Section D, paragraph
7
1. The final sentence of
paragraph 7 reads:
"The Committee is concerned
that article 6 of the Constitution, according to which international
treaties ratified by the State party have the same effect as domestic
law, has been interpreted as implying that legislation enacted after
accession to the Covenant has status superior to that of Covenant
rights."
The Government of the
Republic of Korea would like to point out that article 6 of the
Constitution has never been interpreted in this way. Furthermore,
Korea has never enacted municipal law that has been in contradiction
to a ratified international treaty. Likewise, Korea will be committed
to its fulfilment of all applicable international agreements in
the future.
Section D, paragraph 15
2. Paragraph 15 states,
in part:
"The 'law-abidance oath'
imposed on some prisoners, as a condition for their release, should
be abolished."
This statement is factually
incorrect, because the law-abidance oath is not a condition for
the release of prisoners. During the Committee's review on 22 October
1999, it was clearly noted to the Committee that the oath is not
a prerequisite for release, but is to be used as a reference. In
the special amnesty of 15 August 1999, for example, 49 National
Security Law offenders were released, even though they refused to
sign the oath.
Section D, paragraph
16
3. The Committee requested
that the Government provide full details on the system and actual practice
of judicial appointments. The Government wishes to submit information
on the judicial appointment system as follows:
(Term of office, appointment
and age limit of judges)
4. Article 104 of the Constitution
stipulates:
1. The Chief Justice of
the Supreme Court shall be appointed by the President with the consent
of the National Assembly.
2. The Supreme Court
Justices shall be appointed by the President on the recommendation
of the Chief Justice and with the consent of the National Assembly.
3. Judges other than
the Chief Justice and the Supreme Court Justices shall be appointed
by the Chief Justice with the consent of the Conference of Supreme
Court Justices.
5. Article 105 of the Constitution
stipulates:
1. The term of office
of the Chief Justice shall be six years and he shall not be reappointed.
2. The term of office
of the Supreme Court Justices shall be six years and they may be
reappointed as prescribed by the Act.
3. The term of office
of judges other than the Chief Justice and the Supreme Court Justices
shall be 10 years, and they may be reappointed in accordance with
the provisions of law.
4. The retirement age
of judges shall be determined by law.
6. Article 45 of the Court
Organization Act stipulates:
1. The Chief Justice of
the Supreme Court shall be appointed for a six-year term of office,
and shall not be reappointed.
2. The Supreme Court
Justices shall be appointed for a six-year term of office, and the
term may be renewed.
3. Judges other than
the Chief Justice and the Supreme Court Justices shall be appointed
for a 10-year term of office, and the term may be renewed.
4. The age limit for
the Chief Justice of the Supreme Court shall be 70 years of age,
the Supreme Court Justices, 65 years of age, and other judges, 63
years of age.
(Judicial reappointment
system)
7. The reappointment of
a judge is determined by reviewing whether the judge is still qualified
to perform his or her duties. In reviewing their reappointments, all
relevant elements are taken into consideration, including their job
competence, ability, personality and health. The judicial personnel
committee is also consulted in this regard.
8. The judicial reappointment
system does not affect the independence of judges since the purpose
of the system is to review the qualifications of judges, not to infringe
judicial independence.
9. Since 1990 there have
been three instances where judges failed to be reappointed.
Section D, paragraph
17
10. The first sentence of
paragraph 17 reads:
"The extensive use of wiretapping
raises serious questions of compliance by the State party with article
17 of the Covenant."
The term "extensive"
is not acceptable as it is unqualified and is not based on established
facts. It may be reiterated that Korean law expressly prohibits
the use of wiretapping unless warranted by a court, with rare exceptions
made only when circumstances prevent law enforcement officials from
obtaining the necessary warrant in due time. In these latter cases,
Korean law requires law enforcement agents to acquire a warrant
within 48 hours of the implementation of any such action.
Section D, paragraph 18
11. The third sentence of
paragraph 18 reads:
"The absolute restrictions
on the right to hold assemblies on main roads imposed by the State
party do not meet these standards."
12. The Government would point
out that the phrase "the absolute restrictions" is not factual. Pursuant
to article 12 of the Assembly and Demonstration Act, the head of the relevant
police authority may prohibit assemblies or demonstrations on some main
roads, if it is deemed necessary for the smooth flow of traffic. The intent
of this legislation is to accommodate the conflicting interests of public
order and the right to assemble. In practice, however, most of the applications
for assemblies or demonstrations on main roads are granted, on the condition
that traffic flow and order are maintained.
Section D, paragraph
19
13. The second sentence
of paragraph 19 reads:
"Nevertheless, the Committee
is concerned that the remaining restrictions on the right to freedom
of association of teachers and other public servants do not meet the
requirements of article 22, paragraph 2, of the Covenant."
Concerning the right
to freedom of association by teachers, the Government would refer
to the discussion between the State party and the Committee, in
which the Korean delegation made it clear that the freedom of association
for teachers is indeed permitted, as evidenced by the enactment
of the Act on the Establishment and Management of the Teachers'
Union on 1 July 1999.
14. With regard to the right
to freedom of association for public servants, the Government is pleased
to inform the Committee that the Act on the Establishment and Management
of the Public Servants' Work-place Association was enacted in February
1998. Furthermore, as of 31 December 1999, 76 work-place associations
were established. The Government will consider taking further gradual
measures to guarantee the freedom of association of public servants. It
should be noted that Korea still maintains its reservations on article
22 of the Covenant.
