Having established “democratic reform of the state authorities” as a governing strategy, the current administration presents “reform of state authorities by the people and for the people” and “enhancement of the capacity of public security and protection of the socially-vulnerable” as its national policy agenda. In reforming the government authorities, it is necessary to look for the measures to enhance the function of human rights support and it is especially needed for the Ministry of Justice, a leading agency that prepares the United Nations’ national Universal Periodic Review and establishes the National Action Plans for the Promotion and Protection of Human Rights. In the meantime, the Ministry announced the direction of the administration of justice reform on October 19, 2017 and declared the paradigm shift concerning human rights related affairs.
Despite the fact hat the human right friendly system has been introduced to the administration of justice consistently, the Ministry of Justice still faces the demands of strengthening its human rights support which will keep pace with the social changes. In this context, this study will first examine the human rights support agency of the United States, the United Kingdom, Germany, France, and Japan respectively, and compare their task performance. Then, it will review the human rights-related policies and systems that the Ministry, in particular its Human Right Bureau, has established and promoted. Finally, it will provide suggestions to improve the Ministry’s performance of human right-related affairs.
First, in relation to the matter of human rights support, the legislative and the judicial branches of the U.S. have developed and set up the concept of civil rights, which refers to the citizens’ exercise of equal rights to vote, housing, employment, and safety. The U.S. Department of Justice established the Civil Rights Division which works exclusively for civil rights, based on the federal laws which describe the definition of civil rights and specific acts of infringing the rights. What is noticeable in policy aspect is that the Division actively investigates and indicts the criminal suspects by exercising its compulsory investigation right and indictment right, rather than establishing and adjusting the human rights policy. These efforts of investigation and indictment are supported by the Federal Bureau of Investigations. The U.S. Department of Justice defines any action that violates the civil rights as a serious federal crime and orders the FBI to investigate it, and takes the initiative in controling and stopping violation of civil rights by punishing the offenders.
The U.S.’s efforts to relieve and protect the civil rights of victims by convicting the civil rights offenders signify a great deal to us. Although there are the Human Right Bureau under the Ministry of Justice and the National Human Rights Commission of Korea, an independent civil institution, the efforts to rectify the human right violation and punish the criminals are probably lacking. As in the U.S. examples, if we prepare a clear definition of human rights and define the act of violating human rights by laws, and if we set up or expand the relevant agencies which can investigate the human rights violation cases of their own and indict the offenders, we would be able to protect the victims’ rights more actively and contribute to eliminating human rights violation, in the long run.
In the U.K., the Ministry of Justice takes charge of legal policies in criminal, civil, family, and administrative affairs, reform of courts, administrative tribunals, constitutional government, reform of criminal laws, case assessment, and sentence execution in order to protect the society through correction management, the citizens through the judicial system, and democracy and civil rights through reform of constitutional government. The strategic goal of the U.K. Ministry of Justice is correction and rehabilitation, modernization of judicial system, promotion of rule of law, and reform of the very Ministry. In particular, for the purpose of promoting rule of law, the Ministry aims for world-class legal service, defends the tradition of the common law and enhances its unique human right frame and system. The Ministry also tries to harmonize the domestic human rights laws and the European counterpart and introduce a new Bill of Rights in this regard, and hopes to participate in the EU’s reform of human rights system. The Equalities and Human Rights Commission, the U.K.’s national human rights institution aims for, first securing equality and human rights improvement, second, presenting authoritative evidence and policy, third, securing the effective and sustainable foundation for guaranteeing and exercising human rights, and fourth, a national human right institution that is professional, independent and competent. Moreover, the Commission establishes the policy cooperation network with the Ministry of Justice in the manner that it supports the Ministry’s human rights affairs and administration while it examines and evaluates domestic implementation status of the major international human rights conventions which the country has ratified and adopted.
In Germany, the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz) represents the federal government in the constitutional trial and the European Court of Justice in the areas of constitution, administrative law, international law, and European law (DG IV), and governs the human rights law affairs in the European and international law areas. In addition, the Ministry takes charge of the government report and implementation review-related agenda concerning the international human rights treaties which Germany has signed and ratified, and represents the federal government to the European Court of Human Rights, the UN Committee on the Elimination of Racial Discrimination, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Racial Discrimination Prevention Committee under the Council of Europe, and the European Union Agency for Fundamental Rights.
The German Human Right Agency takes charge of domestic implementation and of the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child. It also carries out the human rights policy-related researches and submits the annual review report the annual review report to the parliament concerning domestic human rights status and human rights-related institutions.
