1. The Threats from North Korea, and the South Korean Government’s Response
The First Deputy Director of the United Front Department of the Workers’ Party of [North] Korea (WPK), Kim Yo Jong, released a statement on June 4th, 2020 whereby she criticized the North Korean defector organizations in South Korea involved with sending leaflets into North Korea; in her statement, she called for ‘a law to be enacted so that these leaflet sending activities can be stopped’, and in case of noncompliance, she further threatened the complete dismantling of the Kaesong Industrial Region, the shutting down of the Inter-Korea Communications Joint Liaison Office, the the annulment of the inter-Korean military agreement, and that there will be a severe price to pay.
The spokesperson for the South Korean Ministry of Unification (MoU) held an emergency press briefing four hours after Kim Yo Jong released her statement, and responded with a statement calling for the immediate cessation of leaflet launches into North Korea which threaten the lives and the livelihood of South Korean residents who live along the border area, and that officials are looking into improving the already-proven system dealing with the issue.
Following the press briefing, on June 9, 2020, the North Korean regime cut off all communication between South and North Korea, including the channel between the Blue House and North Korean officials; the North Korean regime also delivered a message stating that they would change the direction of their South Korea policy to a hostile policy. In response, the Blue House convened a National Security Council (NSC) meeting on June 11th, and affirmed and declared that the sending of leaflets and other goods into North Korea violates the July 4, 1972 South-North Joint Statement, the Annex Agreement to the Implementation of Chapter 1 of the 1992 Inter-Korean Framework Agreement, the June 4, 2004 Agreement and Agreements between South and North Korea, and the Panmunjom Proclamation of 2018; and going forward, will thoroughly crack down on the sending of leaflets and other goods into North Korea, and respond strictly in accordance with the law in case of violation.
2. The Legislative Process
In line with the policy set forth by the Blue House, National Assemblyman Song Young Gil, who is the chairman of the Foreign Affairs and Unification Committee of the 21st National Assembly of the Republic of Korea, and 12 lawmakers from the ruling Deoburominjudang (Democrat Party of Korea), on June 30th, 2020 proposed “A Partial Amendment to the Law on the Development of Inter-Korean Relations” (hereon referred to as the ‘South-North Relations Bill’) as the first priority bill to be passed in the National Assembly.
The ‘South-North Relations Bill’ was sent to the Foreign Affairs and Unification Committee, which has jurisdiction over such matters, on July 1st, 2020, and on December 2, despite the protest put up by the opposition party members, passed the Committee by just the agreement of the ruling party lawmakers, and on December 8th, 2020, the bill passed the Legislative and Judiciary Committee; on December 14th, the bill was voted at a plenary session of the National Assembly and now awaits only the President’s promulgation.
The ‘South-North Relations Bill’ has a new amendment that was proposed, the 24th Amendment titled the ‘The Act on the Violation of the Inter-Korean Agreement’, and states in Section 1 that “No one shall harm the lives or bodies of the people or cause serious danger by doing any of the following acts: 1. Broadcasting through speakers against North Korea in the Military Demarcation Line 2. Posting visual media (posts) towards North Korea in the Military Demarcation Line 3. Distribution of leaflets, etc.”
Article 25 states the penalty for those who violate the law as follows: “up to not more than three years in prison or 30 million won in fines.” In Article 4, Section 5, the bill further explains, “The term “leaflets, etc.” means flyers, goods (including advertisements, printed materials, auxiliary memory devices, etc.) and money or other property profits”; in Article 4, Section 6, it stipulates very comprehensively the actions that would be considered illegal regarding the meaning of ‘sending’, such as doing so without receiving official approval, distribution of materials to unspecified masses in North Korea, and including using a third country as a transit point to move materials to North Korea.
3. The ‘South-North Relations Bill’ and Freedom of Expression A) Infringement of Freedom of Expression
Article 21 of the Constitution of the Republic of Korea states the freedom of expression guaranteed of its citizens. Without freedom of expression and vigorous debate guaranteed for citizens, democracy cannot exist, so therefore the freedom of
speech is an important right guaranteed under the Constitution and must be fully guaranteed and protected; this freedom traditionally means freedom of expression and propagation of ideas or opinions.
Earlier on, the United Nations (UN) in 1946 during the first session, in calling for an international conference on freedom of information, proclaimed on December 14 that “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated” and further proclaimed that “Freedom of information implies the right to gather, transmit and publish news anywhere and everywhere without fetters.” (Resolution 59 (1) A/RES/59(I)). Furthermore, Article 19 of the Universal Declaration of Human Rights (UDHR), and Article 19, Clause 2 of the International Covenant on Civil and Political Rights (ICCPR) of which both South and North Korea are signatories of, both state the importance of freedom of information. [UDHR, Article 19 -Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; ICCPR, Article 19, Clause 2 -Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.]
