NHRC Issues Recommendation to the National Assembly Speaker and the Minister of Justice to Abolish the National Security Law
The National Human Rights Commission (NHRC) plenary committee met on August 23 and issued a recommendation to the Speaker of the National Assembly and the Korean Minister of Justice to abolish the National Security Law (hereafter, NSL).
I. Basis on which the NHRC Decision Rests
1. Fundamental liberties and rights enshrined in the Korean Constitution,
2. International Human Rights Covenants: South Korea acceded to the International Covenants on Civil and Political Rights (ICCPR), and on Economic, Social and Cultural Rights (ICESCR) on 10 July 1990
3. UN Recommendations to the South Korean government to phase out the NSL : 1992 UN Human Rights Committee recommendation after examining South Korea’s initial report under the ICCPR; 1995 recommendation issued by the Special Rapporteur for Freedom of Expression Abid Hussein; 1999 UN Human Rights Committee recommendation after reviewing the second report submitted by the South Korean government
II. The NHRC Decision
1. Historical Evidence
A. Enactment and amendment of the NSL
Closely modeled on the “Security Law (Chi-an Yuji Beob)” implemented during Japanese colonization of Korea, the NSL was first promulgated and implemented in December 1948?less than four months after the founding of the Republic of Korea?as a 6-article piece of legislation called Law #10. Over the last 56 years, the NSL has been revised a total of 7 times.
B. Relationship between the NSL and the Criminal Act
Article 12 (“laws, decrees and ordinances effective before enforcement of this act shall be abolished and replaced by this act”) of the addenda appended to the Criminal Act of that time included the NSL in a list of 15 laws?such as the Act on Punishment of Violent Acts and legislation for prevention and punishment of larceny?slated to be abolished and replaced with the new Criminal Act. With the exception of two laws on the list, all were abolished. The American Military Government Ordinance Number 19 was retained because there were no corresponding provisions in the new Criminal Act to replace it, and the NSL was kept, though not for reasons relating to the legal system, but rather because of the importance accorded to “security during wartime and the psychological effects upon the citizens.” This shows that the Criminal Act was adequate to covering the types of activities that had been dealt with in the NSL prior to the enactment of the Criminal Act.
C. Circumvention of democratic process in revising the NSL
At the 3rd revision of the NSL in 1958 (the revision suppressing freedom of the press by criminalizing activities that foment “confusion” in “the hearts and minds of the public”), police officers trained in the martial arts dragged opposition party lawmakers from the National Assembly hall, enabling the ruling party to pass the revision in just 3 minutes.
In 1980, the NSL was revised a 6th time to integrate provisions specifying punishment for violators of the Anti-Communism Act. The National Security Legislative Council?an organ with no democratic basis?spent less than five minutes to put the bill on the table, explain it, call for a vote and pass the revision into law.
When the NSL was revised a 7th time, in 1991, opposition lawmakers arguing for the abolition of the NSL in opposition to the ruling party’s proposed amendment were not even given the opportunity to participate in the deliberation and voting process. Rather, the Speaker of the National Assembly railroaded through the bill in 35 seconds without holding a vote and instead simply passing out written materials to replace the verbal report explaining the bill and summarizing the deliberations and revisions.
D. Abusive use of the NSL
i. With the addition of the clause requiring that offenders have intent to endanger national security to be found criminally culpable (the clause: “with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order”), it has been argued that the 7th revision of the NSL has eliminated the risk of broad interpretations of the law. However, a broad fact-finding survey (on the human rights impacts stemming from how the law is applied in practice) commissioned by the NHRC in 2003 suggests that article 7 (praise or incitement of anti-state organizations) of the NSL suggests that serious human rights violations from the abusive application of NSL article 7 remain; the statistics show that despite the 1991 revision, within the space of 10 years (1993.2.25 - 2003.2.24) the KIM Young Sam administration (a chairperson of civilian background) and the KIM Dae Jung administration (the self-styled “government of the people”) imprisoned 2,762 people (90.6%) based on article 7 of the NSL out of a total of 3,047 persons imprisoned under the NSL.
2. The Legal Dimension
A. NSL provisions defining “Anti-State Organizations”
Modern criminal law targets criminal acts, and criminal acts are defined as actions deemed to be a public wrong because of their injurious consequences. However, articles 2, 3, and 4 of the NSL run contrary to the principle that the criminal code should punish actual acts in contrast to punishing one’s inner thoughts. Under the NSL, lawful activity becomes unlawful for the sole reason that it relates to an “anti-state organization”; one can be held punishable for a broad range of offenses, from forming or associating with “an anti-state organization” to preparing or “plotting” to do something even if such plans have not yet materialized into any action. Because crimes under the NSL are punishable by imprisonment, stricter standards of clarity and specificity are called for; yet, the provisions defining what constitutes an “anti-state organization” remain ambiguous and thus run contrary to the “nullum crimen, nulla poena, sine lege” principle (the principle of legality: there can be no crime nor punishment unless it is in accordance with law that is certain and unambiguous). This lack of clarity and specificity leaves room for violation of human rights.
B. “Praising and Benefiting” an Anti-State Organization
Article 7 can be seen as contrary to human rights because: it gives rise to concerns that article 7 not only leads to over-sentencing, but also curtails essential constitutional guarantees for freedom of expression and conscience relating to freedom of the speech and of the press, intellectual freedom, and expression in the arts; the NSL transgresses upon limitations stipulated in article 37, clause 2 of the constitution owing to NSL provisions that are so deficient in clarity and specificity that it has been inappropriately applied in cases where neither national security nor defense of the basic democratic order were related; the letter of the law permits arbitrary enforcement of the law; and last, because the NSL contravenes the principle of legality.