It is noticeable that the Federal Ministry of Justice and Consumer Protection is in charge of the policy addressing the wrongdoings committed by the socialist with regime with one of its affiliated agencies, Investigation Committee of the Past Affairs under the State Socialism. The Ministry’s consumer protection policy shows the direction of the prospective expansion policy for national human rights. It should be highlighted that the Ministry’s consumer protection policy focuses on the socioeconomic human rights protection within the finance of information society and internet.
In France, it is noticeable that the National Human Rights Advisory Committee (CNCDH) constituted the Human Rights Commission with non-governmental organizations and human rights experts and made it as an integrated agency for domestic human rights protection. The opinions from various civil experts converge at the CNCDH, which enabled more effective human rights protection and strengthened the institution as an authoritative and powerful institution. However, today where the scope and type of human rights-related policies are expanding, whether a single institution could collect the expert opinions from various fields and reflect them to the policy impartially should be reviewed continuously. Also what is meaningful is that the CNCDH is an Independent Administrative Authority (AAI, Autorité Administrative Indépendante) as a governmental and advisory agency that performs its human rights protection activities, unaffected by other governmental powers. It is meaningful in that the AAI aims for guaranteeing freedom and rights of the citizens in various legal and administrative systems, independently from administrative control. However, given that the set-up condition of AAI varies greatly and is usually based on the jurisprudence, the status, authority and responsibility of AAI is still unclear. For this reason, the French Parliament re-established the AAI institutions’ authority, legal status and responsibilities through the legislation passed on January 20, 2017. As Article 24 of this law stresses independence of the CNCDH again, the developments of its status and authority need to be examined consistently.
In Japan, the government, the council and civil organizations, carry out the multilateral human rights counseling or relief activities at the same time. Depending on t he a rea o f h uman r ights, i nstitutions s uch a s t he C hild C ounseling Center or the Labour Standards Supervisory Office, the Ministry of Health, Labor and Welfare’s Regional Labour Bureau Equal Employment Office and the Cabinet Office’s Men Women Joint Participation Planning Office become the main agent of certain activities; however, the government agency that deals with the general business related to human rights support is only the Ministry of Justice’s Human Rights Division. Also due to decentralization of power, most of the Division’s functions are delegated to the local agencies and it is characteristic that human rights commission system is operating. However, human rights committee members appointed by the Minister of Justice often lack independence, thus the commission is not acknowledged by the international communities as Japan’s domestic human rights agency. In addition, while the Correction Bureau and the Immigration Bureau belong to the Ministry of Justice, people raise a question whether the Ministry could respond properly to the violation of human rights by the government authorities in the detention facilities. Moreover, some point out the limitations of effective response to human rights violation as the Ministry’s Human Rights Division can only conduct temporary investigation. Based on this situation, a new bill to introduce the Human Rights Committee as a domestic human rights institution in Japan was presented to the parliament in 2002, and ever since a discussion to set up an independent human rights institution has continued.
In Korea, the Ministry of Justice is the main government agency that works for security and promotion of citizens’ human rights, and as such it carries out various agendas, including legal aid, Law Home Doctor that promotes the legal protection of the ordinary people, the Housing Lease Dispute Mediation Committee, human rights education, gender equality education for improving organizational culture of the Ministry, promotion of children’s human rights, enhancement of national human rights ability and establishment of national human rights data base, and the North Korea’s human rights archive-related matters. The fact that the budget for these human rights a gendas has increased i n each year f or t he l ast f ive years indicates the Ministry’s efforts to enhance its function of human rights support. However, despite the increasing amount of human rights activity budget, the proportion of the human rights budget in the Ministry of Justice's total budget has been at a standstill for the last five years, which requires improvement. The Ministry actively promotes the Law home Doctor project specifically, and has launched several new projects, such as the Housing Lease Dispute Mediation Committee, strengthening international human rights capacity and building the international human rights data base, and North Korea human rights archive. On the other hand, the budget for human rights education and promotion of children’s human rights-related project has rarely increased. For a balanced promotion of various sub-category projects of human rights activities, a more careful attention should be given to the proper allocation of budget within the target budget for human rights activities.
In regards to the human rights policy, as well as planning and implementing the relevant agenda of the Ministry of Justice, the method by which the Ministry’s human rights support could be more practical and systematically strong should be examined from the perspective of creating a productive cooperation with NGOs or civil groups in order to improve coordination and cooperation with the relevant government agencies and public bodies, as well as legitimacy and effectiveness of the human rights policies. The advancement and reform of the judicial human rights administration can be sought out by three ways, that is first, reform within the existing framework of the national human rights policy, second, reform through cooperation with the relevant human rights agencies and branches inside the administration, and third, reform through coordination among the branches of the Ministry. This study focuses on reform within the existing framework of the national human rights policy, and the ways in which the administration of justice can be improved.
