Professor Byung-Sun Oh

I. Introduction

In this paper I will describe some features of current human rights situations in the Republic of Korea ("South Korea"). It can be said that the people in South Korea do not fully enjoy the human rights recognized in the international covenants in spite of its success of economic development and its overwhelming superiority over its persistent rival state, North Korea. According to the recent study conducted by Charles Human on assessing country performance in the field of human rights, South Korea was classified as a country with a moderate human rights record in 1991 along with other Asian neighbors, for examples, Singapore and Thailand. Human's measurement of human rights instruments: Universal Declaration of Human Rights; International Covenant on Economics, Social and Cultural Rights; International Covenant on Civil and Political Rights. His questionnaire consists of several elements each of which representing an important aspect of human rights, namely freedom to [do], freedom from, freedom for/or rights to [do], legal rights, and personal rights.

These days in South Korea since the successful transition to civilian government from the military man-led regime in 1993, various human rights issues are one of hot agendas for national news media. Indeed there has been some fierce debate concerning the priority on reform in the matters of human rights and democracy. The concepts of human rights raises problems that are, on the one hand, practical and urgent, and on the other hand, theoretical and abstract. For human rights activists whose work is oriented towards immediate effect, the concepts connotes the prevention of political terrorism, torture and unjust imprisonment. The concepts of human rights also raises the theoretical issues about the requirements of legitimate government and the nature of good life. It is widely recognized that these two dimensions of human rights work exist and should, in principle, be integrated with one another. This integration, though difficult in practice, may be proceeded by building consensus among all, or most, relevant persons who concern the cause of human rights.

In order to build a consensus, in the beginning it may be taken as axiomatic that human rights are mainly important for the weak in any society. As B. Turner has pointed out, the importance of human rights is that they derive from, "Sociological perceptions about the frailty of the body and the precarious and risky character of social institutions.... [and furthermore] human rights are not necessarily tied to the nation state." ("Outline of the Theory of Human Rights", Sociology, 28:489-512, 1993).

II. Brief History of the Protection of Human Rights in Korea

1. Imbalance between Economic Development and Human Security

South Korea has achieved tremendous economic growth within a very short period of time. In fact, in terms of Gross National Product (GNP), South Korea will within not a many years join the top dozen economics in the world., and is currently pushing for membership to the Organization for Economic Cooperation and Development (OECD) within this year. During the course of such rapid economic growth, the Korea government has neglected human and social developments, causing human security and social welfare to lag far behind the level of economic development. Indeed South Korea has long been noted in the international community as a state which does not show great respect to the protection of human rights. The recent history of South Korea since the end of World War II is marked by illegal arrests and detentions, tortures, imprisonment through unfair trial, unexplained disappearances, and death with unknown causes.

The Constitution, which has been amended 9 times since its first promulgation in 1948, continues to proclaim that it guarantees human rights. However, the provisions of human rights in the Constitution and other laws have not been able to be fully actualized. Both the government and the courts have construed those provisions in such a way as to accommodate the diverse developmental needs of government policy, entailing the numerous infringements of human rights.

However, for a long period of time people of South Korea have struggled to secure human rights and effect democracy. The United Nations and other international organizations, citizens and governments of various countries have supported and extended encouragement to the Koreans in their efforts. When entered into 1990s, due to various endeavors Korean people have succeeded to establish a democratically elected civilian government, discarding a long-time authoritarian regime ruled by coup d'etat-led generals and their cronies. In light of this development, the South Korean government has maintained that democracy has been realized and that human rights violations caused from the abuse of governmental power do not occur any more.

In order to show the firm commitment to the protection of human rights domestically and internationally, in 1990 the South Korean government acceded to the International Covenant on Civil and Political Rights and the Optional Protocol to the International Covenant on the Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. Since its accession to the above human rights treaties, the South Korean government submitted initial reports on its human rights situation to the Human Rights Committee and the United Nations Committee on Economic, Social and Cultural Rights respectively. It may be said that the South Korean government's willingness to inform the international community about its human rights situation and its willingness to accept international discussion and criticism is regarded as an indicative of a great improvement of the human rights situation in Korea.

Though some remarkable progress in the protection of human rights in recent years, it is widely believed that the degree of actual implementation and enjoyment of the rights enumerated in the international covenants and the Constitution is not so much higher than before in substance. Still there are many impeding factors and difficulties in the full implementation of international covenants on human rights.

