National Human Rights Commission of Korea Independence in Jeopardy

The Presidential Transition Committee has proposed the placing of the National Human Rights Commission of Korea under the control of the executive branch. One of the arguments of the Transition Committee is that the Commission is in violation of the principle of separation of powers.

I will discuss this issue in my weekly column in the Korea Times. The column will appear in the Korea Times on Wednesday of next week.

The press release for the Commission, concerning this issue, appears below.

Result of the Emergency Plenary Committee (January 17, 2008)
The National Human Rights Commission of Korea (hereinafter the NHRCK) expresses serious concerns over the government functions and organization rearrangement plans (made public on January 16th) of the Presidential Transition Committee (hereinafter the Transition Committee) which include the change of the NHRCK’s independent status to the direct control of the Presidential office.
As well known, the NHRCK was established on November 25, 2001 as an independent body from the three powers of the Executive, the Legislative and the Judicial branches according to the National Human Rights Commission Act (hereinafter the Commission Act.) The Commission Act was enacted in compliance with the Principles relating to the Status of National Institutions for the Protection and Promotion of Human Rights (Paris Principles). Upon the enactment of the Commission Act, some government ministries insisted that the proposed human rights institution be placed under the aegis of the Executive. After two years of heated debates, however, the NHRCK began operating as an independent national organization. Article 3 of the Commission Act stipulates that the independence of the NHRCK is the result of the social consensus. This is a core feature of the NHRCK, which serves as an exemplary model that sets global standards for other states preparing for the establishment of their own human rights institutions.
The reasoning behind the transition committee’s plan is that the status of an independent commission might go against the Separation of Powers Principle. However, this explanation is based upon the Transition Committee’s misunderstanding of the spirit of the Constitution. The purpose of the Separation of Powers is to protect the rights of all citizens from the state. It was in this spirit that the NHRCK was established as an independent national organization through the legislative procedure of the National Assembly to fulfill the state’s duty to guarantee the human rights of individuals under Article 10 of the Constitution.
The Transition Committee’s interpretation that the Constitution is based on the separation of the three powers and that the NHRCK is in contradiction with the separation of powers is short-sighted. As societies develop, a variety of national organizations that cannot be explained by the traditional notion of the Separation of Powers among three branches have emerged. Such organizations make up what is called “Fourth Power” as best described by the independent regulatory commissions of the U.S., special prosecutors and the NHRCK of Korea.
For the past six years, the NHRCK has played a significant role in preventing and rectifying human rights violations by governmental agencies and recommending necessary human rights policies that were not being addressed by the government itself. If the NHRCK was a presidential body, it would have experienced significant limitations when dealing with human rights violations due to the objective stance of government organizations. Moreover, with a mandate other than the one provided by the Commission Act that calls for an independent body, the NHRCK’s recommendation on bills and presentation of opinions to the Constitutional Court and other judicial bodies would not have been nearly as effective or efficient.
Under the Constitution, the international human rights law, and the Commission Act, the duty of guaranteeing human rights should be respected as an important value regardless of transition of the ruling power. If the NHRCK becomes a presidential body, it will not be free from the political impacts that may inevitably invite retrogressions in the rights of individuals. This is exactly why the UN Office of the High Commissioner for Human Rights (OHCHR) and other international human rights agencies place a great emphasis on the independence of national human rights institutions around the world. This is also why the International Coordinating Committee (ICC) evaluates the level of the independence from the human rights institutions of states on a regular basis.
Although the government rearrangement plan of the Transition Committee is still a draft, the NHRCK is deeply concerned by the fact that the incoming administration has even considered changing the status of the NHRCK from independent to the control of the President. The independent status is an inviolable requirement that the NHRCK would never give up in order to operate its mandates granted by the Constitution and the Commission Act successfully.
Against this backdrop, the NHRCK urges the Transition Committee that it considers more seriously the demands of the international community, including the United Nations, on the status and roles of independent human rights institutions. Furthermore, the NHRCK sincerely hopes national human rights do not regress due to the misuse of governmental authority during the incoming administration’s term of office. Last but not least, hopefully, the importance of the NHRCK’s independent status will be recognized once again during the discussion process on changes in the Government Organization Law in the National Assembly.
January 17, 2008
National Human Rights Commission of Korea
The National Human Rights Commission of Korea was established in 2001, offering investigation and remedy services for Korean citizens and foreigners residing in Korea against human rights violations and discrimination. The Commission provides policy recommendations and remedial action against human rights infringements, collaborates with international human rights organizations and implements educational programs to improve the human rights culture.

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SeanHayes@ipglegal.com