The so-called May 1980 Gwangju Uprising turned Gwangju City into a symbol of democracy in Korea as well as Asia. In response to the Korean army's massacring of its citizens that lasted for about a week, the citizens of Gwangju City organized civilian militias to fight back. Against the state machinery, the Gwangju citizens endured a long campaign with civil protest and armed rebellion. In June 1987, the South Korean government officially recognized the civil protest as the Gwangju Democratization Movement. With this acknowledgement, a strong awareness of civil and political rights among Koreans arose. But whether or not this led to full realization of human rights and increased awareness of all human rights is difficult to say.
Many cases of discrimination and other human rights violations continue to occur. While it is important to honor human rights in museums, they have to be realized in daily life now and in the future.
There is a distorted situation among regional political parties in South Korea that prevents the representation of various interests to occur. Gwangju City, for example, is dominated by one political party. While local government autonomy has been revived in earnest since 1995, local voters continue to cast their votes for candidates based on their membership in a particular political party instead of the individual candidate's policy commitment. This makes the citizens' votes unnecessary since local candidates are not even considered in their own precinct during elections.
Under the local ordinance system, each local community has the inherent power to enact its own ordinances suited to its own situation. In this case, the process of enacting local ordinances by local legislative bodies is combined with the citizen's voluntary initiative to propose ideas for such ordinances, guaranteeing public participation in the process. However, with a distorted local government system, local ordinances that help improve the lives of the citizens including those on human rights are few.
Enacting human rights ordinances at the local level is a relatively recent occurrence. Ordinances on human rights are allowed as long as they do not violate national laws and the Constitution of the Republic of Korea. Local governments can enact human rights ordinances, even without explicit national laws delegating local legislative power on the protection of the citizen's rights and the imposition of duties and penalties for their violation. These "autonomous" ordinances can even lead to the enactment of national laws on human rights.
The South Korean human rights movement on minority issues developed only after 1990. In the 1960s and 1970s, the successive military regimes could not differentiate the fight for democracy and the anti-dictatorship movement from the human rights movement. In 1990, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan raised the Korean comfort women issue that led to the prohibition of discrimination against minority groups and the establishment of a protection system against discrimination as provided in the Act on the Prohibition of Disability Discrimination and the Provision of Remedies that went into effect on 11 April 2007. In the late 1990s, persistent human rights campaigns led to the enactment of the National Human Rights Commission Act on 24 May 2001 that became the basis for the establishment of the independent National Human Rights Commission of Korea six months later. But the heated discussion on the draft Anti-Discrimination Act in mid-2000s, that raised the public consciousness on the importance of equal rights, led the Korean National Assembly to reject the bill in 2007. The inclusion of sexual orientation and other bases of discrimination created much public debate, with some groups opposing their inclusion in the bill.
Though unknown to other local governments, Gwangju City has been progressively enacting basic as well as comprehensive human rights ordinances. It has enacted a number of ordinances pertaining to the rights of persons with disabilities and the immigrants. A review of Gwangju City's human rights ordinances would show their rapid development since 2005 particularly regarding minorities. An example of such human rights ordinance is the Gwangju Metropolitan City for Democracy, Human Rights, and Peace Development Ordinance, enacted on 15 May 2007.
However, this ordinance was passed by the Gwangju legislative assembly to pursue urban development rather than promote or protect human rights, and without the participation of the members of the civil society. Until now, the Gwangju City government and its Mayor have not adopted a human rights plan to implement the ordinance.
It is difficult to assess this ordinance as a human-rights- legislation especially with its declaration of promoting a "city of peace." The City Mayor has been trying to issue a proclamation based on this ordinance that includes peace- loving philosophy, peace work, peaceful protests, and other ideas. An earlier proposal to include a provision in the ordinance on withdrawal of support for organizations involved in violent protests was opposed by the citizens on the ground that it meant tolerating violence, and therefore was not approved. A provision on cultivating a "culture of peaceful protest" was included instead.
NHRCK has been promoting the necessity of enacting appropriate local ordinances on human rights. It has been undertaking nationwide campaign to encourage local governments to enact the appropriate ordinances. At the local level, NHRCK's Gwangju Regional Office played a major role in organizing members of human rights groups, researchers, local government officials and local assembly members in Gwangju City to discuss the issue. A series of study meetings was started in August 2008 for this purpose. At the "2nd Workshop on the Human Rights Perspective of a Local Autonomous Ordinance," organized by the 2009 Gwangju International Peace Forum and NHRCK's Gwangju Regional Office, representatives of Japanese non-governmental organizations spoke about the experiences of local governments in Japan in enacting local ordinances on human rights, and exchanged experiences with their Korean counterparts.
