Testing Teachers for Drugs and AIDS

By Benjamin Wagner

Unlike many other countries, the Republic of Korea accords non-citizens the proper level of respect and dignity at law. In report after report to United Nations bodies, Korea has consistently made clear that, ``The principle of respect for human rights and the principle of equality of individuals before the law, as enshrined in the Constitution, also applies to foreigners.''

As non-citizens living and working in Korea, we are fortunate to be under the protection of its Constitution and important Korean laws, such as the Labor Standards Act, the Act on Foreign Workers' Employment, the National Human Rights Commission Act, and the Basic Act on the Treatment of Foreigners Residing in Korea.

However, as non-citizens well understand from the histories of their respective countries, having good laws is one thing, making certain they are properly observed and enforced is another. When mistakes are made and abuses occur, challenges must be raised. This is the essence of the democratic process.

Working within this process, I recently filed a report with the National Human Rights Commission of Korea (NHRCK) on the discriminatory requirements for foreign English teachers residing in Korea. For over a year now, nearly 20,000 have been subjected to in-country HIV and drug testing even though no actual law exists enforcing this severe intrusion of our rights.

The rule of law demands that when a democratic government decides to impose a restriction on the fundamental rights of individuals, a law is required to do so. Further, when such a law is enacted, no essential rights or freedoms shall be violated. This principle is enshrined in Article 37(2) of the Constitution of Korea.

However, the Ministry of Justice freely admits that the E-2 visa requirements are not law. Instead, a ``policy memo,'' created without regard for the procedural steps that constitute necessary due process, has been put forward without the status of law as the basis for the requirements.

This unconstitutional maneuver amounts to nothing less than a sanctioning by the ministry of the exercise of arbitrary governance and unchecked discretion. Such a cavalier disregard of the Constitution and the essential principle of the rule of law should concern Korean citizens and anyone else living here.

Protecting Human Rights of Korean Children

Children in Korea face serious threats to their safety. In December 2008, the Ministry for Health, Welfare and Family Affairs warned that the average age of sex crime victims in Korea was only 14, with 32.7percent of victims under the age of 13. In the same month, the NHRCK surveyed student athletes and found that ``63.8 percent of respondents said that they'd experienced sexual violence'' and ``78.8 percent of student athletes experienced verbal and physical violence.''

Given these alarming statistics, it is clearly imperative that children, who are unable to protect themselves, are accorded special safeguards from anyone who is responsible for their care and education, regardless of whether they are nationals or not.

The idea that foreigners pose some kind of greater threat to children is misplaced, both from the perspective of nationalistic bias, as well as from the evidence. Similarly, it is wrong to think that foreigners will not care so much about students in their care because their ``blood'' is different. We must recognize that all of us in Korea care deeply about protecting the children living in this country.

When, in January 2008, a Korean teacher stripped a five-year-old female student naked and locked her outside of her school in the middle of winter; it was a foreign English teacher that came to the child's aid. Is it right to point to such foreign English teachers and claim, as the proposed Bill to amend the Immigration Control Act does, that ``they pose a threat to our society's public order and our people's health?''

While the discrimination non-citizens face in being singled out as a threat to Korean society without reasonable cause is of crucial importance and requires immediate remedy, the paramount issue facing Korean society is the discrimination suffered by children in Korea by not being accorded the highest standards of protection.

The basic message of my report to the NHRCK is a simple one: equal standards for teachers means greater protection for children in Korea. A standard of protection that applies equally to all teachers regardless of citizenship or immigration status will raise, not lower, the standard of protection of the human rights of children in the Republic of Korea.

If the government is truly interested in ``protecting children and young students`` as the policy memo states, why exclude Korean teachers from precautionary measures designed to protect these children?

Is it reasonable that many Korean teachers (particularly those teaching in private institutes) are not required to undergo criminal background checks? Is it reasonable for Korean teachers to be granted impunity for physically and sexually abusing their students, often even continuing in their positions as educators of children?

Those who abuse students must receive appropriate punishment, and those convicted of abuse must be barred from working with children again.

I accept criminal backgrounds checks for all those who work with children as reasonable and justified precautionary measures; and academic credential verification, I believe, should be implemented for individuals in all types of employment where such credentials are relevant qualifications.

As for HIV testing, everyone (citizen or non-citizen) should be encouraged to voluntarily receive HIV tests for their own protection and the protection of others.

However, I reject compulsory HIV tests for foreigners and forced deportation for those found positive for the same reasons that Judge Yu Seung-Jeong rejected them in his November 2008 Seoul High Court decision canceling the deportation order of a foreigner who tested positive for HIV.

With the wisdom and sound judgment that thankfully exists within the Korean judiciary, Judge Yu found that it is more in Korea's interest to detect and treat HIV/AIDS than simply to deport.

The policy memo requirements warn that foreigners found to have HIV ``will have their stay canceled and be deported.'' Has the government, and the citizens of Korea, considered what an enormous disincentive has been created for foreigners to have themselves regularly tested for HIV?

How many of the more than 700,000 long-term foreign residents in Korea (not required to be HIV tested under the policy memo) would consider having a voluntary in-country HIV test when a positive result means deportation, losing their jobs, and being separated from their families?

The government's deportation policy actually decreases the possibility of HIV detection and therefore increases the threat of spreading the disease within Korean society.

I also reject compulsory drug testing for foreign English teachers because, contrary to media hysteria, a drug problem does not exist among foreign English teachers in Korea. In the three years before the enforced drug tests, there was not a single arrest for the drugs that English teachers are currently tested for. As for those who argue that (despite the absence of arrests) drug tests should be implemented just to be on the safe side, you should be also be arguing for drug tests for Korean teachers, who also share a similar dearth of drug arrests.

Finally, I strongly support mandatory human rights education for all teachers of children (citizen and non-citizen) on the rights of children and abuse prevention. Children in Korea must also receive appropriate education on their human rights and be taught how to identify and report abuse when it happens. Children must know that safe and effective remedies exist for them to seek help. If the government is serious about preventing the abuse of children, then the first place to start is by educating everyone on abuse prevention, not by stigmatizing foreigners and violating the Constitution by implementing requirements without the status of law.

Benjamin Wagner is a professor of law at Kyunghee University Law School, a Center for International Human Rights research fellow, and a U.S. attorney (Hawaii State Bar). While Professor Wagner strongly supports foreign English teachers and other migrant workers in Korea, he is not a member or representative of ATEK. He can be reached at khu.lawschool@gmail.com