C. Criminalizing “Non-Reporting” (Informing on One’s Peers)
By protecting the sphere of privacy and thought from government interference, the right to remain silent and freedom from self-incrimination stems from a respect for basic human dignity and worth. The Korean Constitutional Court has recognized this by declaring: “the court finds that freedom of conscience includes not only inner freedom from state interference in making ethical judgments such as deciding between right and wrong, but also encompasses the right to and freedom of silence where ethical decisions are concerned, that is, the right to be free of compulsion by state power to express one’s ethical judgments” (1 April 1991; Case 89 Heon-Ma 160). Thus, article 10 represents a serious violation of the freedom of conscience enshrined in our Constitution.
3. The Current Realities
A. Filling the loophole left by abolishing the NSL
i Replacement by the Criminal Act and related laws
Some have problematized a possible legal void that could be caused if the NSL were abolished, arguing that the concept of “anti-state organization” enabled crimes relating to North Korea to be punishable under the NSL and that the criminal code does not contain the “anti-state organization” concept. However, with regard to the courts’ ability to find criminal culpability relating to North Korea under the criminal code, legal precedence (Supreme Court rulings 4292 Hyeong-Sang 180, 71Do 1498, 82Do 3036, etc) show that the courts were able to rely on espionage provisions (article 98) of the Criminal Act and have treated North Korea as a “quasi-enemy country” in making such rulings. Thus, persons working for North Korea and persons who commit acts of espionage can be convicted under the existing Criminal Act under provisions on espionage, and persons thought to be “subverting the Constitution,” or “fomenting a rebellion aimed at the state” can be charged and punished under Criminal Act provisions covering treason (“insurrection” and “crimes concerning foreign aggression”). Inasmuch as the NSL duplicates measures already punishable under the existing criminal code, it is not necessary to have the NSL as a separate law.
ii. Interim Measures
Article 1, clause 3 of the Criminal Act stipulates that when amendments to laws obviate provisions for which persons are serving sentences, these persons are released from serving their sentences. Some have expressed concern that releasing such persons will throw the country into a state of chaos. However, such chaos can be avoided by simply inserting interim measures into the bill for abolishing the NSL. For example, the bill (of 6 December 2003) for abolishing the Social Protection Act contained “interim measures for those no longer covered by the law” in article 2 of the bill’s addendum.
B. Arguments relating to “Public Sentiment”
Some who argue that the NSL must persist as a part of our legal code argue that if the NSL were abolished, “we would see people [assembling at] Kwanghwamun intersection shouting, ‘Long live KIM Jong-il!’ and waving the North Korean flag” and be unable to punish that under any given law. However, if such an event were to materialize and such conduct be judged as serious, collective, and violent enough to threaten the basic order of society, then Criminal Act articles 115 (riot), 116 (failure to disperse), and other measures covering crimes injurious to the public peace could be used to prosecute such offenders, as well as the possibility of prosecution under the Assembly and Demonstration Act, the Road Traffic Act, and the Punishment of Minor Offenses Act.
C. Coping with the Changing Times
On 18 September 1991, South and North Korea were simultaneously admitted into the UN. According to article 4 of the UN Charter, UN member countries must fulfill certain pre-conditions for admission, including recognition of that nation as a sovereign state under international law, as well being “able and willing” to carry out UN obligations.
Even without such international standards, a look at domestic changes reflect a similar reality. From the “North-South Joint Communique of July 4, 1972,” where North and South Korea agreed to seeking “a great national unity as one people” through peaceful means by “transcending differences in ideas, ideologies, and systems,” to July 2004, a point when over 440 high-level inter-Korean talks on politics, economic relations, military concerns and social concerns have transpired, we have traversed great changes in inter-Korea relations. In particular, we should note that in the inter-Korean summit of 15 June 2000, effectively, both heads of state mutually acknowledged one another.
Further, the status of North Korea in South Korean law is contradictory and evaluated by a double-standard since we are, in essence, recognizing North Korea as a negotiating partner in the effort toward peninsular reunification while at the same time, we define North Korea as an “anti-state organization” and “enemy.” The times have changed since the Korean peninsula was first divided into north and south and since the end of the Cold War. We must recognize this fact.
III. Conclusion
In light of the TFT study on the NSL, the results of the fact-finding survey, the public hearing on the NSL, as well as the historical, legal and real world dimensions discussed above, the NHRC came to the following conclusions.
First, the NSL?its repeated amendment as well as its and origins?presents a myriad of problems; after the enactment of the Criminal Law, the NSL has been repeatedly revised without building any national consensus on those revisions and in disregard for democratic process. As a law lacking in normative power, we find that it stands on shaky grounds and runs counter to human rights. Second, the NSL runs counter to the principle of “criminal law based on criminal acts” as well as to the principle of legality. Further, the NSL contains substantial room for infringing upon basic human dignity relating to the freedom of thought and conscience as well as the freedom of expression. Third, with regard to national security, provisions in the Criminal Act and other laws can serve as the basis for addressing our security concerns; that is to say, we can conclude that abolishment of the NSL would not leave any significant security void. If and when we find that these existing laws are inadequate, we can amend or supplement the existing provisions in the criminal code. Last, as a member of the international community, there is a need to be receptive to international public opinion and decisions. As the times and context in which old laws were first enacted change, so too must we rise to meet the challenge and lay down a North Korea policy that reflects the realities of the day.
Revision of a few articles or the wording of the NSL will not resolve the problems explicated above; thus, we find that the times call for a complete abolishment of this law, which (1) has a long history of seriously infringing on human rights from its arbitrary use, (2) which contains room for profound violations of human rights in its very wording, and (3) which has been the subject of controversy for so long. As such, the NHRC recommends the abolition of the National Security Law.
