Friday, May 29, 2009

The Wagner Report.

Full Disclosure:
Benjamin Wagner read my summary of his report before I published it. There were a few points where I missed, or partially missed the point (as smart as I am, cough cough), and a few where he wanted me to be clear about the emphasis of the report.

Nhrck Report 2 Nhrck Report 2 popular gusts

Cover page: This article is available for educational purposes: so people can see what's in it. If you haven't read it, but you're interested in what's contained here, I recommend you DO read it. I'll try to break down the contents here, but there's no substitute for reading it on your own. If you want to reproduce this article, post it on your own site, or whatever, contact Ben Wagner. He owns it.

Part 1:
Section A: Page 2: Introduction to New Visa Policy
Table containing statistics on the number of E-2 Visa holders living in Korea for the years 2005-2008, by nation: increased from 12439 in 2005 to 19375 in 2008.

Section B: Page 3-5: New E-2 Visa Was Meant to Calm a Xenophobic Public
Introduces a policy memo introduced by the Ministry of Justice in 2007, describing changes "New Changes on the E2 teaching Visa Holders in Korea". The reason it gives for the policy memo is a social outcry over unqualified E2 teaching visa holders. It also cites Christopher Paul Neil, the child sex offender, and mentions drug use and fraudulent diplomas. The memo requires blood tests in Korea, and will not accept medical tests from outside Korea.

The report asserts that "the E-2 policy was an extra-legal (outside of the due process of law) and discriminatory crackdown designed to calm a xenophobic public"

While the claimed aim of the policy was to protect children, which is a legitimate aim (remember that phrase: it's important), in fact it was mostly a symbolic gesture meant to calm a public worried about dangerous foreign teachers. The public was worried because of irresponsible media reports, and the Christopher Paul Neil arrest took that undercurrent of fear and whipped it into a public panic.

First, within a week, the National Assembly introduced a bill to check E-2 visa holders, but that bill failed because the National Assembly got distracted with the BBK scandal. That same bill has been re-introduced with a new number: 3356, which was also the number I had to punch in to access my voicemail during my last year of university.

However, at the bill's failure, the E-2 visa regulations skipped out on the process of law, by sending out a "policy memo" that didn't have to pass the rigors or scrutiny of lawmakers.

Three stages of the E-2 check process are troublesome for people living in Korea, because if we live in Korea, we are protected by the Korean constitution.

A. Rounding up suspects (by requiring us to go to hospitals in order to stay in the country)

This violates our right to be presumed innocent until proven guilty, and discriminates against us because of our citizenship and immigration status.

B. Body searches (submitting to medical checks)

This violates our right to be presumed innocent, discriminates against us because of citizenship and immigration status, and violates our right to privacy (more on that right to privacy later).

C. Deportation of undesirables

Deportation of HIV positive teachers discriminates based on medical history. Korea has signed onto a number of international agreements that protect people from discrimination by medical history.

And all these requirements were implemented without the due process that is required to implement a law. They will each be explained in more detail later.

[Roboseyo here: though it's not said directly, these tests would be a violation of any foreigner's rights, E, F, whatever series. Robo out.]

Pages 5-8

While the policy breaks the rule of law -- that laws should be passed only by following the due process of Korean law, it also violates a number of international treaties against discrimination which Korea has signed.

A pertinent section of the "International Convention on Civil and Political Rights" (ICCPR- remember that) which Korea has joined, explains that a national law must be passed in order to place a limit on people's human rights. Governments ARE within their rights restrict the rights and freedoms of people, if it passes a few tests. A government that is part of this convention can't just kind of make up some stuff that sounds good, and start limiting people's freedoms however.

First of all, there must be a legitimate public aim. Second, there must be a process that clearly leads to that legitimate aim. The E-2 checks fail that test, and are deeply flawed. (The report lists the flaws on page 7-8, but explains them in more detail later, so I'll save it for then).

It concludes saying that the E-2 visa was never meant to protect children, but it was a show to pacify a panicked public, while violating E-2 visa holders' human rights.

Section C: Pages 9-13: Xenophobic Origins of the policy

traces the development of the "problematic foreigner" archetype, and how that meme developed, spurred on by irresponsible media coverage and reckless comments by people in positions of authority, leading to the spread of three stereotypes about foreign English teachers:
1. We're likely to be sexual predators
2. We're likely to be drug users
3. We're likely to have aids, and because of our promiscuity and drug use, are a high risk to spread it.

Section D: Pages 14-15: Lack of Data
Though public officials and the media like saying "some" "many" and such, the policy memo itself cites media coverage and Christopher Paul Neill, not statistics. In fact, though he's one of the reasons the checks were implemented, CPN would have passed the new checks: he had a clean criminal record, an authentic university degree, and to our knowledge, had no history of drug use or HIV.

