ASIARIGHTS ISSUE ONE / JULY 2004
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From National Security to Human Security: The Past and Future of the National Security Law in Korea

Park, Won Soon

(Human Rights Lawyer and Director, Beautiful Foundation )

As of 25 August, of the 99 political prisoners in detention 54 were detained on charges under the National Security Law. Of these, the majority were arrested under Article 7, which punishes membership of organizations deemed to "benefit the enemy". Improving relations with North Korea prompted debate on reform of the National Security Law. President Kim Dae-Jung, apparently encouraged by his award of the Nobel Peace Prize, announced his support for revisions to the National Security Law, but opposition to reform in the National Assembly from both the Grand National Party and the United Liberal Democrats prevented significant revisions. (Amnesty International Report 2001)

Introduction

De Facto Constitution - The National Security Law

In Korea the National Security Law, henceforth NSL, has been called a de facto constitution. The NSL supercedes all law, including the Constitution, therefore even though it is inferior to the Constitution in name, in reality no legal enforcement agencies or court can challenge the unconstitutionality of this law.

The Korean peninsula has been a powder keg where one small incident could lead to large-scale armed conflict. In 1950 the Korean War broke out in which over 3 million people were killed. Since then, national security has been regarded as a sensitive issue among Korean people, and basic freedom and human rights enshrined in the South Korean Constitution have been sacrificed in the name of national security.  The NSL is a symbol of Korea's dark history and dictatorship. Innumerable citizens labeled as subversives, communists, or pro-North Korea have been imprisoned under this law. It was the first law to be put forward for abolition or amendment by the democratization movement.

During the democratization process the debate surrounding abolition of the NSL became heated. There was increasing public pressure to repeal the law but it was not enough to overshadow those who still believe the law indispensable to maintaining a national defense against North Korea. Thus despite intensive opposition and pressure the law survived.

The Evolution of the National Security Law

On August 15, 1945, following Japan's defeat in World War II and after forty years of Japanese colonial rule Korea gained its independence. The liberation brought other political developments dividing the Korean Peninsula. Korea was forcibly divided at the 38th parallel with U.S forces occupying the South and the Russian forces occupying the North. South Korea, supported by the United States, became the Republic of Korea, and followed a capitalist path. On August 1948, northern Korea, supported by the Soviet Union, became the Democratic People's Republic of Korea. The two governments argued over who was the legitimate government and from that time on competition and conflicts between the two intensified. 

As the South-North division became a reality, many communists within South Korea began a struggle against the Southern government. The South Korean government's response was to pass the National Security Law (NSL) intended to suppress subversive activities by communists. Even in the process of legislation several members of the National Assembly opposed the law. One of the main reasons was it would affect not only communists, but also innocent citizens and patriots. In this respect it was reminiscent of the “Peace Preservation Law” [ Chian-yuji-bop ] which limited freedom of Koreans during the Japanese colonial period. However the majority of the National Assembly approved the draft and the law passed on December 1 st 1948. The NSL was carried in response to by the argument that it was essential to crack down on communists and that it would be only a temporary emergency law that would end after the situation stabilized.

Deterioration With Each Regime

However, after the unstable situation was over, the NSL remained and was added to as time passed. Through seven revisions of the NSL, one can note some common characteristics of the revision process:

•  The law was revised by ruling powers driven by political motives. The revisions took place not because of deterioration of, or danger to the national security, but as a means to oppress people who rebelled against the ruling power. The revisions were frequently used by those who came into power through an illegal coup to crackdown on those who challenged the legitimacy of their rule.

•  Through successive revisions the NSL became more oppressive. Aside from the post April 10, 1960 revision and the seventh revision, the NSL became bloated with new articles and more penalties. The initial 6 provisions of the original NSL became 40. The maximum sentence in the first revised NSL was life sentence, but now there are 40 provisions that carry maximum penalty of death. This shows NSL as one of the cruelest laws to be enacted.

•  The process of revising the law has been unconstitutional, unlawful, and undemocratic. The fifth revision of the law, and enactment of the Anti-Communist Law, and the sixth revision of the NSL were carried out by military juntas created after the National Assembly was dismissed. The ruling party passed the fourth revision while the opposition members were under the house arrest by the police.