2. Impediments and Difficulties in the Protection of Human Rights

The most important impeding factor and difficulty in the implementation of the International Covenants in South Korea is the division of the country. Since the liberation from colonial domination by Japanese imperialism on August 15, 1948, Korea has been divided. Republic of Korea ("South Korea") was established in the south and the Democratic People's Republic of Korea ("North Korea") in the North, after a three year rule by the military governments of USA in the south and the USSR in the north, respectively. Each government has asserted itself as the only legitimate government of the whole Korean peninsula. Koreans on both sides have been brought to regard the government on the other side of the peninsula as an enemy. In the case of South Korea, the bitter experience of the Korean War (1950-1953) has left a legacy of fear, distrust and hostility in the minds of the people against communism and the North. anti-Communist and anti-North Korea ideology has been used to justify a series of military coup d'etat and authoritarian regimes. Under the name of the 'national security', oppressive laws which curtail or violate human rights have been enacted and any speech or activity critical of the government has been punished for being a criminal act due to its benefiting effect on North Korea.

Meanwhile the relationship between South and North Korea has recently shown a marked improvement following the trend of changes in the international arena. The government of South Korea has declared on several occasions that it would no longer be hostile to North Korea for they are partners in a mutual effort for peaceful unification. In September 1991, South and North Korea were admitted to the membership of the United Nations. On February 19, 1992, the very first official agreement between the South and North Korean governments was achieved. The "Agreement on Reconciliation, Non-aggression and Exchanges and Cooperation between the South and the North" ("South-North Agreement") was signed by the prime ministers and became effective through the ratification by the presidents of South and North Korean governments. On March 20, 1992, both governments jointly registered the South-North Agreement with the secretariat of the United Nations under Article 102 of the United Nations Charter. According to this South-North Agreement, South and North Korea pledge to exert joint efforts to achieve peaceful unification, to respect each other's political and social system, to not slander and vilify each other, and to not make armed aggression along the Military Demarcation Line specified in the Military Armistice Agreement of July 27, 1953, and agreement that was signed after the Korean War. The South-North Agreement qualifies as a 'treaty' under Article 2 and as an 'international agreement' under Article 3 of the Vienna Convention on the Law of Treaties. Therefore it falls under the category of 'international treaty' in accordance with Article 6 of the Constitution and thus has the same legal effect as that of the domestic laws of South Korea.

According to Article 3 of the Constitution of South Korea that states that "the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands," the northern part of Korea which is under the jurisdiction of North Korea is legally the territory of South Korea. Upon that basis, the National Security Law (enacted on December 31, 1980 as last amended on March 31, 1991) stipulates that North Korea is not an independent states but an "anti-State organization illegally organized for the purpose of assuming a title of the government or to disrupt the State." Then under the banner of punishing activities "benefiting an anti-State organization" The National Security Law restricts the freedom and rights of the people. It is questionable whether the laws of South Korea which prescribe North Korea, co-member state in the United Nations, as an 'anti-State organization' are consistent with the spirit of the United Nations Charter. Such laws appear to be inconsistent with the South-North Agreement. It is hotly debated whether these laws should be amended or not. However, South Korean government and courts tend to maintain this antiquated attitude toward North Korea.

As a consequence of the confrontation between two Koreas, there has been the excessive spending on defense and this trend would not cease in a foreseeable future. The government spends around 25 to 30 percent of its national budget on the military use. Undoubtedly, this is one of the key factors limiting the level of resources the government can allocate for human and social development programs.

Another scene of unbalanced development can be detected in the growth of history of South Korea. During the three decades of a rapid economic growth coupled with industrialization since 1960s, the transition from an agrarian society to an industrialized one cannot but rely on the cheap wages and the high productivity of laborers. In the process of industrialization, the mass of people who migrated out of rural areas became the urban poor, forming a large industrial reserve force. These people have been compelled to sacrifice themselves for the sake of national economic development. The trade union rights and the right to strike have been held in check by harsh labor laws and other laws. At times labor movements have been denounced by the government as pro-Communist activities or as acts sympathetic to North Korea. The government's dependence on police powers in suppressing the exercise of rights by laborers and low income urban people is one of the important causes of human rights infringements in South Korea.

