NHRC Decides to Voice Opposition in a Written Opinion
to the National Assembly
The National Human Rights Commission (NHRC) has decided to submit a written opinion to the National Assembly to voice NHRC opposition to enacting the Terrorism Prevention Bill, currently before the National Assembly and scheduled for deliberation and a vote.
Having compared the original bill and the revised bill, the NHRC confirmed that although many parts of the original bill were formally revised out or otherwise amended, the main thrust of the bill extends the powers of the National Intelligence Service (NIS) and retrogressively restricts citizens’ basic rights because the amended bill fails to revise out numerous clauses that undermine core freedoms and liberties. In compliance with articles 19: 1 and 25: 1 of the National Human Rights Commission Act (NHRCA), the NHRC shall lay before the Korean legislative body a formal written opinion.
Under the premise that new statutes relating to human rights should not contain provisions that violate those rights, the revised Terrorism Prevention Bill, when examined against criteria in the Korean Constitution and the NHRCA, represents retrogressive modification of parts of the original bill in the following ways.
1. Foremost are clauses (in the revised bill) that potentially undermine core freedoms and are contrary to the principle of legality (nulla poena sine lege), a principle stipulated in the Constitution:
First, article 15: clauses 3 and 4 of the original bill—which specified the scope of activities for mobilized military forces—were eliminated from article 12 of the revised bill; thus, the revised bill leaves unlimited possibilities for the scope of activities appropriate to mobilized military forces and thereby opens the door to the possibility of arbitrary law enforcement by mobilized military forces.
Second, whereas the original bill set relatively concrete definitions on “activities to counter terrorism”—originally defined as “every kind of activity undertaken to protect residents: prevention of terrorism domestically and internationally; suppression of terrorism; urgent measures to rescue persons at the scene of terrorist attacks”—the revised bill expands the scope of activities to “all activities undertaken to prevent and combat terrorism: regulation of persons suspected of being terrorists; supervising safety vis-à-vis risky items that could be used for terrorist purposes, and protecting facilities and equipment; securing the safety of international events and forcible repression to counter threats of terrorism,” thereby leaving open potential arbitrary enforcement of law.
Third, the intent behind the original bill, as stipulated in article 1 (purpose), was concrete and delimited in scope, specifying that the bill was “to prevent terrorism and speedily cope with terrorist attacks”; however, the purpose of the revised bill stipulates the intent as “to guarantee the state’s security from terrorism and to protect citizens’ lives and property.” This revision enlarges the scope such that application of the law is quite broad and thus, amplifies concerns over potential arbitrary law enforcement.
Fourth, although the international community has yet to come to consensus on how to specify the concept, “terrorism,” article 2 (definitions) of the revised bill quotes the criminal offense definitions of a convention that has not been ratified in South Korea (the “International Convention for the Suppression of Terrorist Bombings” in article 2: 1: 9 of the revised bill) and article 2: 3 of the revised bill draws its legal wording from the also not-ratified “International Convention for the Suppression of the Financing of Terrorism.” Skipping over legal ratification processes to directly incorporate parts of such conventions into domestic law, this revised bill raises concerns that it oversteps the principle of legality mandate and restricts the core liberties of Korean citizens.
Fifth, another source of concern is article 13 of the revised bill, which deals with the punishment of persons who spread false reports. It is alarming that there are no safeguards nor any protective measures in article 13, even when persons responsible for false reporting have done so through genuine mistakes, on the basis of a misunderstanding, or in the case where such persons have mental health problems.
2. Next are clauses (of the revised bill) that undermine core freedoms by failing to delimit the scope of application, and, by the absence of institutional checks and balances, fail to curb the powers of the Counter-Terrorism organ:
First, the revised bill eliminates article 3 (relation to other acts) of the original act. While on the surface, this appears to be a reform, the elimination of the clause that would have given priority to the Terrorism Prevention Act over the Comprehensive Defense Act (in the original bill) means that the new revised bill, in keeping with the Korean practice of giving priority to newer laws, would have priority over older laws in a general sense.
Second, article 3 of the revised bill (article 4 of the original bill) eliminates the section circumscribing decision-making powers (article 4 of the original bill) while leaving the deliberation function intact, thereby reducing the Counter-Terrorism Council, to be chaired by the prime minister, to a special consultative body. Relative to the original act, this revision eliminates institutional machinery that curbs the powers of the Anti-Terrorism Center Chair (the Director of the NIS) of the original bill.
Third, article 6 of the original bill would have created headquarters to handle terrorist incidents in different spheres, thereby granting the head of each related ministry or agency the power to coordinate and command (for example, if a terrorist incident occurred overseas, this would fall under the jurisdiction of the Ministry of Foreign Affairs and Trade). However, because the revised bill has eliminated this provision, there is concern that the each of the headquarters would become subordinate organs of the NIS.
Fourth, article 10: 2 of the original bill stipulated that when it becomes necessary for a body to coordinate and negotiate counter-terrorist measures during an “event of national importance,” a “Joint Countermeasures Group” could be set up and administered by related ministries and agencies. However, since article 7: 2 of the revised bill only stipulates that a countermeasure organ can be created and run with membership “composed of the related organs” with no mention of the principle of jointness, there are concerns that the related ministries and agencies could enter a “subordinate” instead of “cooperative” relationship relative to the NIS in such bodies.
Fifth, supplementary provision 2: 1 of the revised bill—which includes the NIS director in the “Act on Using and Reporting Information on Specific Financial Transactions”—is being interpreted as a sign that the NIS intends to extend its monopoly of information to include the spheres of finance and the economy.
3. It has already been pointed out that while the bill re-enforces discrimination against non-nationals, it does not contain the necessary provisions outlining procedural law when basic rights are restricted. The original bill delimits immigration (departure) measures as potentially applicable to only “non-nationals in Korean territory”; however, article 8 (immigration control of non-nationals) of the revised law has extended this scope even further to include controlling the entrance and departure of terrorist group members abroad. Although the bill would restrict basic freedoms, it does not contain measures to ensure conformity to procedural law, nor procedural law measures to assess refugees’ claims per Korea’s obligation under international law.
At the 57th (December 2002) and 58th (August 2003) Sessions of the UN General Assembly, once again, each country was urged: to stop increased incidence of human rights violations under the justification of counter-terrorism strategies; to adhere to their obligation to observe international human rights law, refugee protection law, and other humanitarian laws; to monitor, through the UN High Commissioner for Human Rights, the protection of human rights during the war on terrorism and to issue recommendations on related issues to governments and the UN even in the midst of the current high-tide of terrorism-awareness in the international community. In particular, Amnesty International has publicly released a statement pointing out that the Korean Terrorism Prevention Bill contains potential for increasing human rights violations and urging the Korean government to stop enactment of the bill into law.
On 20 February 2002, the NHRC had voiced its opposition to the Terrorism Prevention Bill proposed by the NIS on 28 November 2001. Today the NHRC announces that once again, after carefully considering the revised bill, it has decided to once again voice its opposition to the Terrorism Prevention Bill at the National Assembly.
The basis for current NHRC opposition to enactment is as follows: 1. terrorist prevention countermeasures are already possible within the current framework of Korean law and institution, so there is insufficient basis for promoting enactment of a new and separate law; 2. the bill forms the groundwork for potential violation of the Constitution, including in the mobilization of special military forces, and concern that this could lead to infringement of the people’s core freedoms; 3. the potential for increased restriction of basic rights and liberties in proportion to the strengthening of the powers of government organs; and 4. there remain many provisions that contravene the Korean Constitution and international human rights law.
