There was a period in the past when many rights including fair trial and the freedom of opinion and expression was heavily restricted by both authoritarian and military dictatorship governments. Those who attempted to enjoy such freedoms suffered from long periods of imprisonment in comparison with general criminal offences or even the death penalty. Constraints of their liberties were justified by way of the process of legal framework. For long periods of such practice, the role of judiciary did nothing to justify such laws. It was out of the question about the legality or constitutionality of such law. The law is called the National Security Act (NSA).
It is well known analysis that the application of the NSA and such propaganda worked very well and was used for political benefit for the then government under the political situation on the Korean Peninsula at that time. The more the NSA was used, the more people got scared off and as a result, more people became victims of the Act. Those who were convicted under the Act received not only criminal punishment but their family members also suffered social and economic discrimination.
There were people who brought these cases to the UN Human Rights Committee (HRC) through individual communications. The views from the HRC were that the government of South Korea had violated the rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which it is the state party. The HRC also recommended that the government take necessary action to provide remedies to the victims and further amend or abolish the NSA. However such views remain unimplemented.
Despite the heavy criticism of human rights violations by the use of the NSA from local and international rights groups and international communities, the Act has succeeded in surviving even during the civilian government after the period of authoritarian and military dictatorship without having those articles restricting human rights removed or abolished. Whenever such criticism was received at international forums the government’s response to the international community was that because of the military confrontation in the Korean Peninsula such an Act was necessary to keep peace and order and national integrity. This same argument has been made for decades.
However, with the repetition of this argument the government has been getting less support from the international community since it took its original position years ago. Most recently the government’s position with regards to the NSA can be found at the second cycle of the Universal Periodic Review process which took place on October 25, 2012. According to what is available so far from the draft report from the working group, it shows little improvement from its repetition of argument as follows:
“54. Given the military confrontation in the Korean Peninsula, the importance of national security has been emphasized. The revision or abolition of the National Security Act would require public consensus. The Government was strictly interpreting and applying the law to prevent the National Security Act from being abused or arbitrarily interpreted. Article 7 of the Act did not apply to those who simply praised or supported the claims of an anti-government organization. Therefore, the law cannot be seen to be violating the fundamentals of academic freedom or freedom of expression. The average number of persons detained for violating the National Security Act each year in the last five years steadily remained at around 20.” (Emphasis added)
Despite the explanation provided at the international forum, one particular case out of many has drawn the attention of the international community. Mr. Park Jeong-gun was arrested and detained on January 11, 2012 and charged with National Security Act at the end of the month. The charge was for his re-tweeting the message “long live Kim Jong-il” from North Korea’s official Twitter account. According to him, it was done as sarcasm and meant to ridicule North Korea’s leaders (for details: AHRC-FPR-006-2012).
In the court proceedings of Mr. Kim’s case, the total number of messages found in Mr. Park’s tweeter account was about 72,051. The prosecution services selectively chose 384 messages which accounts for 0.5 percent as ‘enemy-benefiting’ messages in violation of the NSA.
The prosecution service demanded two years of imprisonment from the Suwon District Court on October 11, 2012. It provided the reason of weighing of offence by saying, “Mr. Park’s behaviour of re-tweeting messages of praising and propagating North Korea should not be seen as a fun and the tweeter has significant level of spreading capacity so that it is highly dangerous to the society if any enemy-benefiting materials are uploaded.” It also added, “even though it might have done as a fun, it violates national security act as the messages Mr. Park re-tweeted may be seen as enemy-benefiting materials when people see them for the first time.” The court is scheduled to deliver its decision on November 21, 2012.
The representative of the government who attended the UPR process might have not known this case due to his ignorance although this case has become well known and widely published even internationally. It was also reported through the submission of a non-governmental organisation and well summarised by the Office of High Commissioner for Human Rights before the UPR process on South Korea was made.
The explanation made by the government at the international forum, “…strictly interpreting and applying the law to prevent the National Security Act from being abused or arbitrarily interpreted. Article 7 of the Act did not apply to those who simply praised or supported the claims of an anti-government organization. Therefore, the law cannot be seen to be violating the fundamentals of academic freedom or freedom of expression…” is not ignorance at all but a lie, the banality of a lie.