Another impeding factor or difficulty in implementing the International Covenants is the weakness of the normative power of the Constitution. In theory, the Constitution is the supreme law of the state and sets the highest standard of the merit and validity of government measures and laws. However, since its first proclamation in 1948, the Constitution has been unable to preserve its dignity as the supreme law. As has been amended 9 times so far, all of these amendments were centered on the question of the method of electing the President, the lengths of the terms, and the structure of the state power. All the Constitutional amendments, except for those of 1960 and the present Constitution in 1987, were aimed at extending the term of office of the incumbent president or at providing ex post facto justifications of the military coup d'etat (1961 and 1980). Because of this history, the Constitution has come to be regarded as something that can be changed of the maintenance of power of the president or ruling party. It has been difficult for the government, the courts, and the people to recognize the Constitution as the supreme law that guarantees human rights and that can deny the legality of laws that infringe on the human rights that are guaranteed in it.

Three non-elected legislatures have played key roles in forming many oppressive laws in the present legal system. They are the military committee named the "Supreme council for National Reconstruction" instituted in May 1961 by General Park Chung-Hee following his military coup d'etat. the "Emergency State Council" instituted in 1971 after the National Assembly was dissolved to extend President Park's term of office, and the military committee named the "National Security Legislative Council" organized by General Chun Doo-Whan following his seizure of power through the coup d'etat in may 1980. Each Time , the 'legislature', composed if members nominated by the leaders of coup d'etat or the current president, enacted many laws that occupy a central place in the present system. Among these ' laws', many concern the structure of the state power and have been criticized as tools of infringement on human rights. Accordingly, the view that laws are enacted at the whim of the government for its own purposes has become widespread, and this one of the great obstacles in establishing the rule of law.

Meanwhile, the National Assembly, even though instituted through a general election, has been criticized for not being independent from the President and the administration. The ruling parties have been accustomed to passing laws without due legal procedures such as debates and voting when the bills find strong opposition in public opinion and /or in the opposition parties. For this reason, the parliament is criticized for passing the bills suggested by the administration using any available means instead of revising or supplementing the bills that contain the provisions the threaten that people's right.

III. Current Topical Issue in the Protection of Human Rights and Democracy

1. Trying State Criminals and Restoring Just Constitutional Order

Perhaps the most crucial agenda in the reform policy under the present government is the issue of trying state criminals and restoring just constitutional order. Like a number of other governments, the current civilian government launched in 1993 confronted the issue of bringing military violators of the Constitution and human rights to trial. Human rights organization and progressive political sectors urged the incumbent government to set up trials for ex-presidents and general and their one-time cronies national assemblymen. Under the leadership of President Kim Young Sam, the South Korean Government singled out among its many reform policy the political campaign of reestablishing national history aright for its emphasis on respect for constitutional order and individual human rights as the core of the democratic system. President Kim's position was that Korea could not achieve a full restoration of civil law without responding squarely to the military 's violation of the Constitution and human rights during the period of a series of coup d'etat from late 1979 to early 1981. From early December last tear criminal procedure started. But the trial met many difficulties and obstacles not only in factual points but also in legal points.

Chun Doo Hwan, ex-president and originally a paratroops general when he seized power in 1979, crushed pro-democracy demonstrators in Kwangju, and ruled with an iron fist until 1988. In May 1980, some hundreds of people in Kwangju were killed in a clash between the martial law troops of the military regime. During the period of cracking down the pro-democracy demonstrators there occurred brutal killings of many innocent people not only nearby passers-by, girl students but also farmers and children.

President Kim sought a special legislation to punish those responsible for the coup and deadly Kwangju crackdown. But ex-president Chun won't surrender without a; fight. He invoked the Constitution, Constitutionally guaranteed rights and other legal weapons which he once did not pay any respect and blatantly destroyed its order. "This is not aimed at revealing the truth," Chun declared after the prosecution called him for questioning about the events at 1979-1980. He was indicted with mutiny charges as a criminal who destroyed the constitutional order. President Kim was forced to fend off accusations that while Kim ordered the Kwangju probe the opposition party and political critics called for it to be carried out by an independent special prosecutors, not one whose job depends on the president. Nonetheless indictment was proceeded without much resistance and now two ex-presidents Chun and Roh are facing court proceedings.

However, in dealing with this trial one of important tasks is to establish the criteria for adjudicating responsibility for constitutional infringements and human rights violations. Several critical problems arose in the course of developing substantive criteria for adjudication responsibility. The most prominent of these problems is concerned with the principle of legality "nullum crimen nulla poena sine lege" which is the core of democratic system and for the protection of human rights.

