National Security Law – Repeal? Revision? or Retention?
Albeit the Republic of Korea (South Korea) is normally defined as one ruled by democracy, facing political or legal dilemmas is inevitable when it comes to national security issues related to North Korea. Democratic A democratic country obviously does not mean preserving unlimited freedom but the situation with North Korea makes South Koreans very sensitive to national security issues and bifurcate people by political stances. Such circumstances often limit individual freedom as well. This specific phenomenon stems from tragic history-the Korean War-and it is no surprise that the so-called Red Scare, or Anti-communism, still haunts South Korean society.
It has been witnessed throughout many historical examples that Anti-communism was chiefly used to eliminate political opposition before South Korea became democratized. The National Security Law (hereinafter “NSL”) which was enacted while President Syngman Rhee-one of the dictators- was in office unfortunately provided its legal legitimacy. This is assumed to be the main reason that the National Security Law is considered to be necessary evil by the public and some even insist its repeal. In this essay, article 7, the most widely used clause of the NSL, will be mainly discussed along with suggestions about the future of NSL.
- Description of National Security Law
- Historical Background
The National Security Law bans both communism and recognition of North Korea as a legitimate entity. The NSL was enacted on December 1, 1948. According to Kraft’s study, political unrest did not cease after the Korean War. Conflicts between People’s Committee (left-wing) and anti-communists (right wing) erupted throughout the country. Among many others, two rebellions triggered the establishment of the NSL. Cheju Island had a de facto government mainly run by the People’s Committee. In the following battle by the government to suppress this left-wing insurgency, sixty thousand people were killed. In October 1948, more than one thousand people of Yeosu also died in the rebellion. Newly elected President Syngman Rhee arrested members of the leftist and the National Assembly drafted anti-treason law that was ultimately passed as the NSL in order to assist the president to suppress their threat to the government. By 1949, thirty thousand people were imprisoned by Rhee, accused of being communists, and 80 percent of all court cases involved charges against suspected communists.
|1991||§1(Purpose, etc.), §2 (Definition), §3(Constitution, etc. of Anti-Government Organization), §4 (Accomplishment of Purpose), §5(Voluntary Assistance and Receipt of Money and Goods), §6(Infiltration and Escape), §7(Praise, Incitement, etc.), §8(Meeting, Correspondence, etc.), §9(Offer of Convenience), §10 (Non-Information), §14(Concurrent Imposition of Suspension of Qualification), §16 (Reduction and Exemption of Punishment), §19(Extension of Detention Period), §23(Compensation)|
|1994||§25(Provisions Applicable to Person Subject to Application of Military Act)|
|1997||§17(Exclusion of Application of Other Acts), §23(Compensation)|
|2011||Addenda<Act No. 11042, Sep. 15, 2011>|
The NSL has reformed and strengthened over time. According to the report of Amnesty International, the NSL contained 6 clauses at the time of its adoption. Ensuing significant amendments increased the number of clauses to 25.
There have been revisions in 1949, 1950, 1958, 1960, 1962 and most recently, in 1980 when the NSL was entirely amended. On December 31 of 1980, the Anti-Communist Law was merged with the NSL. Since then, the NSL has been revised in 1987, largely in 1991, 1994, revised twice in 1997 and 2011.
- Application of the NSL
A number of political prisoners were executed under the NSL between 1948 and 1986. According to the Ministry of Justice, 230 political prisoners were executed under the NSL. Although no executions have been conducted ever since 1986, thousands were tortured even until 1990s.
During the Kim Dae-jung and the Roh Moo-hyun administrations from 1998 to 2008, the number of people charged for the violation of the NSL fell sharply since both presidents supported the abolition of the NSL. According to Amnesty International’s estimates,
during Kim Dae-jung’s presidency, the number of those imprisoned for violating the NSL fell from 82 to 41. under Roh Moo-hyun’s presidency the number also dropped significantly.
After Lee Myung-bak became president in 2008, most NSL cases were connected to candlelight protests. Given tense inter-Korean relations, the Lee administration adopted a tougher approach towards North Korea. Consequently, the number of people charged under provisions of the NSL has increased since 2008, suppressing criticism towards the government and controlling debates on North Korea.
III. Constitutionality of National Security Law – Case Study on Article 7
Within several decades of its enactment, the Constitutional Court has been required to rule on the constitutionality of the NSL and still rules that the NSL is constitutional. The core of the NSL’s constitutionality is whether the balance between national security and human rights- freedom of expression, opinion and association, and academic freedom was maintained throughout the legal process-from its application to judges’ sentence after the trial.