The task of improving the Ministry’s human rights policy planning and implementation and the policy direction should consider, respectively, the government’s overall strategy and agenda, and should be created and evaluated within the basic framework of national human rights plan. The imminent task and goals of t he a dministration o f j ustice a nd h uman r ights i s t he g overnment’s active role in preparing the legal foundation of national human rights policy. This includes the Basic Human Rights Act, setting up a productive and cooperative relationship between the national human rights organizations and the government’s human rights branches in accordance with the expansion of the role and function of the National Human Rights Commission, improving the laws that prevent human rights violation concerning personal information in the information society, restoration of the past human rights violation, improving the laws for recidivism prevention, enforcing the human rights laws and encouraging the citizens’ participation in such practice for developing human rights culture, and building the civil society’s support system in the course of implementing the human rights policies. The 3rd National Action Plans for the Promotion and Protection of Human Rights aims at strategic selection and concentration focusing on the protection of human rights of the socially vulnerable and the minority, and institutional guarantee of human rights by constructing human rights infrastructure. Therefore, the basic direction of judicial human rights policy should head towards strategic concentration for the socially vulnerable and the minority’s human rights protection, establishment of the human rights infrastructure through cooperation with the civil and the international communities, and legislative improvement for institutional protection of human rights.
The Ministry of Justice can serve as a hub in strengthening the government agencies’ function of human rights protection and improvement within the framework of the National Action Plan, and in coordination and cooperation of national policy that promotes social program promoting the quality of life through advanced human rights protection. Therefore, through the cooperation with the National Human Rights Commission, the Ministry should build human rights protection infrastructure by reorganizing and improving the relevant laws and systems, strengthening the remedy for human rights violation and discrimination, liaison with other plans designed by the government and task assignment for monitoring and evaluation. In addition, it should play a role in creating human rights-friendly culture in the society and building a cooperative system between the public and the private sectors. Currently, the National Human Rights Policy Council is operating under the auspieces of minister of Justice to maintain the cooperative human rights policy system through coordination and discussion among the relevant government branches, and to set up and implement the National Action Plan effectively. Thus, the Ministry can be the foundation that leads the policy cooperation among the government agencies in establishing and implementing the human rights policies. The Ministry should enhance its leading role in implementing the human rights standards in both international and regional sectors. In doing so, especially, it should prepare a measure to exercise the agendas in consideration of domestic and international implementation of the UN’s Sustainable Development Goals, and connection between the domestic and the international human rights policies.
There are, in fact, some similarities between the functions of the National Human Rights Commission and the Human Rights Division under the Ministry in performing human rights protection. To eliminate the results of human rights violation promptly and to prevent reoccurrence of such wrongdoing, investigation and restoration of human rights violation should be carried out efficiently. However, in Korea, while such investigation and restoration task in the area of the administation of justice is conducted by both the National Human Rights Commission and the Human Rights Division of the Ministry, the rest of human rights violation investigation and restoration matters are dealt with by the National Human Rights Commission, exclusively. If the Ministry steps up to the tasks of investigation and recovery for human rights violation in the administration of justice, damage recovery and improvement of the system will gain the speed and efficiency. Moreover, as the National Human Rights Commission, an independent institution carries out investigation and restoration tasks at multiple levels, monitoring of human rights violation can be more intensive, which is another positive aspect. In sum, both institutions are complementary to each other, and as such their solid cooperation is required to improve the human rights level of Korea in the future.
In addition, for the Ministry of Justice to carry out its human rights support function properly, the cooperation not only among the relevant government agencies, such as the Ministry’s affiliated branches that work for human rights-related matters and the National Human Rights Commission, but also with the relevant human rights civil groups should be solidified. In other words, the Ministry is required to perform its human rights support function by building a network of various stakeholders from both the private and the public sectors surrounding the common value of human rights. Currently, the National Human Rights Policy Council under the Ministry contributes to building a cooperative relationship for the Ministry’s human rights agenda; h owever, t his i s a b ody t hat c onsists of a dministrative branches only, to which the approach of the experts in the private sector is limited or possible merely temporarily, resulting in a lack of ability to represent the citizens’ voice in this issue. Although the ‘National Human Rights Policy Citizen Watchdog Group’ was launched in 2013 with 25 experts from various fields including the academia NGOs monitored the enforcement status of the National Action Plan, and made suggestions on the issue, i t p erforms a e valuation t ask a t t he best w ith l imited r oles. Therefore, the Ministry needs to create a joint committee involving both the public and the private sectors, in which the outside experts can participate more actively to evaluate the human rights status in judicial administration and to review the human rights-related policies. I f t he M inistry o rganizes a j oint c ommittee o f t his s ort in the future and maintain a close cooperation with the committee, it is likely to eliminate any misunderstanding that the national human rights policy is government-led.