Furthermore, as confirmed in the 2014 UN Commission of Inquiry on human rights in the DPRK, and the December 16, 2020, 75th UN General Assembly resolution on North Korean human rights which has passed consecutively for the past 16 years, North Korean citizens who are by law, under the Republic of Korea Constitution South Korean citizens, have suffered for a long time under crimes against humanity which has no parallel in the modern world; furthermore, the cause of the suffering is the North Korean regime which completely controls the North Korean citizens’ right to knowledge (the right to information access). Therefore, using the excuse of the safety of border area residents in South Korea to illegalize the very act of delivering information into North Korea ignores the suffering of the North Korean people and is an anti-humanitarian, evil act that only perpetuates the North Korean tyrannical regime of Kim Jong Un. On December 4th, the Presidium of the Supreme People’s Assembly of North Korea adopted a new law against “reactionary ideology and culture”; this action reflects the importance of outside information in North Korea, and the rule of fear of the Kim Jong Un regime in trying to stop the flow of such outside information into the country.
The National Human Rights Commission of South Korea also called for more efforts by the South Korean government to use all necessary means and media outlets to allow free access to outside information by the North Korean people, and cultivate awareness about human rights among the people inside North Korea on December 6th, 2010. Furthermore, the Commission also stated on January 26th, 2015 that the information-dissemination activities into North Korea carried out by individuals and civilian organizations fall under the basic freedom of expression according to the Constitution, and that the threats of the North Korean regime or agreements between the South and North Korean governments banning the criticisms or slandering of one another cannot be a basis for limiting such activities; the Commission further stated that the government cannot monitor or stop the rightful activities of individuals or organizations sending information into North Korea, using these reasons.
B. The Falsehood Of The Proponents Of Legislation
National Assemblyman Song Young Gil, who is also the chairman of the Foreign Affairs and Unification Committee, and 12 other Deoburominjudang (Democrat Party of Korea) lawmakers stated the following as reasons for proposing the bill: “South Korea has agreed with North Korea, under agreements signed in the ‘July 4 North-South Joint Statement of 1972’ and the ‘Inter-Korean Basic Agreement’, to cease criticisms and slandering of each other, and through the ‘Panmunjom Proclamation’, all hostile acts including loudspeaker broadcasting and leaflet distribution, will be stopped at the Military Demarcation Line; however, despite the agreements, civilian organizations that fall under the agreements are, through their leaflets and hostile acts, running counter to the inter-Korean agreements and provoking handicaps for the promotion of peaceful unification policies prescribed by the Constitution.”
However, in the documents cited by Assemblyman Song and other ruling party lawmakers in favor of the ‘South-North Relations Bill’, there are only general and vague statements such as ‘ending military hostility in the demilitarized zone and other demilitarized areas’, and ‘the substantial elimination of war risks throughout the Korean Peninsula and the resolution of fundamental antagonism’; there are no statements that refer to the banning of such activities as the “1. Broadcasting through speakers against North Korea in the Military Demarcation Line 2. Posting visual media (posts) towards North Korea in the Military Demarcation Line 3. Distribution of leaflets, etc.”
In conclusion, it is clear that the position of those proposing this bill have made false
claims to shut the mouths of the people of South Korea, all for the oppressor in North Korea.
C. The International Response
Regarding the ‘South-North Relations Bill’, Representative Chris Smith (R-NJ) of the US Congress who co-chairs the bipartisan ‘Tom Lantos Human Rights Commission’, said in a statement released on December 11 that this bill is an “apparent violation of South Korea’s constitution and the nation’s obligations under the International
Covenant on Civil and Political Rights.”(ICCPR)”, and further stated that ”in the event that they pass such a law, I call upon our State Department to critically reevaluate the Republic of Korea’s commitment to democratic values in its annual human rights report, as well as in its report on international religious freedom. It may very well be that we will see South Korea put on a watch list, which would be a very sad development indeed.” Tomás Ojea Quintana, the Special Rapporteur on the situation of human rights in the DPRK, stated on December 16 that the bill challenges the international standards for human rights, and that it is a shortcoming that imposes excessive sanctions on acts based on freedom of expression which is the cornerstone of a democratic society, and recommended that relevant democratic institutions carry out an appropriate review of the legislation before it is implemented.