Article 7, the most widely used clause of the NSL, faces a lot of vehement criticisms from its opponents and even from its supporters in many aspects. Although its vague wording has been used to silence political oppositions from the government, it still has a potential to meet oppositions even after South Korea is believed to be democratized. As mentioned above, even after South Korea is deemed to be democratized, the application of the NSL is influenced by the political stance of the president. Such tendency has rendered objectors of the NSL to insist on its abolition. To illustrate main problems arising out of article 7, two cases will be delineated.
- a) Socialist Workers League Case
The NSL has been abused by the authorities to undermine the constitutionally protected freedom of association. The NSL was used to punish members of the Socialist Workers League which was established in February 2008. The league demanded the establishment of a ‘real socialist state’ and the abolition of the armed forces. While being enormously critical about North Korea and its exploitation on labor this league was still defined as antinational and accused by the authority.
The league posted statements advocating a socialist state on the Internet and published and distributed pamphlets during the candlelight vigil against US beef imports in 2008. After six months, the members of the Socialist Workers League were investigated under the NSL. At the beginning in August of 2008, Socialist Workers League founder Professor Oh Se-chul and six other members were arrested for violating Articles 3 and 7 of the NSL but were released soon. Between August and October in 2008, the Seoul Central District Court turned down police requests to issue arrest warrants twice on the ground of insufficient evidence and that the individuals did not commit substantial threat to national security. However in February 2009, prosecutors charged Professor Oh and seven other office holders of the Socialist Workers League again for violating Article 7 of the NSL. In February 2011, the Seoul Central District Court changed its attitude and found them guilty of violating NSL “Article 7.1. propagating or instigating a rebellion against the State.”
On its appeal, the Seoul High Court unusually increased the eight members’ sentences to between 18 months to two years in prison and three years of suspension in December 2011.
- b) Capitalism Research Society Case
The NSL was also used to suppress academic debate on the study of North Korean issues. Members of the Capitalism Research Society were investigated for breaching the NSL and their first President Choi Ho-hyeon was charged and later found guilty of violating Article 7 of the NSL.
The Capitalism Research Society is an academic organization that organizes events such as Alternative Economy Camps where its members study and discuss alternative economic models.
The police considered the camp held in January 2008 to be an enemy-benefiting activity. The Police searched the homes of at least 10 members including former presidents of the group and confiscated materials such as computer hard disks and USB devices from the camp.
The prosecutors reportedly tried to charge the members of the Capitalism Research Society for violating Article 7 of the NSL “constituting an enemy benefiting organization and conveying enemy benefiting materials”. Accordingly, Choi Ho-hyeon was sentenced to two years in prison and three years of suspension for carrying enemy benefiting materials and restrictions were imposed on his movement and association in August 2011.
- c) Propositions
Even though Socialist Workers League members had only used peaceful measures to advocate a socialist state and had also been largely critical of North Korea, the use of the NSL to target members of the Socialist Workers League seriously undermined their freedom of expression, opinion and association. This case clearly reveals our law enforcement agencies fail to perceive communism as itself and as an academic objective among many other political thoughts. This almost seems a modern day witch hunt. Our thoughts can be transmitted and developed mostly by a group of people who share the same thought. If our government does not tolerate variety of political thought just because communism is the doctrine of North Korea, our society cannot be truly democratized not to mention the discussion about North Korean would hardly further.
In the case of the Capitalism Research Society, it was one of various academic organizations that worked yet again “peacefully” on issues related to North Korea. Charging Choi Ho-hyeon with a serious criminal offense under the NSL is not only his personal suffering but also a threat to academic debate on North Korea. Academic research should be respected above all taking our future after reunification into consideration. There will be a need to enact new national systems, new laws and new policies to rebuild the country. Since the Korean War, South Korea and North Korea have developed wide and distinct differences and it will hinder rebuilding the reunified Korea. Taking it into our consideration, academic research regarding North Korean system is essential. The Court should be stricter in applying the NSL to protect freedom of expression, opinion and association, and academic freedom
- Opinions Regarding the National Security Law
Opinions about the NSL are politically dichotomized; the Grand National Party, as the right, endorses retention of the NSL while the Uri Party, as the left, supports its repeal. The Constitutional Court ruling that the NSL is mostly constitutional resulted in bolstering the right wing’s opinion. Since the debate on abolishing the NSL has been brought out often, it is necessary to inquire the rationales of each opinion.