From its enactment and through all of its revisions, the NSL does not possess legitimacy either procedurally or in substance. It was not enacted and revised according to a democratic process and its provisions were not intended to truthfully guarantee the security of the nation and the basic rights of the people.

Main Instrument of the Dictatorship

The NSL does not function for 'national security' in the genuine sense of the phrase, but for an illegal and illegitimate government to suppress its dissidents. The law has been used to oppress countless numbers of students, citizens, workers, and artists who have endured prosecution.  It is impossible to count the precise number of the NSL -related cases. In 1949, one year after NSL was enacted, 80% of the 118,621 criminal arrests involved NSL violations. This fact alone attests to the enormous number of people abused under the law. Much of the information about NSL is missing, and a statistical analysis of the NSL cases prior to 1964 remains unfeasible. The law grew to encompass every aspect of political, social, and artistic life of Korean people. Control over the press has occurred and targets of NSL prosecution extend to poetry, paintings, professors' lecture notes, plays, and films.

Such excessive use of the NSL has been made possible with the support of the regular as well as secret police; the notorious Korean CIA. They routinely conducted illegal and criminal torture, involving interrogation methods tacitly approved by the judicial system. In other words, an independent judiciary and an impartial prosecution, an essential part of legal structure in any lawful society, does not exist in South Korea, and therefore, those indicted for NSL violations were deprived of the legal due process.

Since 1987, after the military dictatorship collapsed, NSL has been challenged by public opinion. The prosecution and police as a result became cautious in the application of the law and the court also began to hand down lighter terms. However, the NSL still exists and remains deeply problematic.

The NSL and the Violation of the Basic Human Rights

Freedom of Associations

Central to several offences under the NSL is the definition of an anti-state organization. Article 2 defines "an association or group within the territory of the Republic of Korea or outside of it, having a command structure with the purpose of claiming title of the Government or overthrowing the State". Before the 1991 revision of the law, there was no requirement for an organization or group to have a structure of command and control in order to be deemed "anti-state" and the new definition remains vague.

For example since 1990, members of Sanomaeng (Socialist Workers League) have faced arrest and imprisonment as prisoners of conscience for membership of an anti-state organization.  Members of "anti-state" organizations face severe penalties on conviction. Under Article Three leaders and organizers face the death penalty or a minimum of five years imprisonment. The law was written specifically to eradicate the existence of leftist organizations, regardless of their actual activities. This is clearly a violation of freedom of association.

Freedom of Thought

Freedom of thought generally refers to the right to freely form and maintain one's thoughts and philosophy. It is as important as freedom of education and religion. To nurture one's thoughts one should be allowed accesses to different political and economic thoughts as expressed in books and other printed materials. In numerous NSL cases, people were interrogated about their philosophies and were often punished when they did declare them.

In addition, since the law was intended to incriminate communists, any member of leftist organizations could be labeled as a communist follower. Thus he or she could be charged because he or she is a member of a communist or anti-governmental organization. In this sense the NSL violates freedom of thought.

Freedom of Expression 

The NSL punishes such acts as praising, encouraging, supporting, and benefiting the North Korean government or anti-state organizations. Under this article many artists, novelists and painters have been imprisoned. Section Seven is a clear infringement of the freedom of expression.

The 1991 revision of the Law introduced the requirement that to constitute an offence activities must be carried out "with the knowledge that they might endanger the existence, security of the state or the basic order of free democracy". As in other articles of the Law, this term is so vague that it is difficult to know what clearly constitutes a violation of law. Materials deemed to benefit North Korea have included North Korean literature, historical works, even academic theses - most of which were already publicly available. Thus a person could only be permitted to read or possess a book if it can be proved that there is no intent to benefit North Korea. This provision has caused confusion and has led to an arbitrary application of the law. In fact, almost of all violations of Article 7 are a clear infringement of the rights to freedom of expression and association. (Amnesty International, Republic of Korea- International Standards, Law and Practice: The Need for Human Rights Reform, Nov.1995,p.16 )

NSL's Violations of the ICCPR and Response of the International Community

Inconsistency between NSL and the ICCPR

The South Korean government maintains there is no fundamental disparity between the Constitution and the International Covenant on Civil and Political Rights (ICCPR) except those differences arising from customary legal procedures and from the statutory framework and practice designed for policy purposes.