2. Constitutionality of the 5.18 Special Law

Under the terms of the Korean penal code and military penal code, the crimes of rebellion and mutiny are respectively punishable with death penalty or life imprisonment. As in many countries the Korean code of criminal procedure and the penal code provide for a period of prescription beyond which persons may not be prosecuted or punished. The article 249 of the code of criminal procedure stipulates the prescription period by providing that prosecution of an offense shall be barred by the time limitation. The paragraph 1 of the article provides that prosecution shall be barred by time limitation after 15 years in the case of serious offense punishable by death penalty. And according to the Constitutional prohibition of ex post facto penal laws (Article 13, paragraph 1 of the Constitution) any new Criminal statute cannot have retroactive effect. Now the 5.18 Special Law which was enacted recently for prosecuting and punishing the crime of destroying constitutional; order and gross violation of human rights and humanity around 15 years ago is being under questioning whether the law would contravene the Constitution and the principle of criminal law. However, this issue was brought or the Constitution Court and the Court will deal with this issue of constitutionality of the 5.18 Special Law shortly. Now all Korean people are waiting this historic judgment which will be rendered by the Constitution Court.

3. Rectifying Past Unjust History by Punishing State Criminals

Although there are fierce attacks on the government drive to try the state criminals and the 5.18 Special Law from the camp of indicted persons and their lawyers overwhelming majority of people support this historic trial. Why majority of ordinary people want this trial and the punishing of ex-presidents. Criminal trials can provide a unique means by which to assert democratic values. There are at least five crucial consequences that can be derived from the indictments and the convictions of criminals courts.

First, special factual findings shrink the room for political speculation. It is more difficult for the military and other opponent groups to challenge judicial findings of fact than a general knowledge of what went on. Secondly, institutional disapproval of the previous official policies which resulted in the violation of human rights makes clear distinction between the civilian government and previous regime. In cases where transgressions were associated with the highest governmental spheres, the imposition of a criminal sentences against high-ranking perpetrators dilutes any suspicion of continuity. Thirdly, promotion of general confidence in a political arrangement that does not grant prerogatives or some class of citizens contrasts with military dictatorships under which military staff is subject to special treatment. Fourthly, restoring the universality of a democratic arrangement returns citizens to full membership in society. Criminal indictments and convictions erase the distinctions between those who had control over other persons lives and those whose existence was at their mercy. Fifthly, the trials also provide an opportunity for the military institution to adapt itself or the democratic system.

It is obvious that in South Korea an effective human rights policy requires more than punishment of state criminals. The goal of protection citizens demands a broader policy, which must include the positive policy of enhancing the quality of life of the people. However, at this stage in Korea the measure of rectifying past unjust history by punishing state criminals seems to be a urgent task for improving the democratic system and bettering the quality of life of citizens.

IV. Concluding Remarks

The Korean government declared last year that it would pursue the policy of globalization (Segyehwa) as its new national development strategy. According to the government's account, the policy of globaliztaion aims at many kind of development goals to meet a superiority standard. Among them the strengthening of economic competitiveness in the world market is the first priority. To this economy-centered development policy there has arisen various criticisms particularly from the sectors of social welfare and cultural development. From this year, the government started to put equal stress on the enhancing of the quality of life of people. This shift of focus in the government policy to ensure the people of the better quality of life appears to be a promising sign for the protection of human rights. Since the protection of human rights for the people is a task of prime importance, there has arisen new movements for readjusting existing laws, practices and social institutions.

From last year the new movement for improving the quality of life and the human rights varied. Besides trying state criminals and reestablishing constitutional order aright several are notable. First, a new movement of empowering women has launched. The government established a new personnel recruitment policy by introducing a quota system for women who apply for entering into a government post. This affirmative treatment policy for women will be implemented from this year in the central government and this will have a tremendous impact on local governments and private business sectors. Secondly, from last year there appeared a second national association of trade unions which is prohibited and illegal from the government's viewpoint. However, the establishment of this de facto rival national association of trade unions seems to open the new era of allowing multiple trade unions. Thirdly, a new ruling on the National Security Law was rendered recently in a Pusan district court which interpreted the scope of the Law in a narrow and negative way. The accused was indicted on a charge of benefiting and advocating North Korea by communicating with North Korean people and publishing a material on socialist system. The court rejected the charge on the ground that it could not find any criminal intent of the accused in his simple activity of communicating a North Korean people and publishing a pro-North Korean book. That activity might be ruled illegal under the National Security Law if the court maintained its previous mode of interpreting the Law.

Though there are plenty of norms and principles on human rights and democracy and hopeful signs of development, skill lacking is their effective implementation through the establishment of appropriate mechanisms for the protection of human rights. A more great effort will be needed in monitoring and correcting human rights infringements on the parts of the human rights advocates and private civil rights organizations.