Having been arrested and sentenced to death under the NSL, left-wing President Kim Dae Jung’s call for the ultimate revision of the NSL seems natural. Since his administration did not abolish the law as the final outcome, his successor, President Roh Moo Hyun, and the Uri party, called again for the repeal of the NSL. Roh suggested abolition of the NSL by asserting that the law has been used to silence opposition towards the government and to improve human rights of South Korea in light of the Charter of UN.
To refute worries about any dangerous gaps left by the abolition of the NSL, the Uri Party insists that it could be compensated by the revision of the criminal law. In addition to its pro-abolition position, the Uri Party suggests that the National Security Law will have to be repealed in order to enhance exchanges between North and South Koreans. They assert that if North and South Korea are ever to reunite, communication and exchanges between the two countries at citizen level are indispensable. The Uri Party argues that the first step in making this possible is to abolish the National Security Law.
According to Kraft’s article, arguments of the Grand National Party can be mostly summarized as abolishing the law would compromise national security by leaving South Korea defenseless against North Korea. In other words, South Korea will be “haven of North Korean spy agents” if the law is repealed. Their concern, however, extends beyond infiltration by spies. Some members of the Grand National Party also attribute South Korea’s stability at least partly to the National Security Law, and concern that if the law were repealed, South Koreans would feel free to express their support for North Korea, leading to political unrest. They insist that any change in the National Security Law must be preceded by a major change in North Korean ideology. As one member argued, “It is impossible to scrap or revise the National Security Law without a basic change in the attitude of North Korea.
Moreover, they argue that the current Criminal Law cannot cover some offenses falling within Article 7 of the NSL, and it will be unnecessary to abolish the NSL if the role of the NSL is replaced by revising Criminal Law in order to punish those in violation of Article 7.
Our government has made numerous attempts to approach North Korea such as a summit between Kim Dae Jung and Kim Jong Il in June 2000 as well as several large exchanges of family members. Unfortunately, intermittent threats from North Korea prevent becoming relieved about the situationNorth Korea insists on possessing nuclear weapons and waging attacks such as the sinking of the Cheonan and the incident on the Yeonpyeong island in 2010. Although the National Security Law has a potential to infringe upon human rights and its constitutionality is often doubted, retaining it until reunification of the Korean peninsula seems to be the best choice. However, the retention should be agreed under the condition of revising Article 7, the most widely used clause, to be clearer in terms of its wording.
Furthermore, even if one is charged with violation of the NSL, his/her human rights must be protected throughout the process of applying and enforcing the NSL.
|Figure 1 Hong Young Lim, Survey on The National Security Law- 57 % say rather than repeal, revision and retention, Chosun Ilbo, Aug 8 2008, available at http://news.chosun.com/svc/content_view/content_view.html?contid=2004080870278|
According to the report of Amnesty International, the application process of the NSL by the law enforcement is also problematic. It has received testimony that investigative authorities have ill-treated detainees and witnesses and denied detainees’ access to relatives when they exercised their right to silence and did not respond to interrogations. In Wangjaesan case, five men were arrested in August 2011 and were charged with forming an anti-government organization and conducting espionage activities following the suspicion that they had contact with North Koreans. Five men refused to answer the questions put to them during their interrogation by the National Intelligence Service (NIS). Subsequently, they were given very limited access to their family members.
Their wives told Amnesty International in November 2011 how the investigative authorities had mistreated them. In one case, two wives of the detained men were summoned for interrogations that lasted from 9am to midnight in windowless rooms. One of the wives described how seriously she was humiliated by being observed while using the toilet during her break through doors constructed to facilitate such observation.
The position of the supporter of the NSL has been strengthened by support from both the Constitutional and Supreme Court of South Korea. In 1990, even if the Constitutional Court recognized that parts of the National Security Law were unconstitutional, the National Security Law was still not held to be unconstitutional as a whole. In addition, the court found that repeal of the entire National Security Law could lead to legal chaos, and stated that the disadvantages of repealing the law could be greater than the advantages, given the tensions between North and South Korea. The Supreme Court ruled against a proposal to repeal the law in accordance with the rulings of the Constitutional Court in September 2004.
Likewise, the majority of the public admits the necessity of NSL per se (see Figure 1).
However, many historical examples such as People’s Revolutionary Party Incident suggest that there is reason to fear its abuse by incumbent presidents or parties in order to silence political oppositions. Therefore, not only the revision but also, protecting human rights of anyone included up to the Charter of the UN in applying the NSL by law enforcement is required to clear political suspicions and prohibiting any groundless collective punishment. This will lead the public to be assured of its legitimacy.