The study meeting series discussed the 2007 local ordinance on human rights of Gwangju City, and proposed the enactment a new local ordinance on human rights. This idea was initially opposed by the members of the local assembly who originally sponsored the 2007 local ordinance. Those who wanted a new local ordinance thought that the existing local ordinance was a mere symbolic act of the city and did not contain concrete provisions to promote and protect human rights. Further discussions in the study meeting series led the members of the local assembly to agree to revise the existing local ordinance by incorporating new provisions, such as the following:
a. Change of the ordinance title into "Ordinance on the Promotion of Human Rights and the Development of a City of Democracy, Human Rights and Peace" to indicate the promotion of human rights and also a broader aim of having a city enjoying democracy, human rights and peace.
b. Defining human rights by adding an explicit mention of t he Universal Declaration of Human Rights along with the NHRCK law provision on rights guaranteed by the Constitution and the international human rights treaties ratified by Korea or protected under customary international law.
c. Defining "citizens" to include the people who come to work in Gwangju city and the foreign residents regardless of visa status. d. Providing for the respective responsibilities of the city mayor, educational superintendent, and the citizens on t he implementation of the ordinance.
e. Emphasizing that the citizens as not just people whose rights should be protected but also actors who promote human rights. f. Providing for t he formulation by the City Mayor of a basic plan to implement the ordinance, and the establishment of a Citizen's Committee as the consultative body for its implementation.
g. Providing that for the promotion of the human rights policies public hearings can be held with the participation of the citizens and experts.
Under the revised local ordinance, the Citizens' Committee shall be composed of not more than fifteen members. The City Mayor, expected to be designated as the Chairperson, shall appoint the other members. The members of the Citizens' Committee include human rights practitioners from the civil society.
The local legislative assembly of Gwangju City passed the revised local ordinance on 27 October 2009.
The revised local ordinance however has some limitations, compared to the draft ordinance developed in the series of study meetings. First, the revised ordinance does not have a preamble that would help guide the interpretation of its provisions. Second, it does not include the proposal to treat this ordinance as the basic policy on human rights that will guide the enactment of other ordinances for particular human rights issues.
Third, regarding human rights impact assessment system, the revised ordinance authorizes the City Mayor to ask an "independent specialized organization" to make the assessment if necessary. The proposed revision to the ordinance however provided that the Citizens' Committee assessed the impact of the implementation of the human rights plan.
This human rights impact assessment system provision in the revised ordinance is not effective since the City Mayor has an influence in assessing the correctness of the human rights policies that she/he (City Mayor) has implemented. The better system is to give the Citizens' Committee the authority to recommend the withdrawal of particular policies, including those of the City Mayor, that may adversely affect human rights.
The enactment of the revised Gwangju City human rights ordinance was unique. The ordinance resulted from the initiative of the Gwangju Regional Office of NHRCK in organizing various sectors (including the academics [faculty members of the Law School of Chonnam University], local human rights activists, local assembly members, and local government officials) to discuss human rights issues. The commitment and active role of the NHRCK as a mediator in legislating human rights ordinances are crucial.
Local autonomy has existed only for twenty years, and few citizens know this development. The revised Gwangju City human rights ordinance is a very significant contribution to the realization of local autonomy and the first comprehensive ordinance on human rights in the country. Despite its limitations, it is most important that it succeeds in creating the Citizen's Committee that will allow citizens participation in deliberating on the basic human rights plan of the city and in implementing it.
The local governments in Korea do not yet have specific offices for human rights policies. On the other hand, many local governments in Japan have human rights offices with stable supporting budget. The local human rights ordinances in Japan have strong influence in setting norms, while the local human rights ordinances in Korea are just beginning to develop. If the Gwangju City human rights ordinance is implemented well, it will certainly positively affect the movement for legislation of human rights ordinances. In addition, it may encourage new laws on human rights at the national level. Autonomous local ordinances such as the human rights ordinance should be enacted with citizens' participation. A citizens' committee created by such ordinance should have the character of representative democracy, function relatively independent from the local government, and have some expertise.
Jean Ahn is a Professor at the Chonnam National University Law School.
For further information please contact: Jean Ahn, Chonnam National University Law School, 300 Yongbong-dong, Gwangju- City 500-757 South Korea; ph (82-62) 530-2263 (office); fax (82-62) 530-2269; e-mail: jean7475@chonnam.ac.kr.
The original Korean language text of this article was translated into English language by Annie Lim and Koonae Park.