However, many experts and NGOs dealing with human rights issues in and outside South Korea viewed the government's claim as an outright lie. According to them, the following fundamental rights and human rights were repressed under the South Korean legal system: Freedom of ideology and conscience; freedom of expression; freedom of peaceful assembly; right to participate in politics; right to life; prohibition of torture; right to liberty and security of person; humane treatment of inmates; right to labor; right to liberty of movement and residence; right to privacy and freedom of association.

Particularly at odds with the ICCPR are:

•  Article 3 that deals with the "formation of and association with an Anti-State Organization". This article specifies as a crime the formation or joining of an anti-state organization. Once an organization or group is defined as “anti-state”, not only those who formed or joined it, but also those who have had communication or otherwise contacted it are punishable under this law. This article grossly violates the freedom of assembly delineated in Article 22 of the ICCPR.

•  Article 6 articulates that "anyone who infiltrates the Republic of Korea from an area controlled by an Anti-State Organization, or escapes to such area, with the knowledge that it endangered national security or survival or the basic liberal democratic order" shall be punished with imprisonment for up to ten years. This article punishes movement between South and North Korea and violates Article 12, paragraph 2 of the Covenant, which guarantees the freedom to leave any country including his own. It also contravenes Article, paragraph 4 of the Covenant, which also guarantees the right not be deprived of the right to enter his own country.

•  Article 7 of the NSL, which punishes "praising, encouraging, sympathizing" with an enemy is the principal provision used to the prevent the freedom of expression guaranteed under the Covenant. Section 1 of this Article, stipulates that persons who have "benefited an Anti-State Organization by way of praising, encouraging, propagating, or siding with the activities of an Anti-State Organization, its membership or the persons who have propagated or instigated the disruption of the State with the knowledge that it will endanger the national security or survival or the basic liberal democratic order" shall be punished by up to seven years imprisonment. Under this article countless books and works were considered problematic and resulted in the arrest and punishment of authors and artists.

What United Nations Human Rights Bodies and Amnesty International Recommended

In July 1992 the Human Rights Committee stated that its main concern about the implementation of the ICCPR in South Korea was the continued operation of the NSL. The report stated that:

"Although the particular situation in which the Republic of Korea finds itself has implications for public order in the country, its influence ought not to be overestimated. The Committee believes that ordinary laws and specifically applicable criminal laws should be sufficient to deal with offences against national security. Furthermore, some issues addressed by the NSL are defined in somewhat vague terms, allowing for broad interpretation that may result in acts that may no truly be dangerous for state security and led to responses unauthorized by the Covenant."

 The Committee recommended that South Korea should:

"Intensify its efforts to bring its legislation more in line with the provisions of the Covenant. To that end, a serious attempt ought to be undertaken to phase out the NSL which the committee perceives as a major obstacle to the realization of the rights enshrined in the Covenant and from basic rights."

For many years Amnesty International has called for the NSL to be amended in line with international human rights standards. Amnesty International, aware of the military and political situation caused by the division of the Korean Peninsula, takes no position on the existence of the national security legislation but in its view the restrictions on freedom of expression and association in the NSL go beyond the restrictions allowed by the ICCPR. Amnesty International believed that basic rights such as the rights to freedom of expression and association should not be dependent upon relations with North Korea.

Recent Development and Contradictions

Contradiction One: Reduction of Tension with North Korea, but tension within.

In light of the historical progress made between South and North Korea, the need for the NSL no longer exists. The existence of the law had been historically justified in the context of alleged North Korean threat. However, continuing improvements in relations and expansion of exchanges between South and North Korea have dramatically diminished the usefulness of the NSL.

The summit between the South and the North in June 2000 and its aftermath strengthened dialogue, exchange and other measures of detente in the Korean Peninsula. Now mutual exchanges, from regular political meetings to businessmen, scholars, and sportsmen became ordinary matters of exchange and contact. In 2002 alone, 12,815 South Koreans visited North Korea for various reasons.

