NHRC Submits Written Opinion to National Assembly:
No Precensorship of the Internet, Reform Election-Related Laws
The National Human Rights Commission (NHRC) will submit a written opinion to the National Assembly on election-related laws (Act on the Election of Public Officials and the Prevention of Election Malpractice, Political Parties Act, Political Fund Act) currently up for amendment. In the opinion, the NHRC (1) opposes introduction of a system that requires verification of users’ real identities on media companies’ election-related Internet posting boards and (2) highlights areas where the election system should be improved (lowering the minimum voting age, increasing opportunities for non-incumbents to run for office, and secure representation from diverse social strata.)
The written opinion follows a June 2003 complaint petitioned by 124 potential candidates for the 2004 National Assembly elections calling for amendment of election-related laws, and a February 2004 civic groups’ demand that the NHRC voice its opinion on using the real-name system in Internet posting boards. The Commission is issuing the written opinion on authority of the NHRC Act, article 19.
The NHRC evaluated the existing laws and proposed election-related amendments currently on the table at the National Assembly against the standards set in the following documents: the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Korean Constitution and the NHRC Act. Concluding that revision of election-related laws should aim to secure and extend basic human rights, the NHRC analysis is summarized below.
1. The real-name system should not apply to Internet boards
►Article 82-6 of the proposed amendment to the Act on the Election of Public Officials and the Prevention of Election Malpractice (hereafter “Elections Law”) would introduce a real-name system for Internet chat rooms, to “prevent the posting and spread of false information or slander.”
►However, this proposed revision presupposes that all citizens posting their opinions on the elections are spreaders of false information or slander; thus, it clearly qualifies as precensorship, restricts freedom of Internet-based expression rooted in anonymity, inhibits public opinion formation, and contravenes the freedom of expression enshrined in article 19 of the UDHR and article 21 of the Korean Constitution.
►Further, the real-name system would be broadly applied without obtaining individuals’ consent before collecting their personal information; thus, the amendment could also violate privacy rights guaranteed in article 17 of the Constitution.
►It contravenes Korean Constitution article 37—which restricts the government from restricting essential rights—in the following ways:
- Even if the real-name system could deter election-related crimes and prevent slander and mudslinging, it cannot identify cases where persons with criminal intent use another person’s resident registration number
- The Election Oversight Committee already monitors the Internet for illegal election-related posts and takes measures on illegal posting cases. Current laws on posting and circulation of information allow punishment only after a violation has taken place. With today’s level of technological development, there should be efforts to trace a person’s identity in a way that does not violate privacy rights and only after a crime has been committed so as to minimize infringement of basic rights.
- The proposed real-name system amendment is not limited to specific media companies’ Internet sites; rather, it can be applied to any site that performs “media functions,” including civic groups’ Internet boards on the election. Ambiguous and broad, the draft amendment fails to clearly specify and delimit the scope of application despite its curtailment of rights.
- The Internet is not only a means for individuals to exercise freedom of expression, it also contributes to a democratic political system because it allows individuals to actively participate in discussions, in forming public opinion, and in democratic decision-making. Instead of subjecting the Internet to regulations and censorship, the state should actively support the Internet to expand basic rights.
►Thus, the bill to apply the real-name system to Internet boards should be withdrawn.
2. Lowering the minimum voting age
►Korean law allows only persons over age 20 the right to vote in presidential and National Assemblyperson elections. As of 2000, there were 799,214 Korean citizens of age 18 and 844,766 of age 19.
►For the following reasons, this age limit should be lowered
- First, it does not meet international standards
▪ The Convention on the Rights of the Child define “child” as those under age 18, and international human rights conventions regard those over 18 as “adults.”
▪ Some 100 countries—including the USA, Germany, Canada, France, Australia, UK, China, India, and the Philippines—set the minimum age at 18 for franchise rights
- Second, setting voting age at 20 conflicts with other Korean laws
▪ The Military Service Act obligates (male) citizens to enlist in the military from the age of 18.
▪ The law regulating appointment of public officials sets the eligibility age at 18; 18-year-olds can be appointed as public officials (grade 8 or 9) or government support staff (grade 7 or 8)
- Third, the minimum voting age was set at age 20 in 1960, and remained there despite the huge changes in Korean society over the past 40 years
- Fourth, the standard for eligibility to vote should be based on whether the person is capable of making political decisions and independently exercising the right to vote; thus, civil code definitions of “minor” do not necessarily have to dovetail with voting age
- Last, article 10 of the Constitution stipulates that the state is obligated to secure citizens’ basic rights
► As such, setting the minimum voting age at 20 falls under legislative discretionary authority, and even if the threshold is not unconstitutional, lowering the threshold to extend suffrage would further consolidate a basic democratic order and reaffirm basic human rights reflecting Korea’s economic, educational and cultural advances since 1960.