As a whole our government is in dilemma. On one hand, it has to make numerous attempts to approach North Korea; on the other hand, it has to protect our national security from intermittent threats from North Korea. Although the National Security Law has a potential to infringe upon human rights and its constitutionality is often doubted, retaining it until reunification of the Korean peninsula seems to be the best choices. However, the retention should be agreed under the condition of revising Article 7, the most widely used clause, to be clearer in terms of its wording.
In addition, even if one is charged with violation of the NSL, his/her human rights must be protected throughout the process of applying and enforcing the NSL.
Albeit Republic of Korea (South Korea) is normally defined as one ruled by democracy, facing political or legal dilemmas is inevitable when it comes to national security issues related to North Korea. Situation with North Korea makes South Koreans very sensitive to those issues and bifurcate people by political stances. Such circumstance often limits individual freedom as well. Our government has made numerous attempts to approach North Korea; however, intermittent threats from North Korea prevent becoming relieved about the situationNorth Korea insists on possessing nuclear weapons and waging attacks such as the sinking of the Cheonan and the incident on the Yeonpyeong island in 2010. Although the National Security Law has a potential to infringe upon human rights and its constitutionality is often doubted, retaining it until reunification of the Korean peninsula seems to be the best choices. However, the retention should be agreed under the condition of revising Article 7, the most widely used clause, to be clearer in terms of its wording. Furthermore, even if one is charged with violation of the NSL, his/her human rights must be protected throughout the process of applying and enforcing the NSL.
 Diane Kraft, South Korea’s National Security Law: A Tool of Oppression in an Insecure World, Wisconsin International Law Journal, 24(2), 627-628, (2006).
 Amnesty International, The National Security Law Curtailing Freedom of Expression and Association in the Name of Security in the Republic of Korea, Amnesty International Publications, International Secretariat, 39, (2012).
 Amnesty International, Ibid at 39
 Amnesty International, Ibid at 14
 Amnesty International, Ibid at 14
 Amnesty International, Ibid at 14
 Amnesty International, Ibid at 14
 National Security Law Article 7.1. Any person who praises, incited or propagates the activities of an antigovernment organization, 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. (translated by Korea Legislation Research Institute available at http://elaw.klri.re.kr/kor_service/lawView.do?hseq=26692&lang=ENG)
 Supreme Court en banc Decision 93Do739 Decided May 14, 1993
 Amnesty International, supra note 2 at 10
 National Security Law Article 3 (Constitution, etc. of Anti-Government Organization)
(1) Any person who constitutes or joins an anti-government organization, shall be punished as follows:
1 A person engaged in the function of a ringleader shall be punished by capital punishment or imprisonment for life;
- A person engaged in the function of a leading member shall be punished by capital punishment. imprisonment for life or imprisonment for more than five years; and
3 Other persons shall be punished by imprisonment for a definite term of two or more years.
(2) Any person who induces another person to join an anti-government organization shall be punished by imprisonment for a definite term of two or more years.
(3) Any criminal attempt of the crimes as referred to in paragraphs (1) and (2) shall be punished.
(4) Any person who prepares for or plots the crimes as referred to in paragraph (1) 1 and 2, with the intention of committing them, shall be punished by imprisonment for a definite term of two or more years.
(5) Any person who prepares for or plots the crime as referred to in paragraph (1) 3, with the intention of committing it, shall be punished by imprisonment for not more than ten years. <Amended by Act No. 4373, May 31, 1991> (translated by Korea Legislation Research Institute available at http://elaw.klri.re.kr/kor_service/lawView.do?hseq=26692&lang=ENG)
 Amnesty International, supra note 2 at 7
 Sentenced by Seoul Central District Court Criminal Collegiate Body division 22
 Amnesty International, Supra note 2 at 8
 Amnesty International, Ibid at 7
 Amnesty International, Ibid at 12
 Kraft, supra note 1 at 636
 Song Wu Park, Amnesty Backs Security Law Abolition, Korea Times, October 14, 2004, http://times.hankooki.com/lpage/200410/kt2004101416243410230.htm.
 Kraft, supra note 1 at 636
 Kraft, Ibid at 636
 Kraft, Ibid at 639
 Supreme Court en banc Decision 2013Do2511 Decided July 26, 2013; also refer to Seoul High Court Order 2012No805 Dated February 8, 2009
 Amnesty International, supra note 2 at 28
 Kraft, supra note 1 at 637