The Asian Human Rights Commission (AHRC) wishes to congratulate you on your appointment as the Minister of Justice of South Korea last Friday, 29 February 2008. The AHRC welcomes your inauguration remarks in which you stressed the realisation of human dignity and human values by way of protecting human rights in the process of investigation. We also appreciate your further comment stressing the realisation of the rule of law in which no one feels polarisation in the administration of justice including the policy for foreigners and immigration management.
In this regard, the AHRC would like to kindly draw your attention to a case. The case has revealed that those who are not Korean nationals are not being treated equally before the law and are denied their fundamental rights, which are guaranteed by various international human rights laws to which South Korea is a state party.
The AHRC has earlier reported this case in several occasions with regards to the removal of right to trial by forcibly deporting migrant workers on 13 December 2007 by the Korea Immigration Service (KIS) under your Ministry. The people concerned are Mr. Khapung Kaji Man, Mr. Tek Bahadur Gurung, both Nepali nationals and Mr. Moniruzzaman Abul Basher M, a Bangladeshi. They all are representatives from a union composed of migrant workers.
We have received two replies from the KIS regarding this case dated on 7 January and 2 February 2008 respectively: “three foreigners were already repatriated to their origin countries on Dec 13, 2007 pursuant to the Korea Immigration law (article 46), which stipulates that the head of office or branch office may deport any foreigner who overstays in Korea. Those three foreigners had stayed for 10 years in Korea illegally before repatriation.” in its first reply and “we are sure that all people who live in Korea should keep laws regardless of their nationalities.” in the second reply.
The AHRC is of no opinion about the legal obligation that everyone has to abide by in a country where he or she stays. However, we express our deep concern regarding the denial of the right to trial and right to legal assistance, and right to equal before law by the Constitution due to the clash between the Criminal Procedure Act and the Immigration Act.
The migrant workers in South Korea have played a significant role in the economic development of the country. We hope that we will get your opinion on some of our concerns as shown below.
First, while recognizing that the three have overstayed in the country as the KIS pointed out the reason of their deportation, the AHRC suggest you to consider that they are the key figures in the MTU and have played a key role in the activities to protect and promote the rights of the migrant workers. All three were working as the president, vice-president and secretary-general of the MTU. The AHRC is of the opinion that their deportation is a blatant attack on the human rights defenders. Thereby there has contributed to enable the Korean government to deal with matters of migrants working in a peaceful manner.
Second, Mr. Khapung Kaji Man, president of the Seoul-Gyeonggi-Incheon Migrants Trade Union (MTU) is a complainant of a case pending at the Supreme Court (Case No. 2007DU4995). The MTU earlier won the case at the High Court (Case No. 2006NU6774) concerning the establishment of trade union for migrant workers. By their being forcibly deported, their right to trial is deprived either under the paragraph 1 of article 27 of the Constitution or the article 14 of the International Covenant on Civil and Political Rights (ICCPR), which the South Korea is a state party.
Third, as you are well aware that the deported had three month period to appeal to a court based on the article 20 of the Administration Procedure Act regarding the dismissal of their application for withdrawal of the forcible deportation order by Minister of Justice. However the KIS forcibly deported the three at around 3am on 13 December 2007 as soon as the decision paper of the dismissal was delivered to their legal representatives by fax at around 6pm on December 12. Please note that an official letter is normally delivered by administration post not by fax. It is alleged that that the KIS is trying to make an excuse to avoid its legal obligation.
Fourth, although the KIS had already started deportation process against the three at around 3am on December 13, it intentionally provided wrong information to their legal representatives at 5am and 6:20am saying that it would not deport them on that day. By intentionally giving false information to their legal representatives, the KIS thus permanently deprived the three migrant workers right to legal assistance before their deportation. The KISs act breaches the paragraph 4 of article 12 of the Constitution or the article 14, 3(d) of the ICCPR, which guarantees the right to legal assistance.
We wish to convey to you to have very anxious about this matter.
As far as the Immigration Act is concerned, none of processes are monitored by an independent judge from the court. Given the fact that the Immigration Act applies to those who are not Korean nationals, the process of arrest, protect (de facto detain) and deportation of a foreigner based on the Immigration Act does not collaborate with the Criminal Procedure Act and the Constitution. For example, the KIS arrest the migrant workers without getting a warrant from a court and also enter any private premise without warrant from a court. As you see in this case, due process by the Criminal Procedure Act and the Constitution is not applied for them. Thus, the right to trial, right to legal assistance and right to equal before the law can never be restored due to the deportation. Forcible deportation by ignoring their rights is seen as discrimination on the basis of being foreigners.
The AHRC also received information that the National Human Rights Commission of Korea (NHRCK) was undergoing an investigation to see the possible violations against the three. It is a normal practice that when a case is under the investigation by the NHRCK, the KIS will wait for the decision but in this case it did not do so.
It is further noted that the revision of the Immigration Act submitted by your Ministry will be come into force on March 22, 2008 but the revision has still the lack of due process to protect foreigners deprived of their liberty.
The Asian Human Rights Commission thus calls upon you:
a. To study this case carefully and find out the lack of due process to protect foreigners whose liberty is deprived of;
b. To establish a mechanism that the allegation of human rights abuses can be thoroughly monitored and examined;
c. To review the new law which provides “legal power” to the officials of the KIS to arrest and detain foreigners but does not provide specific articles on due process that meet with international norms and standards;
d. To guarantee everyone is equal before the law and take further steps to eliminate all elements interpreted as discrimination on the basis of being foreigners, and ;
e. To study more how to protect human rights defenders in these circumstances.
We welcome your comments on our concerns and look forward to hearing from you soon.
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong
CC
1. Mr. Kim Chang Seok, Director of Investigation & Enforcement Division, Korea Immigration Service, SOUTH KOREA
2. Mr. Ahn Kyong-Whan, Chairperson, National Human Rights Commission of Korea, SOUTH KOREA
3. Mr. J.A. Bustamante, Special Rapporteur on the Human Rights of Migrants, SWITZERLAND
4. Ms. Hina Jilani, Special Representative of the Secretary General for human rights defenders, SWITZERLAND
