly be hindered or even halted, and
the body will likely be heavily politicised. The independence of national human rights
institutions is a requirement that is stipulated within the “Paris Principles” adopted by
General Assembly resolution 48/134 on December 1993. There is no doubt that the
independence of such bodies is the cornerstone of their existence, effectiveness and
utility.
7. As mentioned above, the Presidential Transition Committee declared that one of its
reasons for suggesting the NHRCK be brought under the Presidential control is the
question of the “separation of three powers.” As it stands, the Committee argues that
the NHRCK cannot remain outside these three constitutional powers, and must
therefore be placed under one of them – in this case, the executive. This argument,
however, runs contrary to the Paris Principles and must therefore not be pursued. It is
vital for national human rights institutions to remain as independent organs that can
ensure that international human rights norms and standards are respected by the three
constitutional powers. Human rights are considered as being among the main
principles guiding the Korean Constitution and all of the government’s institutions,
including the three powers – the legislature, executive and judiciary. The NHRCK
must be independent from these in order to ensure that the Constitution is being
respected in terms of the respect for human rights by the State.
8. The Asian Legal Resource Centre urges the various committees within the National
Assembly that will be evaluating this plan, to reject it, as it will be a significant step
backwards for human rights if allowed to go ahead. In the case that the National
Assembly decides to place the NHRCK under the Office of the President, the ALRC
calls on the government of President-elect of South Korea, Lee Myung-bak, to
immediately begin a process of consultation and consensus-building with Korean
civil society as soon as it comes to power. It is recalled that the NHRCK was created
as the result of a lengthy consultation process and that all stake-holders in this process
should be consulted before any such radical changes to the system are made. If
Korean society opposes this plan, it must be abandoned.
9. The Asian Legal Resource Centre is gravely concerned about the above plans to
undermine the independence of the National Human Rights Commission of Korea.
Such plans will hopefully be abandoned, but, if they were to be carried out, the ALRC
insists that this issue be taken up as a central matter of concern within the Universal
Periodic Review process.