Also, the E-2 visa policy validates the stereotypes that we have been fighting, by putting the government's stamp of approval on it.

Section E: Pages 15-19: Drug Crimes
In justifying the E-2 checks, government officials said that the foreigner drug problem has been worsening for some time, however, statistics do not bear that out.

Page 16 features a chart of foreign teacher drug arrests that shows two things:
1. In the three years before the new E-2 visa checks, there were NO foreign English Teacher arrests for the hard drugs which are tested.
2. While there were some marijuana arrests, statistically, the arrests amount to a mere 0.14% of the total foreign teacher population. It seems like the foreign drug problem is mostly in media comments, not reality.
3. While the chart does not seem to differentiate between E-2 visas and other visas, the fact remains that the number is not statistically significant enough to justify invasive testing.

(page 17-18) In a report, Korea named human rights education for law enforcement and media representation of foreigners as two of the NHRCK's tasks toward creating a discrimination free environment for minorities.

Wagner calls out the NHRCK for neither providing preventative education to, nor calling out public officials, law enforcement officers, and the like, for making comments that profile English teachers, and put in jeopardy our right to be seen as innocent until proven guilty (as is stated in The Convention on the Elimination of All Forms of Racial Discrimination - "CERD" [remember that acronym], a treaty which Korea has signed without reservations): We have the right not to be portrayed as criminals.

Section F: Page 19-23: Sex Crimes
Often, sex and drug crimes are connected in the stereotype of the English teacher. Wagner provides a table (page 20) demonstrating that the rate of sex crimes for foreigners is much lower than that for Koreans: 25.6 arrests per 100 000 people for foreigners from English speaking countries (including all types of visas - not just English teachers, but excluding the military), compared with 108 arrests per 100 000 Koreans. As for crimes against children, the policy memo mentioned one foreign sex criminal who did not do his crimes in Korea, and no other cases; just this year, there have been several cases of different kinds of sexual abuse by Korean teachers in Korea; page 22 reports more incidences of Korean teachers behaving badly, and contrasts the speedy action by Korean lawmakers for a foreign child-sex criminal with the lack of legislative action to protect Korean students from Korean teachers, and demonstrates that if Korea were serious about their justification for the E-2 checks "to protect children," then they would be trying harder to protect children from Korean teachers as well.

Section G: Page 23-30: HIV/AIDS This section is long, but a few important points:

1. You can't transmit HIV by teaching.
2. HIV awareness in South Korea is really low: people lack basic information about HIV safety and transmission, and that lack of knowledge plays into the fear of the foreign teacher as AIDS carrier.
3. This is more dangerous again, because by testing English teachers, the government is perpetuating the myth that HIV is a foreigner's disease, and therefore Koreans don't have to worry about it...this false sense of security could cause Koreans to be careless, and put them at MORE risk, it could also lead to Koreans not feeling the need to get tested, which leads to more unreported cases: unreported cases, (people who don't know they're positive,) are the greatest risk for spreading HIV and AIDS.
4. The policy of deporting HIV positive people also increases the risk of spreading HIV, because it discourages people from getting voluntarily tested: people who don't know they are infected are the greatest threat to spread HIV and AIDS, so the deportation policy increases the possibility of unreported cases.

It should be noted that 13000 people, citizen or foriegn, are estimated to be living in Korea with HIV/AIDS, most of whom don't realize they're infected. The foreign AIDS scare is distracting attention from the help THEY need, and it is adding to the stigmatization of HIV/AIDS which prevents people from getting tested.

Korea has actually been directly questioned by the UK about its E-2 visa policies, during a UN Human Rights Council periodic review, yet the NHRCK has not commented yet on this policy.

Section H: Pages 30-36: This is undermining Korea's otherwise good Human Rights record
Korea enacted the Basic Act on the Treatment of Foreigners Residing in Korea, which is a great document. Korea has been flashing that document around on the international arena to impress people, and show off how non-discriminatory and open a society they are (30-31). However, most foreigners living in Korea weren't even aware of this Basic Act in 2007 and 2008, when Korea was trumpeting it internationally. We DID know that we were being subjected to health, HIV and drug tests, as well as criminal background checks.

Those background checks were implemented without being examined in light of the basic act meant to protect us. That basic act requires, among other things, that laws regarding foreigners must be examined to make sure they're consistent with the basic act and with international non-discrimination treaties Korea has signed. The basic act also calls for cooperation and dialog with foreign communities when laws are under review, but E-2 teachers were not consulted, or their objections were ignored, when the visa checks were being implemented.