On December 20, Lord David Alton, a Member of Parliament from the United Kingdom (House of Lords), stated in a letter to his own government that the bill is a ‘gag law’ and urged the South Korean government to reconsider; on December 21st, one of the leading newspapers of Japan, the Asahi Shimbun, stated in an op-ed that South Korea should “reconsider this step which perpetuates the limiting of the rights of citizens by succumbing to an unreasonable demand from North Korea.’ Signe Poulsen, the former Representative, OHCHR in Seoul, has also stated in previous occasions that the leaflet balloon launches into North Korea are activities to send information to the North Korean people, and that these activities fall under the ideal of freedom of expression.
The Government of South Korea has stated that the leaflet activities put the lives of the border area residents in danger, and that such activities present a ‘clear and existing threat’ and therefore could be limited. However, Special Rapporteur Quintana recently also stated that “there needs to be a clear link between expression and threat, and the shooting of anti-aircraft artillery by the North Korean regime a few years ago, in 2014, at a leaflet balloon launch site alone does not prove a direct and urgent relevance.”
Even taking the safety of the border area South Korean residents into consideration, the limiting of the citizens’ rights should be at a bare minimum, and though other means may be available to carry out proper restrictions, the criticism towards the ‘South-North Relations Bill’ as one that comprehensively and completely limits the information-dissemination activities into North Korea as an infringement on the essential meaning of the freedom of expression, cannot be avoided.
4. Other Miscellaneous Constitutional Infringements
A. The Right to Pursuit of Happiness, and the Infringement of the General Right of Freedom of Action
For any South Korean citizen, he or she has the full right to freely express his or her opinions in politics, economy, society, culture, and in all areas of life, and has the right to freedom of action.
However, the ‘South-North Relations Bill’ not only uses punishment to curtail the freedom of expression of both South and North Koreans, it also forbids the South Korean citizens from sending humanitarian goods such as food and medical supplies to the people inside North Korea. That is, the ‘South-North Relations Bill’ uses the term ‘leaflets, etc.’ in the bill to include other things besides leaflets such as flyers, goods (including advertisements and propaganda materials, printed materials, auxiliary memory devices, etc.) and money or other property profits for banning, including USBs drives or hard disks, rice, water, American dollar bills, to be punishable unless sent with the approval from the South Korean government. Furthermore, using a third country to move goods is also a punishable crime, so taking USBs containing South Korean music or TV shows through the North Korea-China border to send into North Korea without the permission of the South Korean government can result in punishment. Despite the fact that North Korea itself only took up the issue of the ‘anti-republic leaflet sending hostile acts’ through the military demarcation line, the ‘South-North Relations Bill’ forbids the North Korean defectors, who risked their lives to come to South Korea, from sending money to their family members in North Korea to cover their minimum living costs. In other words, this law is an evil law that pledges loyalty and allegiance to Kim Jong Un and Kim Yo Jong, and starves the North Korean people, and also it is an unconstitutional law that violates the right of the people to pursue happiness, and the essential contents of general freedom of action.
B. The Infringement of the Principle of Clarity
According to Article 12, Clause 1 of the Constitution of the Republic of Korea highlighting the principle of legality, the crime and the punishment must be clearly spelled out.
However, Article 25 of the, “A Partial Amendment to the Law on the Development of Inter-Korean Relations” clearly states that those who violate Article 24 will be criminally prosecuted, and uses an unclear understanding of Clause 1 of Article 24, in the form of “No one shall harm the lives or bodies of the people or cause serious danger by doing any of the following acts,” violating the principle of clarity according to the principle of legality as is spelled out in the Constitution. As a result, the possibility opens up whereby the executive administration carries out the arbitrary enforcement that could punish all acts that it considers dangerous.
5. Conclusion
The ‘South-North Relations Bill’ not only infringes on and violates the freedom of expression and the basic rights and fundamental essence as enshrined in the South Korean Constitution and the the standards of international human rights, but also clearly violates and infringes on the rights of the citizens by surrendering to the North Korean regime which is carrying out crimes against humanity, and its threats, thereby violating the Constitution of the Republic of Korea on the Guarantee of Basic Rights, and surrendering the sovereignty of South Korea. Denying access for the people of North Korea to outside information is a crime against humanity relegating our 25 million brothers and sisters to live forever under the world’s worst tyrannical system, and finally, it will be an indelible stain on the history of the Republic of Korea whereby the country’s national prestige will have been downgraded to that of a dictatorship and a backward country in human rights.
December 22nd, 2020
The Joint Representatives for the Constitutional Petition of the ‘South-North Relations Bill’
