NHRC of Korea no longer complies with Paris Principles, its status must be downgraded
- 2009.08.05 (18:37:39)
An Open Letter to the International Coordinating Committee of National Institutions for Human Rights by the Asian Human Rights Commission
Dear Ms. Lynch
SOUTH KOREA: NHRC no longer complies with Paris Principles, its status must be downgraded
The Asian Human Rights Commission (AHRC) is writing to you to request an immediate review of the status of the National Human Rights Commission of Korea (NHRCK). We request this on the basis that the NHRCK no longer complies with the Principles Relating to the Status of National Institutions on Human Rights (The Paris Principles) and the independence of the body is seriously setback by the administration. In view of this it is our belief that the NHRCK must be downgraded at the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights.
As you have already aware, due to a series of attacks on the independence of the NHRCK after the new administration, Mr. Ahn Kyong-Whan the chairperson of the NHRCK as well as the vice chair of the ICC, voluntarily resigned on June 30. Since then, several figures were nominated by the President's Office but the President nominated another person not among the nominees as the chairperson on July 16 and appointed him on July 17 without public discourse.
It is of the opinion of the AHRC that this selection fails in every respect to comply with the Paris Principles, specially, section 2 of the principles on composition and guarantees of pluralism, which reads that:
"The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of social forces (of civil society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists…"
Components of this section have been complied with in the selection and appointment of the new chairperson of the NHRCK, for reasons given as follows.
1. No procedure for appointment
No effort was made to publicise the process of selection and appointment to the commission, whether by radio, television, Internet or other media. After the resignation of the former chairperson on June 30, several nominees were named by the President's Office but regrettably, the President nominated a person as the chairperson on July 16 and appointed him on July 17 without public discourse. In fact, there is no procedure at all in the current appointment system.
The invitation of comment was made only via an interview by the media on the day when new chairperson was appointed to the commission by the President. When being interviewed on July 17 with a local newspaper, the new chairperson of the NHRCK himself said, "I don't know much about human rights but I will learn while serving as the chairperson." Indeed, neither has he had experience in the field of human rights nor had record of study or research on human rights, even though he served in a university as a professor on Civil Act.
Apart from the above, the selection and appointment of the new commission ignored related domestic laws. Under the article 5(3) of National Human Rights Commission Act, it clearly stipulates the quality of a person as serving the chairperson of the NHRC of Korea. It says, "nominees to the commission shall be appointed out of those who are recognised to have an expertise in knowledge and experience concerning about human rights and to exercise the task so as to protect and promote human rights with fair and independence". Unfortunately the appointment process does not allow for participation of the public or civil forces for public consultation or discourse on the candidates' qualifications.
In addition, the selection and appointment of the new commission effectively denied pluralist and independent representation. As of now, seven out of 11 commissioners have expertise in law. As for this reason, his appointment did not afford any necessary guarantees to ensure pluralist representation.
2. Independence is no longer guaranteed
The new administration attempted to put the legal status of the NHRCK under the direct control of the President in early 2008 under the name of efficiency. This proposal received strong criticisms by the civil society from domestic and abroad, even including ICC itself. Ultimately, it was withdrawn but the attack came in much more sophisticated way.
Since then, the NHRCK has had to face increased scrutiny by the government authorities. The National Commission of Audit attempted to undertake, for the first time, a significantly more rigorous audit of the NHRCK's activities and budget. It reportedly fielded a larger team of auditors over a long period of time during nationwide candle light demonstrations for about 100 days against the lift to the limitation of standards of importing beef. The audit report stated that the structure of the NHRCK needed to be restructured in comparison with other government institution's structure. In response to this report, the NHRCK prepared the plan for restructuring in accordance with the audit report but the Ministry of Public Administration and Security informed them to downsize 30 percents of its staff in early 2009 despite of the fact that the audit report did not mention the number of staff members.
Despite of criticisms, NHRC of Korea was restructured and 44 staff members out of total number of 208 (around 21 percents) did no longer work accordingly whereas only two or three percents of staff members applied to other government institutions. Ironically, both the Ministry and the NHRC of Korea had agreed to increase the number of 20 staff members in preparation for the implementation of the Act on Anti discrimination against the disabilities in April 2007 before the new administration. In addition to the issue of restructuring, closure of its three regional offices were raised by the Ministry but remained to have it decided in early 2010.
According to the 2007 statistics the NHRCK have doubled the number of petitions, carried out 400 percent more interviews and made ten times the number of civil appeals compared to 2002. Furthermore, as far as the regional office concerned, in a whole year of 2008, they received around 4,000 petitions.
