Principles before politics, please

O

n the surface, South Korea’s human rights commission still looks busy doing its work. Last March, it acted on an Iranian national’s complaint against a local bank. Two months later, it joined in the call for more awareness about LGBTQ rights during Pride Month.

The commission is bound to be busier as South Koreans find themselves with what the global civil society alliance CIVICUS describes as “narrowed” civil space. This is because, the alliance says, there now seems to be more limits on press freedom and on civic groups working on North Korea issues, as well as on unions.

Yet the National Human Rights Commission of Korea (NHRCK) may also have to put its own house in order. Indeed, the Commission has been trying to accomplish its tasks even though it constantly seems to be in a state of crisis. For some observers, that state comes whenever a conservative administration comes to power and poses challenges to the body’s independence.

For others, the problem lies squarely in a commissioner-selection system that is flawed – a problem that has again come into sharper focus as NHRCK waits for the official appointment of its next chairperson.

The term of NHRCK’s current head ends in September. By most indications, former Constitutional Court justice Ahn Chang-ho is set to be his successor. Civil society has raised several questions about all the five nominees – all lawyers – from whom President Yoon Suk-yeol is supposed to choose. But it is Ahn whom rights groups have the most issues with.

In a press conference last July 24, rights advocates singled him out for having anti-LGBTQ views, as well as for having expressed “many anti-human rights opinions” while he was still a justice, among other things.

Like other national human rights institutions (NHRIs) across the globe, the NHRCK was established and is funded by the state, yet is supposed to be an independent body. According to the Paris Principles, each NHRI should be “independent in law, membership, operations, policy, and control of resources.”

The NHRCK is among the 17 NHRIs in Asia that the Global Alliance of National Human Rights Institutions (GANHRI) has rated “A,” or “fully compliant with the Paris Principles.” But South Korean rights advocates themselves consider their country’s foremost rights body as having compromised independence, largely due to a process that does not encourage enough diversity among the body’s top officials or ensure that those who lead it believe in and are committed to its objectives.

In fact, just last November, the U.N. Human Rights Committee noted that South Korea lacks the necessary measures “to ensure a fully transparent and participatory procedure for the selection and appointment” of NHRCK commissioners.

Politicized process

The NHRCK is headed by a chairperson, and has three standing commissioners and seven non-standing commissioners. Each commissioner, including the chairperson, serves for three years, although a consecutive term is allowed for one time.

The President nominates the chairperson, one standing commissioner, and two non-standing commissioners. In the National Assembly, the ruling and opposition blocs elect one standing commissioner and one non-standing commissioner each (four in total); the Chief Justice nominates three non-standing commissioners. There is also a secretary general, selected by the chairperson, who oversees a total of 246 employees.

But this set-up means the President – who also gets to nominate three out of the seven members of the candidate recommendation committee – and the ruling party can secure a majority of NHRCK leadership, thereby creating an imbalance in its makeup.

And while the term of office and independence of the commissioners are supposed to be guaranteed by the NHRCK Act, there have been far too many instances in which the NHRCK seemed to go against its founding principles because of appointees putting personal or political interests first.

One of the NHRCK’s darkest periods even saw commissioners appointed by the administration of then President Lee Myung-bak calling for the deletion or change of contents unfavorable to the government in their reports to the United Nations.

This was in 2010, after the Commission had been hit by protest resignations of its chairperson and standing commissioners over the government’s decision to drastically reduce the size of the body, and law professor Hyun Byung-chul was chosen to head it. Employees of the NHRCK who were trying to push for more independence for NHRCK were either fired or blacklisted.

In 2011, disabled rights advocates staged a sit-in at the Commission, calling for Hyun’s resignation. One of the sit-in protesters passed away after developing pneumonia due to nights of being exposed to the winter cold at NHRCK’s headquarters, where power was switched off after midnight.

In a 2010 open letter to Hyun, an apparently frustrated former civil servant lamented how NHRCK had “become silent and turned its back even as a host of serious human rights issues erupted through all areas of society.”

But the former civil servant – whose last post in his nearly 20-year government career was at the Commission – wrote that this was because “(Hyun) did not intend to do anything that might go even slightly against the will of the Lee Myung-bak administration.”