The E-2 policy memo (which has now been enacted as a regulation) flies in the face of international treaties which Korea has signed and enacted. Language like "a good many [foreigners] have previous convictions for drug and sexual crimes or carry infectious diseases" (actual text of the regulation's justification) does exactly the opposite: rather than moving Korea closer to being an open, non-discriminatory society where everyone's rights are protected, it takes profiling and stereotyping of foreigners, and validates it with lawmakers' approval: it is in fact a step towards government sanctioned xenophobia, rather than an open society.

It is not too late for Korea to reverse this troubling xenophobic trend (page 35); if Korea is proactive right now (possibly prompted by the NHRCK), Korea could return to its place at the forefront of anti-discrimination.

Part 2: Here's where it gets legal
Section A: Pages 37-41
Now, the ministry of justice, after already implementing the checks, has tried to justify them by saying that a sovereign nation has the right to decide who enters their country.

That's true, but when the checks were passed, 17000 foreign teachers had already been admitted to Korea, and were required to take the test as well. International law does not permit a country to retroactively apply entry requirements to foreigners already living in a country. In fact (footnote p. 38), the ICCPR which Korea signed and enacted, DOES have rules against discriminating, even against non-citizens who have not yet been admitted to a country.

(p. 39-40) While the Ministry of Justice requirements are explained as intended to prevent the entry of people who are a danger to public health (HIV carriers or drug addicts, for example), the E-2 visa checks fail to achieve this, because you have to take the health check in-country, and those found undesirable are deported. True entry requirements would require people to pass the checks before entering Korea.

The so-called "entry requirements" are not prohibiting the entry of undesirables: the way they are carried out makes it clear that these checks are a justification to round up people living in country, and search them in a way that violates their privacy and their right to be presumed innocent until proven guilty, and be deported if they do not pass muster.

[Benjamin notes that the point of this argument is NOT to create entry requirements, but to demonstrate that the Ministry of Justice's checks can't be justified as entry requirements, even by their own rules.]

Section B: Pages 41-44: Non-Citizens Have the Right to Equal Treatment
CERD, in its 2007 review, expressed concern about discrimination against foreigners in Korea. Korea has also identified discrimination against foreigners as a major concern. An anti-discrimination bill that would have provided more concrete means to limit discrimination in Korea failed to be enacted in December, 2007, but in its latest comments to the CERD, Korea has stated that anti-discrimination remains a priority, and Korea is working on introducing a new anti-discrimination bill that will do so. Until then, the Korean constitution has declared that non-citizens are entitled to the right of equality and non-discrimination.

Meanwhile, in the absence of a Korean anti-discrimination bill, some of the international agreements Korea has signed provide a framework to prevent discrimination. Korea signed the CERD without reservation -- that means that rather than just signing their name on it but adding a lot of "buts", they've signed it and said "We're applying this to the laws of our land" in such a way that the CERD CAN be used in court to challenge a discriminatory law, for example. This doesn't mean foreigners are necessarily entitled to EVERY right and privilege of Koreans: for example, being a non-citizen means I can't vote in Korean elections, or run for office, but other rights ARE protected by the CERD.

Section C: Pages 44-47: The E-2 Visa Violates Korean Labor Law
[Benjamin believes this is the strongest hard law argument in his report: there are precedents in Korean court that support this assertion, and precedents for labor law superseding immigration law, when it comes to workers' rights]

The labor standards act requires labor laws to treat foreign and citizen workers equally. However, given a foreigner applying for a teaching job, but who refuses the HIV test, and a Korean applying for a teaching job, who also refuses the HIV test, the E-2 checks would cause discrimination, because the Korean could still get the job, while the foreigner couldn't.

In terms of legal power, an act supersedes a policy memo, so the Labor Act has more authority than the E-2 checks memo, so the Labor act's rules against discrimination should cancel the discriminatory rules of a mere memo.

(p. 45-46)In fact, there is a precedent in Korean law that demonstrates that labor law enforces fair treatment for workers, and holds sway when an immigration law seems to contradict it: a Korean court ruled that an undocumented worker was still entitled to his retirement allowance (according to labor law) even though his immigration status violated immigration law. The labor act officially protects foreigners even from rules in the immigration act... how much more from a mere policy memo.

Section D: Pages 47-52: The International Agreements Are A Strong Enough Legal Basis to Prevent Discrimination in Korea
While Korea has the "National Human Rights Commission Act" and the "Basic Act on the Treatment of Foreigners Residing in Korea" in the books, these two acts have not been tested out in court thoroughly enough to provide a solid lawful framework to guarantee equality. However, they are certainly enough to demonstrate that non-discrimination is the law of the land in Korea, as per the international agreements Korea has joined. The CERD clearly states that acts on immigration control must not cancel rights guaranteed to foreigners by other acts.

