October 19- The NHRCK decided to submit an opinion on a case currently under consideration by the Constitutional Court (2008 Hunma 638) concerning an order issued by the Ministry of National Defense on July 22, 2008 to all military headquarters and subordinate units. The order “Countermeasure for the Interception of Subversive Publications in the Military” (hereinafter “the order in the case”) was issued with what has been referred to as a subversive publications list attached. The Constitutional Court is examining whether the order constitutes an interference in fundamental rights.
According to the Commission, the order in this case violates the principle of legality (principle that state actions restricting the rights or freedoms of individuals should be authorized by statute) and constitutes a potential interference in freedom of conscience, protected by Article 19 of the Constitution, and the freedom to receive and actively collect information from generally accessible sources, protected by Article 21 of the Constitution. Because the order in this case raises a significant concern for a potential violation of those rights, the Commission decided to submit its opinion that the Constitutional Court in reaching its judgement should take into consideration the above points and that a strict interpretation is needed.
The reasons for the NHRCK’s determination that the order in this case raises a concern for interference in the freedom of conscience and the right to know are as follows.
1. As the most fundamental human rights that human beings having reason and conscience may enjoy, the freedoms and rights associated with the type of books one may select and read, in terms of the domain of such freedoms and rights, make the essential requirements associated with one’s status as a human being take precedence over one’s status as a soldier in uniform.
The ban on ‘subversive publications’ contemplated by the order in this case is equivalent to the typical method of censorship of people’s thought by a pre-modern nation which is disappearing, while the awareness of the fundamental human rights of human beings is improving. The selection and reading of types of books should be protected more deeply since it is mostly a matter of inner freedom, unlike the case of actualizing or expressing the content included in that book.
2. As a measure without a legal basis, the potential for the order in this case to violate the principle of legality contained in Article 37(2) of the Constitution is significant.
The Ministry of National Defense claims that Article 47-2 of the Military Personnel Management Act provides the legal basis for the order in this case. However, Article 47-2 of the Military Personnel Management Act delegates the regulation of all conduct performed by a soldier to a Presidential Decree. Even though it comprehensively interprets related provisions organically and systematically, this kind of comprehensive delegation provision does not meet predictability of “what is banned and what is permitted by the provision” required by the Constitutional Court, and as such it is difficult to see whether it corresponds with the principle of prohibiting comprehensive delegations stipulated in Article 75 of Constitution. In addition, it does not conform with the general public’s sound common sense that related provisions should necessarily include what kind of books soldiers, living in barracks, should read and not read when there is no immediate connection with their job duties in the military or the security of military affairs.
It is hoped that the Constitutional Court will consider the opinion of the NHRCK and examine strictly whether the order in this case is unconstitutional.
