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South Korea: Statement of resignation from Mr. Nam-Young You

South Korea: Statement of resignation from Mr. Nam-Young YOU, former standing commissioner of NHRCK

Statement of Resignation

Mr. Nam-Young YOU
(Standing Commissioner of the National Human Rights Commission of Korea)

As of November 1, 2010, I hereby resign from the post of the Standing Commissioner of the National Human Rights Commission of Korea (NHRCK). First, I would like to give my sincere words of consolation, once again, to those who had to left the NHRCK due to the reduction of its organization in April 2009 and to give my thanks to staff members who are doing their best for the NHRCK at the moment.

As is clear from incidents including the candlelight vigil incident, MBC PD Note incident, "Minerva" incident, state organ' surveillance activities (illegal and secret surveillance of civilians, politicians, and the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression by the Defense Security Command, Prime Minister’s Office, and National Intelligence Service), and torture at the Yangcheon Police Station, there have been numerous cases where, since the instatement of the current administration, the South Korean government has unjustly exercised or abused government power. From among these, state organs' surveillance of figures including civilians was a remnant of the former authoritarian government and a representative issue that damages the essence of rule of law and violates fundamental human rights. This is not a simply isolated single incident; rather, this shows retreat of overall human rights situation in Korean society and its change for the worse. Rule of law, which is originally aimed at guaranteeing human rights, is something that the people demand against the state, not something that state power orders towards the people. Consequently, the key function of a national human rights institution lies in monitoring state power so as to protect and to promote human rights for people.

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Generally, national human rights institutions are destined to form a relationship of tension with any Government for the protection of human rights and at the same time, to cooperate with the Government in order to promote human rights. As is clear from South Korean state organs' surveillance activities and infringement on the freedom of expression, however, the NHRCK has failed to monitor the Government in terms of freedom and human rights. We can find some national human rights institutions in underdeveloped countries, which tend to be passive in monitoring state power, only focuses on cultural activities or touch on frivolous issues, not to be against state policies and thus failed to form a relationship of either tension or cooperation with the Government. They are usually called "alibi institutions," in the sense that they serve simply as formal institutions which pretend that there are no human rights violations. The shortcut to strengthen communication and in tegration in Korean society and to heighten the nation’s prestige lies in activating the NHRCK instead of turning it into an alibi institution.

In the decision of the Constitutional Court of Korea (CCK) pronounced on October 28, 2010 regarding adjudication on competence dispute between the NHRCK and the Korean government, it was confirmed that the Commission only based on weak legal grounds, and is regarded as a non-regular state organ that does not even have a power to make a constitutional lawsuit on competence dispute with other state agencies. Such a problem must be resolved through legislative means including the revision of the Constitution. However, as it stands now, the Commission has failed to obtain enough trust of the people to demand the strengthening of such a weak legal basis. This is because it fails properly to exercise even the authority granted by the current National Human Rights Commission of Korea Act (NHRCK Act). As a result, the NHRCK has continuously failed, externally, to play the role properly demanded by Korean society and, internally, failed to manage the NHRCK to play its appropriate role in promoting and protecting human rights.

Concerning this crippled operation of the NHRCK, I will mention some cases: (1) Chairperson, Mr. Hyun, made remarks in the National Assembly regarding the Commission's independence; (2) Chairperson unjustly rejected the Commissioners' demand for the convocation of the provisional Plenary Committee and the provisional Standing Committee stipulated in the NHRCK's managerial regulations; (3) the dismissal of a specially appointed division head was executed by the request from the Minister of Public Administration and Security; (4) Chair Hyun one-sidedly suspended meetings in the process of submitting an official statement of the Commission’s opinion on the case of Yongsan and a staff member of the NHRCK who had helped to draw up this statement resigned; (5) the personal opinion of Chair Hyun and a few Commissioners on an agenda which is still under discussion in the Plenary Committee were submitted, in the form of explanations and explanatory data, to the secretaries on th e Foreign Affairs, Trade, and Unification Committee in the National Assembly in February 2010 without the commissioners' resolution and pretended that it is the NHRCK's official position; (6) when five commissioners including three standing commissioners pointed out that the actions in (5) above were violations of the decisionmaking rules within the Commission and therefore could subject the chair and the commissioners involved to disciplinary measures, the commissioners in question in turn lodged a petition arguing that such criticism amounted to a violation of their personality rights, thus investigating the three standing commissioners as defendants, but did not take any measure regarding the violation of the decision-making rules by the chair himself and the relevant commissioners; and (7) the Plenary Committee resolved that Standing Commissioners could not submit bills to the Standing Committee. In my view, these are evidence to prove the crippled operation of the NHRCK .

This crippled operation reached their climax on October 25, 2010, when a draft amendment to the NHRCK's managerial regulations was submitted to the Committee in order to give Chair Hyun the authority single-handedly to present an agenda to the Plenary Committee without the resolution of the Standing Committee (consisting of the chair and three Standing Commissioners including two standing commissioners recommended by the ruling party and opposition parties, respectively, in the National Assembly). According to the current the managerial regulations, the Chairperson is allowed to decide which and when agendas will be presented to the Standing Committee or the Plenary Committee (the Secretariat of NHRCK has given up addressing pending human rights issues or delayed the issues for several months). The intention of this amendment is to allow the Chairperson and Commissioners to prevent the Standing Committee from making decisions that displease them (for example, its recommendati ons to correct the information and telecommunication deliberation system and the trade union registration system) and all of these are intended to strengthen the chair’s authority. If and when this reform bill is passed, the despotism of the chair, who directs the Secretariat, will be further strengthened, thus weakening the power of the Standing Committee, which was established to check and to balance the chair.

I have thus examined how far the Commission could go, how low it could fall since the inauguration of the current chair in July 2009. This situation stems, fundamentally, from the current Government's indifference to and contempt for human rights and, more closely, from the wrong appointment of some Commissioners, including the Chairperson, Mr. Hyun; although their qualifications are stipulated in Article 5 Clause 2 of the NHRCK Act ("professional knowledge of and experience with human rights matters"), this standard was ignored by the Government who have the power to appoint Commissioners. Because human rights are issues not of academic theories and legal techniques but of sensibility and praxis, such qualifications are crucial to the appointment of the commissioners of the NHRCK. Soon after my resignation, four commissioners are scheduled to be replaced. Whether, in this process, the Government will manage the appointment process in an open and transparent way, in accordance with the Paris Principles while adhering to the qualifications for the commissioners stipulated in Article 5 Clause 2 of the NHRCK Act will serve as an index to examine how much interest, if at all, the Government has in human rights.

As a standing commissioner of the NHRCK, I have endeavored, despite my poor ability, to guarantee that the Commission shall fully perform its functions and be operated as it should be. However, I had to see that my efforts finally ended up in the opposite direction I tried to go to when I had to see a draft amendment to the NHRCK's managerial regulations. I believe that the only thing I can do for the NHRCK is to resign from my post even though my term of office will expire in only 2 months. Finally, I would like to express my gratefulness to those who have helped me so much during my service on the Committee during the past 2 years and 10 months. Here ends my statement.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.

ENDS

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