However, the premise of the NSL that North Korea is still a threat is still in force. Benefiting and praising politicians and businessmen in the process of talks, trade and exchanges are now commonplace. But these activities are still punishable under law.

Contradiction 2: The development of democratization in Korean Society, but survival of the NSL. Since 1987, Koreans and the outside world have witnessed consistent development of democracy in South Korea. Every 5 years, new president was inaugurated. With the new president, important high-ranking positions were also exchanged. Fortunately each president was coming from leaders of the opposition party and democratic movement. Kim Dae Jung and his predecessor Kim Young Sam were leaders of the suppressed opposition party. The recently sworn-in President Noh Mu Hyun is also a former freedom fighter. Mr. Ko Young Ku, former chief of the (Minbyun) Lawyers for a Democratic Society was appointed as a head of KCIA, secret service and another member of Minbyun, Kang Kum Sil, became the minister of the Justice.

Despite their efforts, the NSL survived. Minister Kang announced amnesty to those students who were wanted by the prosecution. However, she could not make the students national organization Han-Chong-Ryun that was marked as an anti-state organization legal. Under her justice administration, the NSL still applies and many students and workers continue to be arrested.

From National Security To Human Security: The Future of the NSL through changing circumstances.

Universal Phenomena - National Security Law Dominated Societies

National security laws have an ignominious history in the Philippines. During the Marcos dictatorship from 1972-1986, theses kinds of laws were used to arrest and detain people, strip them of their humanity and deprive them of freedom and to destroy constitutional democracy. “But the return to constitutional democracy did not signal the total eclipse of national security laws. A few remained. These durable laws are General Order Nos.66 and 67 that authorize the military and police to set up checkpoints and to conduct searches in these checkpoints. “ (Rene V. Sarmiento, Vice Chairperson, PAHRA, "National Security Laws; Menace to Democracy")

The case of Japan I suggest is a good "bad example" to dispel the commonly held view that a "Successful Security State" can safely achieve a high level of industrial growth and remain free from blame for the blatant human rights violations it committed in the process. Japan has been a "forerunner" of most Security States on the Region.  When most others were under colonial rule, Japan developed a developmentalist security state of the worst kind. aggressing and colonizing its neighbors. (Khinhide Mushakoji, "From a Region of National Security States to a Region of Human Security Societies")

The legal framework for the national security for Asia was introduced by the Westerners and by the Japanese colonial administration. In Asian countries, those who gained control after independence inherited the anti-labor national security measures from the colonial administration. They applied the measures to their own nationals in like ways. A few examples of such case are the Korean National Security Law of 1 December 1948, the laws of Philippines in 1950s at the peak of anti-communism, the Taiwan martial law and the post-military coup Thai laws. The widely defined national security laws have several characteristics. First, their legislative purpose lies on the repression of public resistance against the regime's policy implementation and on sustaining and strengthening its controlling mechanism. Second, the laws that breach human rights maintain the principle of political precaution. In other words, they punish the "enemy of state" before it physically causes any real harm to the national security. They justify this practice by referring the danger of a potential threat (Park Hyung-Kyu, "Development Dictatorship & Human Rights").

Universal Path to Democracy

Despite a dictatorial past many Asian countries have also experienced the democratic development route. As the wind of democracy and human rights blow, these countries have been in the midst of democratization and the essential part of democratization was a return to the value of human rights and recovery of democratic institutions.

In most countries that were authoritarian, it was common to have nation security laws and agencies. National security laws and institutions became a target of public resistance. Hatred and intolerance soared against such laws and agencies. In Korea, those laws and agencies took the form of the National Security Law and National Security Planning Board.

The idea that overemphasizing the importance of the national security might lead to totalitarianism and dictatorship is right. Another way of thinking is to regard individual human rights as inevitably leading to democracy. No-one denies that every state is on the way to democracy and towards societies where human rights are respected. A national security law that takes away democratic and human rights is unacceptable and the times in which it can exist are coming to an end.

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About the author: Won-Soon Park is a lawyer specializing in human rights. He is the former Secretary General of The People's Solidarity for Participatory Democracy and a Director of the Beautiful Foundation.

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For an English translation of the National Security Law, see http://freesong.jinbo.net/maybbs/view.php?db=freesong&code=document&n=6

 

 

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