3. Removing obstacles to office for non-incumbents
► To prevent election irregularities, article 59 of the current Korean Elections Law comprehensively restricts campaigning for office to a specified time period. Article 111 allows incumbent National Assemblypersons to publicize their parliamentary activities in reports outside the timeframe of the election campaign period. Article 141 bars political party members from holding rallies only in the last 30 days before the vote.
► By requiring candidates for National Assembly to pay a 15 million won deposit, article 56 of the present Elections Law aims to prevent election “confusion” caused when a flood of candidates run for the same office.
► Articles 5 and 6-3 of the Political Fund Act allows candidates to designate a “”supporters’ association” in the related political party organization by city, county, or district, and supporters may raise up to 300 million won of funds in a non-election season, and up to 600 million won in election years.
► Article 21 of the UDHR and article 25 of the ICCPR recognizes all citizens’ equal right of access to public office, and Korean Constitution article 11 (right of equality), article 24 (franchise), article 25 (access to public office), article 41 (National Assembly elections) and article 67 (presidential elections) are clear in guaranteeing universal, equal, direct and secret ballot by citizens.
► However, the following aspects of existing regulations tilt the playing field in favor of incumbents, thereby restricting genuinely equal access to office.
- Incumbent and party-affiliated politicians can use the parliamentary activities report and political party rallies to canvass for votes outside the specified campaign period, while the law places a comprehensive ban on all others from publicity activities outside the campaigning period. Thus, non-incumbents have virtually no opportunities to introduce themselves and explain their platform to voters.
- Incumbent politicians can designate “supporters’ associations” far in advance of the actual election and use them to raise campaign funds whereas newcomers cannot.
- The requirement for candidates to pay a 15 million won deposit upfront erects formal financial barriers to office for those less economically well-off.
► The following measures toward realizing the Constitutionally-guaranteed right to franchise—meaningful suffrage and equal access to office—can contribute to a more vibrant democracy.
- Guarantee candidates adequate opportunity to introduce themselves and their platform to voters
- Guarantee voters the opportunity to gain adequate knowledge of candidates for informed decision-making
- Non-incumbent potential candidates should be allowed to designate “supporters’ associations” within a specified timeframe
- The amount of money that must be deposited to run for office should be minimized such that it does not constitute a formal barrier to candidacy
4. Representativeness
► Elections Law article 47 allows political parties to “recommend” candidates for National Assembly proportional representation seats as well as for City or Province Council proportional representation seats, and the Political Parties Act (PPA) article 31 specifies a gender ratio for such party-recommended candidates.
► According to PPA article 31, there should be over 30 women for every 100 male party-recommended candidates for National Assembly proportional representation seats, and over 50 women per 100 men for City or Province Council proportional representation seats. Further, the party’s list of candidates should be ordered such that there should be one female name per every 2 male names at the top of the list.
► Contentious issues in Korea relate to education, social welfare, unemployment and employment, peninsular reunification and peace, and social cohesion, and only with coordination and compromise among competing diverse interests that have different visions of how society should resolve these issues can we come to a resolution. Here, political parties play the important role of hammering out policy alternatives in the public interest out of competing discourses. The ability of parties to integrate conflicting interests into the sphere of formal politics and create consensus is the core of democracy and as such, parties and the National Assembly are obligated to represent the diverse interests of the citizens.
► The obligation to equal representation and diversity is based on the following.
- Article 21 of the UDHR states that the will of the people shall be the basis of the authority of government
- Articles 3 and 7 of the CEDAW recognize that women have the right to vote and be eligible for election on equal terms with men, and affirm that the responsibility for undertaking appropriate measures lies with the state
- Article 1 of the ICESCR states that all peoples have the right of self-determination, and by virtue of this right, have the right to freely determine their political status and freely pursue their economic, social and cultural development.
- Article 1 of the Korean Constitution states that the sovereignty of the Republic of Korea rests in the people and all state authority emanates from the people.
► Yet women—currently 51% of voters in Korea—amount to only 5.9% of the National Assembly. This imbalance means not only that women are systematically denied their right to equality, pursuit of happiness, suffrage, and access to public office, but further implies that the political parties and National Assembly of today are facing a crisis of representitiveness. The same goes for the disabled and other socially vulnerable strata.
► Thus, measures should be taken to secure representativeness in the process of nominating candidates for district seats and proportional representation seats, and could include using state treasury funds as subsidies to enable a more representative system to take root.
Reflecting such analysis, the Commission opinion will include the following points:
▲ Applying the real-name system to Internet posting boards on elections is unreasonable.
▲ The minimum voting age should be lowered to an appropriate level as decided through social consensus.
▲ Equal access to public office should be actively guaranteed through regulations decreasing barriers to non-incumbents and through legislative protections promoting equality.
▲ Regulations should be enacted to secure representativeness of diverse strata including women and the disabled.