Additionally, serious concerns arose as to whether a presidential decree can apply to the extent by which the Act itself can be damaged. Under the Article 18 of the NHRC Act 'matters for the organisation' of the NHRCK are prescribed by 'Presidential Decree', while those necessary for its operation are prescribed by the rules of the Commission. There are currently two Presidential Decrees in place, the 'Enforcement Decree' and the 'Decree on the Organisation of the NHRCK and Regional Offices'. Thus, when changes to the structure of the NHRCK are made, the relevant Decrees must be revised following deliberation by the government. However, the Presidential Decree must remain in the orbit of the Constitution as well as the NHRC Act but, through these serious actions by the government have already undermined and nullified the functions and roles of the NHRCK and even seriously hampered its independence.
Section 2 (2) of the Paris Principles also points out the importance of independence with regards to the finances of the NHRIs, which can be read, "The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not to be subjected to financial control which might affect its independence."
The NHRC of Korea is considered a 'central government institution' under the National Fiscal Act, which is defined under Article 6 of that Act as 'central administrative agencies established under the Constitution, the Government Organisation Act or other Acts'. It defines independent institutions as the National Assembly, the Supreme Court, the Constitutional Court and Central Election Management Commission. As for this reason, the budget of the NHRCK is appointed in the national budget, which is finalised by the National Assembly. The Ministry of Finance and Planning lays the National Budget draft, including the NHRCK's budget, before the National Assembly. In general, the Ministry has a power to draft the National Budget and allocate the budget amongst governmental bodies. Accordingly, after the NHRCK has prepared its annual budget, it must consult with the Ministry. If the Ministry does not agree with the budget proposal prepared by the NHRCK, the proposal is negotiated or compromised. However, as demonstrated above, no negotiation or comprises has taken place and it turns out now that it is subjected to financial control by the Ministry.
The above is a brief outline of some of the most obvious departures from the Paris Principles in the selection and appointment as well as independence of the NHRC of Korea.
The AHRC notes that pluralistic composition and independence are integral features of a national human rights institution for compliance with the Paris Principles. They are not optional. It recalls paragraph 8 of the Nairobi Declaration at the Ninth International Conference of National Institutions for the Promotion and Protection of Human Rights in 2008, that "the independence and autonomy of NHRIs, their pluralistic representation, as well as their interaction with a broad range of stakeholders, is necessary for their compliance with international standards and their effectiveness at the national, regional and international levels".
In view of the selection and appointment process as well as independence of the new National Human Rights Commission of Korea, the Asian Human Rights Commission hereby calls upon the ICC to review South Korea's status and downgrade the NHRC to "B" status, non-voting member until such a time a new commissioner is selected and appointed and removal of threats to the independence that brings the NHRCK back into agreement with international standards.
The AHRC further notes that the NHRC of Korea has maintained its "A" accreditation status since 2004 by the International Coordinating Committee (ICC) for compliance with the Paris Principles and it is known that South Korea has high possibility to be nominated as a chair of the ICC next year by way of upcoming August Asia-Pacific regional Forum. In the interview with local newspaper on July 29, the NHRC of Korea recognised the current chairperson of the NHRC of Korea has no background of human rights so that it would be difficult to get credits from other members. Therefore it considered nominating an expertise in the field of human rights who has had knowledge and experience in human rights forums internationally as a candidate to the chair of the ICC on his behalf. However it finally decided afternoon on July 30 that it would nominate no one to the candidacy. It is a clear counterevidence that even the NHRC of Korea itself lost its credits.
Human rights organisations and individuals have already started withdrawing their cooperation with the NHRC of Korea which indicates not only against the appointment and selection of new commission but also against serious setback of independence of the body. We are confident that the ICC will be concerned to adhere scrupulously to the principles that it is assigned to uphold, lest the body itself and deserving A-accredited institutions cooperate with the national institution that has been losing its independence and soon to be influenced by the government, which has now been perpetrated in South Korea. We are alarmed that the NHRC of Korea has already been politically influenced so that it started censoring itself from ongoing human rights violations cases and therefore remain silent.
Finally, the AHRC wishes to add that the selection and appointment of this new National Human Rights Commission and serious setback of its independence in a manner contrary to the very principles that the commission is supposed to represent speaks both to the utter disinterest in the work of Korea's national human rights institution among people in the country's current administration and to very low respect for and knowledge about human rights among the authorities there. Not only has the NHRC been relegated to a second-class institution of little relevance to the work of independence of the state, but also government agencies in South Korea after new administration continue to treat human rights as at best irrelevant and more often than not as obstacles to their work. The manner of selection and appointment of the new NHRC and lack of independence and as well as its withdrawal to the candidacy to the chair of the ICC are indicators of the growing anti-human rights culture that evokes all official institutions in South Korea, now including, it would seem, the National Human Rights Commission itself.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong, Special Administrative Region of China-based group was founded in 1984.