Meanwhile, in international forums, Korea has been trumpeting these acts loudly...even inaccurately, saying that the NHRCK has the power to declare something a punishable crime, when it actually has no such power, but can only give non-binding recommendations.

(49-50) The way Korea has been advertising these acts makes them look good; there is the expectation, however, that in the international community, countries act in good faith, put their laws into practice consistently, and in ways that are consistent with the ways other countries enact similar laws.

Now this is important: Korea signed the CERD without reservation, and Korea chose to enact it in such a way that it IS Korean law. Korea chose to make the CERD domestic law when it signed onto it, and because of the way the international community expects its members to act consistently, and in good faith with the agreements, it is Korea's duty to examine national and local laws for consistency with the international agreements Korea has signed. The CERD should have the power to to rescind a descriminatory law, because the CERD IS the law of the land in Korea.

The second limitation on the NHRCK's power to speak out against discrimination is the vagueness of the language used to talk about discrimination: lawmakers have been frustrated with the term "unreasonable discrimination," asking for a clearer, more rigorous definition. The new definition they were given was "Discrimination without reasonable cause" which, frankly, is just as unclear. The NHRCK is currently working on creating a set of clearer standards for what discrimination, and reasonable cause actually is, specifically. Because of way countries attempt to apply the agreements they have signed in similar ways, it is reasonable for countries to take cues from the ways other countries have applied the same agreements.

In fact, Korea's "National Action Plan (NAP) for the Promotion and Protection of Human Rights" openly intends to take its cues from UN treaty monitoring bodies, and their recommendations, as it clarifies Korean human rights laws.

All this means...

Section E: Pages 52-58: The CERD Provides A Standard to Determine Discrimination
Basically, because Korea signed the CERD and enacted it, and fully applied it as national law. There are not too many countries in the world which have taken the CERD into domestic law as fully as Korea: the CERD is law in Korea. This means the CERD's statements about discrimination are applicable in Korean courts. It has been demonstrated that the E-2 policy was not meant to protect children, but to calm a panicked public (part 1 section B). By, to borrow a phrase, "Throwing E-2 Visa Holders under the bus" Korea meant to calm the public's fears -- using discrimination to calm xenophobic fears -- "blame the outsider" -- feels good, but it fails legally.

Despite a clearly discriminatory law like the E-2 visa checks, Korea has declared a desire to be an open, multicultural society but let's be clear about this:

The goal of this report is not just to take away protective measures, leaving children more vulnerable than ever before. Everyone living in this society, while it goes through the growing pains of becoming multicultural in practice, rather than just in rhetoric, wants children to be safe.

It has been said before, a legitimate aim can justify limiting people's human rights, and everyone on all sides would agree that protecting children is a legitimate aim. Special controls on teachers is a justified, because teachers have so much influence on kids. However, a LAW is required to impinge on teacher's rights (not just a policy memo that never passed the rigors of law). Also, that law would have to apply to ALL teachers who work with children to pass the anti-discrimination test, and if somebody feels discriminated against, the Ministry of Justice must provide a reasonable and objective cause for that discrimination. A reasonable and objective justification for the E-2 visa checks has not been provided by the Ministry of Justice.

[OK, F-series visa folks: hold onto your hats. Here it comes]
The first mention of F-series visa holders is here, on page 56, but it is in the same breath as Korean citizens, stating that E-2 checks discriminate between E-2 teachers and teachers of different immigration status and Korean citizens. It mentions that Korean public school teachers have to have criminal checks, but not Korean private academy teachers.

however, from the footnote: "This report does not advocate that HIV or drug tests should be required of any teachers. Teachers of children, however, should be required to submit criminal background checks of sufficient scrutiny and authenticity; and due diligence academic verification should be required of all teachers and professors."

Differentiated treatment must be justified reasonably and objectively, and the E-2 visa checks fail to provide a factual justification for the checks. It would require overwhelming statistical proof that E-2 teachers are a greater danger than F-series teachers or Korean teachers to justify different treatment for them, and that proof does not exist. Korean citizen teachers are no more or less a threat to children than E-2 visa holders. If the Korean government's aim with the E-2 visa checks was to "protect children," then it would follow that ALL those in close contact with children would need to be checked, Korean teachers and other visa holders as well as E-2 teachers.