In the meantime, as the political and social environments change of home and abroad, the human rights of the North Korean escapees and the international refugees emerges as a new issue. This issue requires a fundamental policy in a mid to longterm perspective, rather than short-term and a symptomatic approach. The National Human Rights Commission, as well, suggested various agenda in these two areas in its 2017~2021 National Action Plans for the Promotion and Protection of Human Rights. First, concerning improvement of North Korean human rights, an effort should be made to systematically manage North Korea’s human rights records. The preservation and management of North Korean human rights records, which the Ministry will administer based on the legislation of North Korea Human Rights Act, is significant in that it prepares basic materials for liquidating the long-standing evil in the country, which serves as a prerequisite to realize transitional justice and social integration, in case of change in the North Korean regime and unification of North and South Korea. As for the improvement of refugees’ human rights, it is necessary to diagnose the problem in the current for determining refugee status and to find out a proper solution to enhance South Korea’s status as a leading human rights support country in refugee matter. The efforts to improve the procedure should be focused on the inital step in the procedure executed by refugee determination officers, in that materialization of refugee status determination is the essential foundation to improve refugees’ human rights.
In improving the Ministry of Justice’s primary mandales in human rights affairs, a d iscussion i s a dove all, n ecessary t o b etter p rotect t he r ights of the socially vulnerable. The socially vulnerable group includes women, children, foreigners and victims of crime. The improvement, the accused or suspect, in criminal cases, or prisoners could be included in the socially vulnerable category, but such inclusion will be dealt with further in the discussion of human rights improvement of judicial administration. The Ministry currently sets up the National Action Plan to strengthen the human rights of the socially vulnerable, and the National Human Rights Commission makes a recommendation regarding the Plan and evaluates the results. In the future, these tasks should be concentrated on preparing a comprehensive policy that includes not only the individual groups including women, children, foreigners, and crime victims, but also the overlapping targets i n t he s ub-category as the socially vulnerable. For instance, while enhancing the protection and supports for the crime victims, raising awareness of gender equality should be accompanied with p rotection a nd s upport f or f emale v ictims. F urther, in t he case that female victim is a foreigner, smooth communication and a more gender-sensitive policy that considers cultural and language differences should be sought out.
The 2017~2021 National Action Plans for the Promotion and Protection of Human Rights, presented key tasks for improvement of human rights in the administration of judice. They include improving of human rights of the accused or suspects in the criminal proceedings, protecting the convicts’ right to re-integrate with rehabilitation the society, minimizing the possible human rights violation by sex-drive medicinal treatment, and tracing and exposing personal information of sex offenders. To improve the human rights conditions in judicial administration, the Ministry should promote the right to counsel of the accused or suspect in criminal cases through introduction and practice of the ‘public defender programs’, reinforce the system that prevents human rights violations, and investigates and takes care of relief and recovery from the damages by actively investigating human rights abuses inside the detention and custody facilities and human rights violations. The former, requires a measure to increase the public defenders’ independence is required, and the latter needs expansion of manpower to survey current human rights practices, and preparation of manuals on investigation and recovery from human rights violations.
This report concentrates on possible measures to improve the judicial human rights administration within the framework of governing strategies, agenda and national human rights policies. The key points of the Ministry of Justice’s human rights supports are planning an integrated human rights policy, building a cooperative system with the relevant government agencies, and responding to the pending human rights issues in society.
The Ministry of Justice established “to regard the value of human rights as important, and to protect and support the most vulnerable” as one of its policy strategic goals, and its detailed practical plans include improving of human rights in judicial administration, reinforcing of protection and support to crime victims and of human rights of women and children, and of providing welfare and legal protection of the socially vulnerable. In sum, the human rights policy of the Ministry infends to achieve two main goals, (which are namely,) protecting the socially vulnerable group, such as women and children, and reinforcing welfare, of citizens such as support for crime victims, within a broader framework of overall improvement of human rights in judicial administration. The Ministry’s human rights improvement policy concerns not only emphasizing the value of human rights and protection and support for the socially vulnerable group, but also restoring public trust in the Ministry and the Public Prosecutors, realizing transparenty in society, securing public safety from crimes, and strategic goals to promote judicial policy in preparation of social unification and the future. Therefore, for integrated human right a planning function policy is foremost required. In addition, for enhancing the human rights protection system and the international human rights response system, building a human rights protection and violation response system and cooperation to manage such system is essential, and the Ministry’s role in enhancing that cooperation is the key in the judicial administration of a human-rights policy.
The pending and present issue in the Korean society can be said to be restoration of citizens’ human rights and reinvigoration of democracy. Accordingly, the new administrations in its national policy agenda and state goals, seems to emphasize reform for respecting human rights by the authorities that include the Ministry of Justice and the Public Prosecution, and for strengtheory the protection and support for the socially vulnerable such as women and children.