The selection process for NHRCK commissioners was finally tweaked during the liberal administration of Moon Jae In. In 2018, the presidential office for the first time formed a candidate recommendation committee that included civil society.

Out of the committee’s seven members, three were recommended by civil society through NHRCK, three by the presidential office, and one by the Korean Bar Association.

Unfortunately, this has yet to be made into an official rule or part of a law. Neither the Supreme Court nor the National Assembly chose to follow President Moon’s lead as well. But even if a conservative party is now in power, the presidential office has kept civil society in the candidate recommendation committee.

The difference this time around is that civil society’s input hasn’t seemed to account for much. Otherwise, the likes of Lee Choong-sang and Kim Yong-won would not be current NHRCK commissioners.

Acts unbecoming

In July 2023, the Asian NGOs Network on National Human Rights Institutions (ANNI) felt compelled enough to write an open letter to the Commission regarding Lee’s “hatred” for LGBTQs and his “attempts to incorporate his sentiments into the Commission’s decisions.”

ANNI also said that Lee was violating the body’s independence by involving himself in complaints against government agencies, considering that he got his post through the recommendation of the ruling People’s Power Party.

More recently, no less than the U.N. special rapporteur on human rights defenders wrote to the Yoon administration to voice concerns about Kim’s request for the police to investigate the family of a young soldier who had been beaten to death. Kim had dismissed requests for an investigation into the incident; the family and rights advocates’ request for a meeting with Kim to clarify why he decided that way apparently prompted him to involve the police.

An editorial posted last July 18 by the online publication Hankyoreh noted, “This is hardly the only behavior by Kim that makes it impossible to believe he is an NHRCK commissioner. He has routinely made crude comments about the commission itself – which he described as ‘under leftist control’ – and human rights groups, which he has called ‘human rights peddlers.’”

Worse, he and Lee nearly neutralized and rendered useless one of the most important functions of the Commission: handling and acting on petitions from the public. Since it was established in 2001, NHRCK has processed petitions from citizens first through subcommittees of three members.

If there is no clear agreement among the members, the petition goes for final decision by the plenary, with all the 11 commissioners.

But Kim began dismissing petitions by putting them to a vote at the subcommittee level, and was able to convince Lee and four other commissioners to adopt the practice. They continued rejecting petitions this way even after the chairperson and other commissioners objected to this practice, with the presumed bases for the dismissals only their own whims or the wishes or personal views of those who put them in their commissioner seats.

But a recent court decision on one of the petitions they dismissed seems to be making Kim and company backtrack from the practice – at least for now. According to the court, NHRCK’s dismissal of a petition requesting protection for a weekly demonstration by former World War II ‘comfort women’ “violates the law (NHRCK Act), and even if it is not a violation of the law, it violates the principle of equal rights and protection of trust, as it is an unfavorable application of existing practices for no specific reason.”

For sure, there are other factors that can compromise the independence of a body like the NHRCK. In a speech she gave at Osaka, Japan last September, Heisoo Shin, chairperson of the Board of Directors of the Korea Center for U.N. Human Rights Policy, pointed out that until now, the Commission’s budget and personnel remain under the “tight control” of the Ministry of Economy and Finance and Ministry of the Interior and Safety, respectively.

Yet even threats of defunding and other pressures from sitting administrations would not hinder the functions of an NHRI made up of people committed to its mandate. For instance, in the Philippines, the Commission on Human Rights investigated and spoke out against the vicious anti-drug campaign of the then Duterte administration, which then had its legislative allies threaten to cut the body’s budget by 95 percent in 2017.

Prior to the Taliban’s 2021 takeover in Afghanistan, the Afghanistan Independent Human Rights Commission (AIHRC) reported on rights violations by state actors despite growing objections from local and national officials.

“The NHRCK is not a judicial organ,” Shin said in her speech in Osaka. “Only when it is perceived by the public as an independent institution can it function properly. Only when the NHRCK earns and enjoys the respect would its policy recommendations and decisions on complaints become authoritative, and the relevant stakeholders would respect and implement them.” ◉