acknowledging that his activities could be beneficial
to North Korea.
–
The prohibited acts and the concepts
spelled out in paragraphs 1 and 5 of article 7 of the
National Security Law are defined in such broad and
ambiguous terms that these provisions violated the
principle of legality, that is, article 21, paragraph 1,
of the Constitution, which provides that freedoms
and rights of citizens may be restricted by law only
when absolutely necessary for national security,
maintenance of law and order, public welfare, and
that such restrictions may not violate essential
aspects of fundamental rights; and
2.8 On 10 May 1991, the National Assembly
passed a number of amendments to the National
Security Law; paragraphs 1 and 5 of article 7 were
amended by the addition of the words "with the
knowledge that it will endanger national security or
survival, or the free and democratic order" to the
previous provisions.
The complaint
–
In light of the findings of the
Constitutional Court, the application of these
provisions should be suspended for activities which
carry no obvious danger for national security or the
survival of democratic order. Since the incriminated
material was not produced and distributed with the
purpose of praising North Korea, and further does
not contain any information which would obviously
endanger either survival or security of the Republic
of Korea, or its democratic order, the author should
not be punished.
3.1 Counsel contends that although article 21,
paragraph 1, of the Korean Constitution provides
that "all citizens shall enjoy freedom of speech,
press, assembly and association", article 7 of the
National Security Law has often been applied to
restrict freedom of thought, conscience or expression
through speech or publication, by acts, association,
etc. Under this provision, anyone who supports or
thinks in positive terms about socialism, communism
or the political system of North Korea is liable to
punishment. It is further argued that there have been
numerous cases in which this provision was applied
to punish those who criticized government policies,
because their criticism happened to be similar to that
proffered by the North Korean regime against South
Korea. In counsel's view, the author's case is a model
of such abusive application of the National Security
Law, in violation of article 19, paragraph 2, of the
Covenant.
2.6 The appellate court upheld the conviction on
the basis that the evidence showed that the author's
written materials, which he read out at a large
convention, argued that the Republic of Korea was
under influence of foreign powers, defined the
Government as a military dictatorship and contained
other views which corresponded to North Korean
propaganda. According to the Court the materials
therefore advocated the policy of North Korea, and
the first instance court had thus sufficient grounds to
acknowledge that the author was siding with and
benefiting an anti-State organization.
3.2 It is further argued that the courts' reasoning
clearly shows how the National Security Law is
manipulated to restrict freedom of expression, on
the basis of the following considerations contrary to
article 19 of the Covenant. First, the courts found
that the author held opinions which were critical of
the policies of the Government of the Republic of
Korea; secondly, North Korea has criticized the
Government of South Korea in that it distorts South
Korean reality; thirdly, North Korea is
characterized as an anti-State organization, which
has been formed for the purpose of upstaging the
government of South Korea (article 2 of the
National Security Law); fourthly, the author wrote
and published material containing criticism similar
to that voiced by North Korea vis-à-vis South
Korea; fifthly, the author must have known about
that criticism; and, finally, the author's activities
must have been undertaken for the benefit of North
Korea and therefore amount to praise and
encouragement of that country's regime.
2.7 On 26 April 1991, the Supreme Court held
that the relevant provisions of the National Security
Law did not violate the Constitution so long as they
were applied to a case where an activity puts
national survival and security at stake or endangers
basic liberal democratic order. Thus under article 7
(1) "activity which sides with ... and benefits" an
anti-State organization means that if such activity
could be beneficial to that organization objectively,
the prohibition applies. The prohibition is applicable,
if a person with normal mentality, intelligence and
common sense acknowledges that the activity in
question could be beneficial to the anti-state
organization, or if there is wilful recognition that it
could be beneficial. According to the Supreme
Court, this implies that it is not necessary for the
person
concerned
to
have
intentional
acknowledgement or motivation to be "beneficial".
The court went on to hold that the author and his
colleagues had produced material which can be
recognised, as a whole and objectively, to side with
North Korean propaganda and that the author, who
has normal intelligence and common sense, read it
out and supported it, thereby objectively
3.3 Counsel refers to the observations of the
Human Rights Committee, which were adopted after
consideration of the initial report of the Republic of
Korea under article 40 of the Covenant.
CCPR/C/79/Add.6, adopted during the Committee's
45th session (Oct.-Nov. 1992), paragraphs 6 and 9.
111
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents