The Confederation of Lawyers of Asia-Pacific on examining  the Constitutional and legal implications of   the National Security Law of the Republic of Korea ( South Korea ), including the history of this statute  from 1948 , and  the  implementation of the law in diverse cases , is of the opinion  that :

1.The National Security Law ( 2016) of the Republic of Korea ( South Korea), and  earlier versions and amendments , including the law as  adopted in 1948, 74 years ago , as a ‘special’ and ‘temporary’ measure , is an unjust, archaic, outdated, and unconstitutional law based on the Japanese Colonial Act, the ‘ Law for the Maintenance of Public Security’ drafted by the Imperial Government of Japan ,  for Japan’s   ‘ Korean colony’, depriving  the Korean people of all rights and civil liberties . Upholding this colonial law, is to violate  the sovereignty of  the Republic of Korea , of  the people of Korea, and  the   Constitution   of the Republic of Korea,  as this  law   is a permanent symbol of the subjugation of Korea by Imperial and militarized Japan, a  legacy of   Japanese  colonial rule  and military occupation . The National Security Law is  rooted  not only in the colonial history of Japan , the law   dates back to the period of   the   brutal Korean War during which  more than 3 million Koreans were massacred and  were  also   victims  of  biological warfare. Several cities of the Korean peninsula were   destroyed by massive and cruel bombing operations and millions of Korean families forcibly separated. From 1948 citizens of the Republic of Korea were unjustly imprisoned, tortured and executed, using this unconstitutional and unjust law; their lives and livelihood and those of their family members destroyed. The NSL  is also a legacy of    the  period of the  ‘ Cold War’ , which concluded  in 1991.

2. The National Security Law is not seen by the people of the Republic of Korea as a legitimate law for protecting the national security of the Republic of Korea. In determining the constitutionality of the National Security Law, the Honourable  Constitutional  Court of the Republic of Korea is required to carefully consider the nature of this law, whether the articles are vague, open ended , arbitrary and  draconian, with the potential for  abuse; and  whether  these articles have been interpreted and enforced by the police and intelligence agencies to suppress legitimate and democratic dissent, criticism and organization, without which no democratic society can survive. The unconstitutionality of the law and its real   ‘intent’ is to be determined by examining the constitutional implications of the statute, the articles of the statute, and the manner in which the National Security Law has been enforced from 1948. In 1949, 80 percent of the total number of 118,620   Koreans arrested, were detained and imprisoned under this law, many were executed, as this law provided for executions under almost 40 provisions of this Act, though in recent years the death penalty has not been  imposed .
3. The failure of the Constitutional Court of the Republic of Korea to declare the National Security law and its articles as  unconstitutional, and the failure of the political executive and the National Assembly to abolish the National Security Law,  has led to the  conclusion by citizens of the Republic of Korea, that the Constitutional Court  and all institutions of  the State view the National Security Law as ‘de facto’ higher and above the Constitution, despite the fact that this law was never adopted democratically in 1948, as Korea was not  then   a functioning  Republic . Similarly the  procedure  adopted  for  revising and amending the law was  “ unconstitutional , unlawful and undemocratic  ……. Some revisions were made by the military junta when the Republic of Korea ceased to be democratic ….and one amendment was made when the opposition members were placed under house arrest.”
4. After reviewing several cases in which the National Security Law was used to arrest and imprison innocent citizens , we agree with the observations of Professor Park Won Soon, a human rights lawyer and Chair of the Executive Committee of the PSPD, who has rightly observed in a detailed and intensive report on the nature , content, and implementation of this law including the subsequent  amendments and  revisions, that the: National Security Law” has cast a dark shadow on every aspect of political , social and even artistic life of the Korean people …… the press and TV media , the academic space in the university, including lectures , plays , poetry , paintings and films are all targeted.”
5. 5. Significantly the Human Rights Commission of the Republic of Korea, a statutory independent commission, in 2003 appointed a Committee of Experts, to study the National Security Act and its implementation. This Committee appointed by the Human Rights Commission of the Republic of Korea, after a year and a half of   in depth study of the National Security law , after consulting  experts from diverse institutions and organisations  in the Republic of Korea , submitted a report in 2004 , to the  then 10 member National Human Rights Commission of the Republic of Korea, recommending the abolition of the National Security Law  in its entirety , as an unconstitutional statute which had been misused by individual officials and police and intelligence
6. The then 10 member National Human Rights Commission of the Republic of Korea, studied the report of the aforesaid Committee of Experts; held further consultations with individuals ,  institutions and organisations , and   arrived at an independent and objective finding, with 8 of its 10 members recommending by an overwhelming majority, the abolition of the National Security law. The recommendations of the National Human Rights Commission of the Republic of Korea was placed before the National Assembly and the Ministry of Justice, for implementation of the report inter alia   on the grounds of unconstitutionality  of the  law and  abuse  of its vague and arbitrary provisions  ; the other 2 members recommended amending the NSL.
7. In view of the recommendation of both the National Human Rights Commission of the Republic of Korea and the Expert Committee appointed by this Commission, recommending that the National Security Law should be abolished on the grounds of unconstitutionality and that the   provisions of the statute  are also unconstitutional , arbitrary , draconian ,  vague, and   open to abuse  ; we are of the opinion that  earlier decisions of the Constitutional  Court of the Republic of Korea  upholding the National Security Law  are “ Per Incuriam ,” which is  a principle of jurisprudence  applicable  to Judgments of the highest Courts including  Constitutional Courts  , in cases  where the Courts have  not  carefully considered all aspects of the case before the  decision, on   facts and   the  law or constitutionally. The dictionary meaning of the word is ‘carelessness”; however we as lawyers without any disrespect to the Honourable Constitutional Court  of the Republic of Korea, base our finding on the juridical principle  of “ Per Ingnoratium , ” which  means, that the learned Judges of the Constitutional Court  in previous cases in which the constitutionality of the NSL  and its articles were impugned, proceeded to  decide the issues ignoring the unconstitutional nature of the  law, and the evidence  relating to abuse of its vague , arbitrary  and  open ended provisions .In view of the authoritative report of both the Experts Committee and the Human Rights Commission of Korea submitted in 2004 to the Ministry of Justice and the National Assembly , the Constitutional  Court of Korea ought to have considered these detailed  reports of legal experts  as legally and jurisprudentially  authoritative and final  .Since   the  Constitutional Court   ignored two  authoritative reports  of the National Human Rights Commission and the Expert committee  established by this Commission  on the unconstitutionality of the NSL, and the manner in which it was being unjustly enforced due to its vague and wide  provisions ; and proceeded to pass judgment upholding the NSR ; the previous decision or decisions of the Constitutional Court  fall under “ the spectrum of the juridical principle of  Per Incuriam,” and should not be followed . This is an essential   principle of jurisprudence, evolved as a check and balance on the highest courts, including Constitutional Courts, applicable both to   common law or civil law systems among others, to ensure that even the Constitutional  Courts do not ignore relevant and vital facts and the Constitution, and apply the law correctly. No court or institution, not even the Constitutional Court, is above the Constitution in a Democratic Republic. This principle ensures that erroneous and unjust judgments of the highest Courts including the Constitutional Court are   overturned.
8. With due respect to the Honourable Judges of the Constitutional Court, whereas they have heard individual cases impugned under the National Security Act; the learned Judges have not sat as an investigative statutory body  of experts to study the impact of the National Security Act on citizens, society and the state in the Republic of Korea. Deciding the merits or  de-merits of an individual case on the issue of unconstitutionality of the Act and its articles and provisions, is inadequate for the purpose of assessing the NSL as a whole; as against a  Commission , which is a  body of experts ,  studying the nature of the NSL and the abuses in its implementation. The investigation in 2003 was conducted   both by a special committee appointed   by the National Human Rights Commission and the Human Rights Commission which is  a statutory body . No mala fides have been attributed to the National Human Rights Commission   or to the Expert Committee appointed by the National Human Rights Commission recommending abolition of the NSL .The report of the National Human Rights Commission was presented   to the National Assembly and to the Minister for Justice,   in  2004 . This   report was at all times   available to the Constitutional   Court.
9. With reference to the specific articles and provisions impugned in the petition before the Constitutional Court ,  the words” anti-state organization” in Article 2 of the National Security Law; the words “  democratic fundamental  order” in Article 7 (i),  and the stipulation in Article 7 ( i)  “ praise , incites, propagates  “, among other provisions of the statute , are prima facie vague , excessively wide, arbitrary, open ended, subject to abuse and  misinterpretation , and severely restrict the freedom of thought, expression, association , movement,  assembly and democratic  action . This has been repeatedly highlighted by the United Nations Human Rights Council, the UN Human Rights Committee, Special Rapporteurs,   and   Human Rights organizations, recommending   that the National Security Law should be immediately repealed.
10. The clear and present danger of the law being misused, is evident in the actual application of the National Security Law. According to the Ministry of Justice of the Republic of Korea, there were 3,896 cases of violation of Article 7 out of 6,611 cases, between 1995 and 2019. This is due to the overly broad and unrestricted definition of the words” praise, encourage, promote, sympathise with or incite or propagate ‘ of  Article 7  and  other provisions of the NSL
11. The National Security Law has been used to suppress democratic dissent by successive governments.  Articles 2, , 3, 4 , 5, 6 ,7,  and 8 among several other   articles of the NSL ,  prima facie violate the Constitutional rights of the people of Korea,” to freedom of thought, freedom of association, freedom of expression and the right to liberty”, as in the period of the Japanese occupation of Korea, though to a lesser degree; “freedom of personal ideology and philosophy, freedom of conscience, freedom of peaceful assembly, the right to political participation, the right to freedom of movement, the right to privacy and the right to labour, as well as the prohibition from torture and the right to humane treatment in prison” have been suppressed under this law. The secret police have “ routinely conducted illegal and criminal acts of torture involving interrogation methods tacitly approved by the judiciary…..those indicted were often denied due process”