[next F-visa mention: long footnote on page 58: while checking E-2 visas without checking F-visas IS discrimination according to visa status, it should be noted that F-visa holders DO have a reasonable and objectively justified right to their special visa status, and having their special visa status to help them stay close to their families or ethnic roots is a legitimate aim; however, when it comes to teaching kids, the case of David Nam, a Korean-American wanted for murder in America, is instructive: he was caught teaching English to kids in Korea. His case demonstrates that the E-2 visa check system fails to protect children. The argument made here defends the F-visa holder's right to live in Korea, regardless, but suggests that criminal checks could be justified for those wishing to teach children, but only if those same checks were ALSO applied to Korean citizens.]

Section F: Page 59-67: Establishing a Fair and Lawful System of Checks to Protect Children
As stated before, if rights are to be restricted, there must be 1. a legitimate aim, 2. a method that properly fits that aim, 3. how much the check restricts individual rights. Background checks and tests infringe on my right to privacy, and to be presumed innocent, but that must be measured against the legitimacy of the aim and the method used to achieve the government's aim of protecting children.

Academic and Criminal Checks:
Academic checks are not unduly burdensome on job applicants, and they are not a severe invasion of privacy, and they are applied to everyone applying for the same teaching jobs: they pass the balancing test.

Criminal checks, however, are deeply flawed: because Korean immigration often lacks the expertise to verify if the criminal check is valid, there are constant complaints of arbitrariness, ignorance, and unprofessionalism in the way Korean immigration has handled the checks. Different types of checks have different levels of diligence and scrutiny, but Korean immigration has made no distinction: everybody knows the system is full of loopholes, different countries are asked to submit checks of different levels of scrutiny, and there is no published list of which offenses will cause someone to fail the background test, which leaves it up to the judgement of the immigration official. Many immigration officials seem to lack the training and expertise to determine which offenses are and aren't enough to disqualify people.

Korea needs to be clear about the methods it will use to protect our confidential information, as well. Some countries are not comfortable sending background or health information to Korean immigration if Korean immigration has not clearly explained how it will protect that data. Korea also needs to find out how other countries want their citizens' data to be treated, and respect those expectations.

Drug Tests
In 1994, Japan tried to implement drug tests for foreigners, and those tests were ruled discriminatory. Then Japan tried to impose those same tests on ALL teachers, and they were ruled a violation of teachers' privacy.

The balance test fails for E-2 drug tests, because there have been drug arrests of Korean teachers as well as foreign teachers, so applying drug tests only to foreign teachers is clearly discriminatory.

Whether the government can impose drug testing on all teachers in Korea must be weighed by the balance test: is the violation of privacy justified by the aim and method of testing? Such decisions must be made through the due process of lawmaking, under the Korean constitution.

HIV Tests
The HIV test, whose only purpose is to find and deport HIV carriers, clearly fails because it discriminates by medical history. The only time a compulsory HIV test can pass the balance test is if the job I'm applying to presents a direct threat of infection, or if my condition makes me unable to do my job.

In 2003, a Hepatitis B test was proposed for government hiring practices. This test failed because it violated the rights of Hep-B carriers... but Korea's own disease monitoring body rates Hepatitis B as MORE contagious than HIV, so if the Hep-B test was unconstitutional, the HIV test is even MORE unconstitutional, insofar as HIV is LESS contagious than Hep-B.

Wagner recommends that the NHRCK release an official opinion that the HIV test is discrimination.

Part 3:
Conclusion and Recommendations
The NHRCK has the opportunity to change the discussion here from "Fear the Dangerous Foreign Teachers" to "How can we protect Korean children?" and should recommend a single, high standard of protection that applies to ALL teachers of children, no matter what immigration or citizenship they have.

To better protect children, NHRCK should also recommend that all teachers be given training and education on the human rights of children, in order to recognize and take steps to prevent child abuse. The NHRCK should also recommend that children be taught to recognize abuse, and know how to get help when they see or experience it. By insisting on a single, standard level of protection, Korea's children will be better protected than they are now by the arbitrary, discriminatory system currently in place.

Key Recommendations: (page 69)
NHRCK should...[Roboseyo's paraphrase:]
• Officially state that the E-2 visa policy and legislation is discrimination against non-citizens living in Korea.
• Recommend that the government apologize and open talks about how to make up for human rights violations that have already happened.
• Condemn the scapegoating, stereotyping and targeting of foreigners by politicians, officials, educators, the media, etc..
• Organize a conference on xenophobia and the rights of foreigners in Korea.
• Officially affirm foreign populations in Korea's right to form groups and associations aimed at protecting the human rights of their members.

To keep discussion about this in as few places as possible, please direct your comments and questiosn on this topic to page and comment board where it was first published, at popular gusts.

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