Civil Liberties in South Korea 1: Amnesty International (and John Stuart Mill) on South Korea’s National Security Law



Beating up on North Korea for its human rights record is pretty easy, but fair is fair; today and in a second post on Friday, we take a look at a few unwelcome developments in the South.

First, Amnesty International has produced a scathing indictment of the Lee Myung Bak administration’s use of the National Security Law. The report should get the wide reading it deserves. The problem is not only the increase in use of the law by the LMB government, but the very law itself. The NSL should be scrapped altogether. It is beyond fixing. South Korea has legitimate domestic security concerns—including those emanating from the North. But plenty of other instruments exist for handling these threats, including the activities of North Korean agents or those engaged in violence or sabotage.

The NSL has a long and ugly history. A first irony is that the law—passed in 1948--was based on the Japanese Law for Maintenance of Public Security that had been a central tool of the imperial government. It became one of the key legal instruments that the Rhee, Park and Chun dictatorships used to harass, jail, torture and even execute the opposition; over 200 people were executed under the law prior to the transition to democracy in 1987. Two presidents—Kim Dae Jung and Kim Young Sam--were detained under the law. Unfortunately, Roh Moo Hyun failed in his effort to abolish the law in 2004 as a result of fierce conservative resistance. The courts have also played a less-than-helpful role, upholding the constitutionality of the law while sometimes mitigating, sometimes aggravating, the law’s more perverse effects.

A core finding of the AI brief are trends in the use of the law. According to the National Prosecutors’ Office, the number of new NSL cases went into decline under the Roh administration, falling from 231 in 2002 to 46 in 2008. Detentions under NSL charges dropped even more sharply from 131 in 2002 to 16 in 2008. Between 2008 and 2011, however, the number of new cases increased from 46 to 90. The number of detentions under NSL charges also doubled from 16 in 2008 to 32 in 2010 before registering a welcome decline to 19 in 2011.

AI categorizes the uses to which the NSL has been put in recent years—particularly the infamous Article 7 of the law reproduced below--and it is not pretty. The general claims are backed up by succinct summary of emblematic cases. In broad strokes:

  • The NSL has been used by South Korean authorities to undermine the freedom of association as well as expression. A fringe leftist group, the Socialist Workers League, was investigated under the NSL and AI shows how at least some lower courts had serious doubts about the case.
  • The law was used to discourage representations by civil society groups to international organizations, specifically with respect to the findings of the official investigation of the sinking of the Cheonan.
  • The NSL has also been used to curb academic debate on the study of North Korean issues; again, a fringe group, the Capitalism Research Society, as well as a bookseller were targeted. The law has resulted in the classification of over a thousand books as being out of bounds, with the necessary apparatus of a censoring institutions (the Democratic Ideology Institute, established in 1997 under an order of the Chief Prosecutor, and the Public Safety Affairs Institute of the Korea National Police University). Nor do those who have the NSL brief have a sense of humor; in an infamous case, a young satirist Park Jeong-geun got caught up in the NSL web. Two weeks ago, Park was sentenced to 10 months in prison for his posts; once the court realized that the posts were in fact satirical they had the magnanimity to suspend the sentence for two years. The case is not unusual; the AI brief shows that a number of groups and individuals who have been targeted under the law are on record as critics of North Korea.
  • Authorities are using the NSL to censor online debate on North Korea. In particular, an administrative body—the Korea Communications Standards Commission—has accreted the power to make judgments about whether any given website violates the law.
  • The NSL has been used against individuals such as Kim Eun-hye who traveled to North Korea during the Kim Dae-Jung and Roh Moo-hyun adminstrations, even though these individuals had official permission to do so.
  • To top it off, some of the information collected to prosecute NSL cases has subsequently been deemed unconstitutional by the Constitutional Court.

As we noted, however, the problem is not just the recent abuse of the law but the law itself. John Stuart Mill’s argument for freedom of opinion are worth reiterating, as they still constitute the most compelling rebuttal. Mill’s argument had two parts. The first is that the views of dissidents and minorities might be true; if so, they need to be articulated. But equally if not more important were Mill’s arguments with respect to claims that are false. If widely held opinions are not debated, then they run the risk of becoming "dead dogma." Censoring the expression of opinions that are false blocks the debate that shows—through reasoned argument—why such opinions are false. Both the state and public opinion—which was a central focus of Mill’s concern—deny a free citizenry access to the bad ideas that would be bested by better ones.

Mill may be criticized for his faith in reason, but that is the side of the angels. The fact that the South Korean public remains divided on the issue is completely irrelevant. The only political issue is whether the left—generally the targets of the law—have the political support or gumption to tackle it again, or whether Park Geun Hye and the conservatives will have to take on the task. But we just do not see any arguments for the NSL that trump Mill’s against it.

Article 7 of the NSL

(1) “Any person who praises, incites or propagates the activities of an antigovernment organization, a member thereof or of the person who has received an order from it, or who acts in concert with it, or propagates or instigates a rebellion against the State, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, shall be punished by imprisonment for not more than seven years:”

(2) Deleted. <by Act No. 4373, May 31, 1991>;

(3) Any person who constitutes or joins an organization aiming at the act as referred to in paragraph (1) shall be punished by imprisonment for a definite term of one or more years;

(4) Any person who is a member of the organization as referred to in paragraph (3), and fabricates or circulates any falsies (sic) fact as to the matters which threaten to provoke any confusion of social order, shall be punished by imprisonment for a definite term of two or more years;

(5) Any person who manufactures, imports, reproduces, holds, carries, distributes, sells or acquires any documents, drawings or other expression materials, with the intention of committing the act as referred to in paragraph (1), (3) or (4), shall be punished by the penalty as referred to in the respective paragraph;

(6) Any person who has attempted the crime as referred to in paragraph (1) or (3) through (5), shall be punished;

(7) Any person who prepares for or plots the crime as referred to in paragraph (3) with the intention of committing it shall be punished by imprisonment for not more than five years.

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