[AHRC] What can be done when National Institution itself tries to subordinate to administration?

An Open Letter to the International Coordinating Committee of National Institutions for Human Rights by the Asian Human Rights Commission

In addition to our previous communication requesting an immediate review of the status of the National Human Rights Commission of Korea (NHRCK) based on its non-compliance with the Paris Principles, the Asian Human Rights Commission (AHRC) would now like to draw your attention to the NHRCK’s subordination to the ruling administration under the chair of an individual with no human rights background.

Our earlier communication of July 31, 2009 documented the attempts made by South Korea’s new government to attack the independence of the NHRCK by the use of various external factors. Today, the NHRCK is facing threats to its independence and competence from internal elements. The AHRC is writing this letter that these trends can be thoroughly studied and shared with members of the ICC. Only then can proper discussion occur, followed by appropriate action, to assist other members who may face such situations in the future.

With the appointment of Mr Hyun Byung-chul as the new chairperson of the NHRCK, its independence is being eroded internally, as can be seen by the following.

First, Mr Hyun Byung-chul stated that the National Security Act should not be repealed, after he was criticized by so called ‘conservative’ groups for saying he would try hard to abolish the Act. The AHRC wishes to point out that many international human rights institutions have recommended the government to repeal or amend the Act, including the UN Human Rights Committee (concluding observations: CCPR/C/KOR/CO/3, CCPR/C/79/Add.114, CCPR/C/79/Add.6), Committee Against Torture (CAT/C/KOR/CO/2, A/52/44), Human Rights Committee (individual communications: CCPR/C/64/D/574/1994, CCPR/C/57/D/628/1995, CCPR/C/80/D/926/2000, CCPR/C/84/D/1119/2002) and the Special Rapporteur on freedom of opinion and expression (E/CN.4/1996/39/Add.1). In 2004, the NHRCK itself recommended that the government repeal the National Security Act.

Such a recommendation is in accordance to section 3 of the Paris Principles, which points out that a national institution shall have responsibilities to “(b) promote and ensure the harmonization of national legislation regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation”.

The chairperson’s recent remarks not to repeal an atrocious security act are therefore contrary to the function and intent of a national human rights commission. They suggest that there is no need to work in tandem with international human rights instruments to which the Republic of Korea is a party.

Second, Mr Hyun attended a hearing at the National Assembly on September 18, 2009 and testified that he agreed to the NHRCK staff reduction conducted by the ministry of public administration and security, despite this being currently under review by the Constitutional Court. He also said that legally, the NHRCK belonged to the administration, although he added “but I have yet to think more about it”.

This weak adjoiner does little to camouflage a serious attempt at nullifying the independence of the NHRCK. In addition, it is a complete contradiction to the Paris Principles, section 5 of which stipulates, “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 be subject to financial control which might affect its independence.”

The National Human Rights Commission Act itself clearly indicates that the NHRCK does not belong to any government institution and is independent from all administrative, legislative and judicial bodies with regard to performing its work.

Third, Mr Kim Ok-sin was appointed as the NHRCK’s secretary general despite the opposition of commission members due to his lack of human rights background. According to article 16(2) of the National Human Rights Commission Act, “the Secretary General shall be appointed by the President of the Republic of Korea on the recommendation of the Chairperson of the Commission after due deliberation of the Commission.” Mr Hyun simply ignored the majority of commission members who opposed his recommendation, and Mr Kim was appointed on October 5. Mr Kim is well known for a decision he took as a judge in 1999, convicting seven people under article 3 of the National Security Act.

Fourth, when the ministry of public administration and security requested a correction of one staff’s position after the restructuring of the NHRCK on August 12, 2009, Mr Hyun dismissed the staff member on October 6. This was done with no proper deliberation with commission members. Afterwards, three standing commission members requested an urgent meeting to be held regarding the staff dismissal, which Mr Hyun ignored. Previous practice regarding restructuring was that the NHRCK would submit a plan itself, which would be approved by the government.

The AHRC 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: “the independence and autonomy of NHRIs… is necessary for their compliance with international standards and their effectiveness at the national, regional and international levels”. Not only has the NHRCK failed to implement all international standards and principles regarding national human rights institutions, but it is aligning itself with the ruling administration.

From its constant observation, the AHRC firmly believes that the above findings are only the tip of the iceberg; many such incidents have not yet been revealed, while many more will follow. These can be intentional avoidance of making recommendations to the government, the government’s refusal to adopt recommendations, or its failure to effectively implement international human rights instruments. Any or all of these are likely unless the current manner of selection and appointment of new commission members is prevented.

The need to carefully study how the NHRCK’s independence has been eroded by both external and internal factors is thus crucial. The research should be used for the ICC to act in a timely and appropriate manner so that threats to the independence of national human rights institutions can be taken up for discussion at the initial stages. There is little room left for discussion and action once a national institution loses people’s confidence.

Finally, the AHRC wishes to add that this serious setback of the NHRCK’s independence is an indicator of the government’s growing oversight of the NHRCK’s recommendations, which can easily be followed by other public institutions in the country.

I look forward to hearing from you.

Yours sincerely,

Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong, Special Administrative Region of China

CC.
1. Dr. Heiner Bielefeldt, Chairperson, Sub-Committee on Accreditation, ICC of National Institutions for the Promotion and Protection of Human Rights
2. Ms. Katharina Rose, Interim Representative, ICC of National Institutions for the Promotion and Protection of Human Rights, Geneva
3. Mr. Lee Myung-Bak, President of South Korea
4. Ms. Margaret Sekaggaya, UN Special Rapporteur on human rights defenders
5. Mr. Kieren Fitzpatrick, Director, Secretariat, Asia-Pacific Forum of National Human Rights Institutions