Today, we all live in a society where diversity is one of the most protected values of all. With the sharp increase in the number of ways to express ourselves, people are becoming less hesitant to share their opinions and identities to the public. In the midst of this mounting tension in our society, the question of how we will cope with the ever-increasing diversity has been the central issue for the last decade or so. Most appropriately meeting the demands of the times, the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) issued a series of recommendations to the South Korean government on October 9th, including the urgent demand to legislate the comprehensive anti-discrimination law. Especially since it is not the first time that the UNCESCR delivered such a recommendation, the UN’s announcement seems to be the timeliest response to the state of affairs, and it would be the most anachronistic thing for the Korean government not to comply with this recommendation. Now it is about time that the government legislate the comprehensive anti-discrimination law.
    The most pressing reason why this legislation is so necessary in Korea is that unlike other advanced countries in the world, there is a lack of ground in our Constitution to protect all minority groups other than sex, religion, and social status. The only explicit provisions in our Constitution that protect the minorities against discrimination are, Article 11 (1): All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status, and Article 32 (4): Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages, and working conditions. Especially in comparison with the U.S. Constitution where the 14th Amendment mandates the “equal protection of the law” in the most comprehensive fashion possible, the Korean Constitution provision seems to be containing the narrowest version of protection against discrimination: the Korean Constitutional Court adopts a blanket “rational basis review” when reviewing the constitutionality of discriminations against all minorities other than sex, religion and social status. On the other hand, the 14th Amendment of the United States Constitution leaves much more room for further interpretation, and on the basis of such legal ground the United States Supreme Court adopts many levels of constitutional protection, such as strict scrutiny, immediate scrutiny, and rational basis review, depending on which minority group it is protecting. In this world where diversity is the most critical solution to enable social harmony and unity, we can definitely say that the minorities are being seriously under-protected in Korea.
    Another factor that contributes to the urgency of the legislation of the comprehensive anti-discrimination law is the advancement of global communication, especially that of the Internet. Thanks to the wide-spread usage of the Internet, it has become much easier for people to express hatred and bias, and this makes our generation obviously different from the times when one expression of hatred could not affect others as much. There is no constitutional ground – or any feasible means to begin with – to prohibit people from conceiving hatred toward other people or groups of people deep inside their mind; however, expressing or acting out the hatred is another issue. The problem is that in such a society where words spread out so fast, one’s opinion, once expressed, rapidly grows out of control and leads to serious chaos. The young generations are the ones that are most affected by such an online trend. This excessive black-and-white split between gender, regions, sexual orientation and what not tends to be worsened by the media and various advanced communication technologies like social networking services. This is another compelling reason why the comprehensive anti-discrimination law should be adopted and the government should start protecting minorities from such pervasive hatred.
    On the other side of the debate, the most prevailing concern against the adoption of comprehensive anti-discrimination law is that the legislation may blur the line between what to protect and what not to, and finally end up in unnecessary overprotection. Since the legislation seeks to expand the scope of protection against discrimination as comprehensively as possible, some are worried that the freedom of expression may be violated, and that this will lead to an ironic situation where the majority is swallowed up by the minority. They argue that there already exists a series of legislations that protects certain minority groups, such as the Disability Discrimination Act, and the Equal Employment Opportunity Act; if the laws allow more vague language and comprehensive terms to embrace all minority groups within the protection of the law, legal stability will be disrupted and the predictability of the law will be damaged. However, this is precisely the reason why we need the adoption of the comprehensive anti-discrimination law as soon as possible. In order to prevent such chaos that the opposing parties are so concerned about, there needs to be a clear guideline in the law that defines what should be protected and how it should be done. Legislation of the anti-discrimination law, if anything, will rather serve to clear the blurry line of what discrimination really means. And of course this is what the legislature should take the most care with when making the law.
    One thing that we should be aware of is that many questions will – and should – follow. Is the cultivation of mature civil awareness a prerequisite to legislation? Or, should the legal system be the one to guide the moral standard of the people? Does the civil consciousness reflect the law, or the other way around? However, even in the midst of all these questions, one thing is clear: Action is always better than inaction. Humanity is advancing with the dialectic process of thesis, antithesis and synthesis. In other words, in order to make a society step forward, active action is always needed. Simply ignoring the UNCESCR’s repeated recommendation will only leave us behind the times, and make us stuck in passive inaction and international isolation. Making a mistake is better than leaving the chaos as it is, for mistakes make further corrections possible. And here, our role as citizens is critical to the state of affairs; especially since there is no practical way to force the Korean government to legislate the recommendation of UNCESCR, our participation as citizens will be the key factor in the movement.