A few examples will suffice to indicate the misuse of the National Security Law:

1. Examples of reasons for arrest under the NSL.
2. a) Posting articles praising the Democratic Republic of Korea, on a website;
3. b) An online bookshop possessing a book, marketing a book, or publishing a book on DPRK ideology;
4. c) Sharing books or information on DPRK ideology on the internet;
5. d) Restrictions on attendance at private meetings attended by DPRK persons, even those officially visiting South Korea;
6. e) Members of organizations discussing economic and political policies of the Republic of Korea ( South Korea) , even those who may have criticised the DPRK ,have also been investigated and arrested under this Act; the cases of :” Capitalism Research Society” , “ Peoples Solidarity for Participation in Democracy( PSPD)” and “ Socialist Workers League.”
7. f) Citizens of the Republic of Korea duly authorised by previous governments to attend cultural and other events in the DPRK were investigated and arrested by subsequent governments.
8. g) Members of any organization can be labelled as communist followers, without any proof of activity and punished for being members of a communist association.
9. Examples of a few court cases relating to the NSL.
10. i) Drawing a picture in praise of the DPRK , considered a violation of

Article 7 :” the Rice Planting( Monaeki) “Case( 1998);

1. ii) Re-tweeting negative comments in South Korea about President  Kim Jong –Un’s  visit , considered a violation of Article 7 : “ Twitter Joke” Case

( 2012);

iii) Teachers forming a group to learn about Korean unification:” KTU Teachers “Case ( 2013)

1. iv) Singing an anti-American song against the liberal democratic order:” The Revolutionary Song” Case (2015);
2. v) Publication of a book about President Kim Il Sung was considered an act benefiting the enemy: “With the Century” Case ( 2021); among several other cases.
3. 12. The Preamble of the Constitution of the Republic of Korea declares as one  of its objective :

  “…the  mission   of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice, humanitarianism and brotherly love….”

Article 4 of the Constitution of the Republic of Korean mandates that  :

“The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy.“

 The reality is that the National Security Law of the Republic of Korea , its articles and the manner in which this law is enforced, defeat the constitutional mandate  of the Preamble and  Article 4 , “ to seek unification and …formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy “, in so far  as the  definition of “ ‘anti-state organisation’ in Article 2 of the NSL  and most of the  activities proscribed  by  the NSL , are directed against the DPRK, with any and every activity interpreted under articles 2, 3, 4, 5, ,6 , 7 , 8 , among several other articles , as activity intended to associate with , join or collaborate, supply information to, receive assistance from or otherwise associate  with the DPRK. The establishment of a Ministry for Unification in the Republic of Korea has not in any way diminished the misuse of the NSL even to persecute citizens for possessing a book or writing an article on the DPRK, if the article or book is not inimical to the DPRK. We are of the opinion that the National Security Law is not in conformity with the objectives of the Constitution of the Republic of Korea on Unification and the Ministry of Unification and that the National Security Law defeats the Constitutional goal of’ peaceful unification’ with “justice, humanitarianism and brotherly love “

13. The Republic of Korea is a signatory to and has ratified the International Covenant on Civil and Political Rights. Article 6 (i) of the Constitution of the Republic of Korea (South Korea) mandates that:

“Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as domestic laws of the Republic of Korea.”

Despite the Republic of Korea having acceded to the ICCPR, which is a multilateral treaty, the Republic of Korea has not abolished the National Security Law, which is against the substance and spirit of the ICCPR and violates several articles of the ICCPR. In 1992 the UN Human Rights Committee charged with overseeing the implementation of the ICCPR by state parties observed in the context of the National Security Law of South Korea : “a serious attempt be made to phase out the National Security Law which this committee perceives as a major obstacle  to the full realization of rights enshrined in the Covenant “. In 1999 the Human Rights Committee with reference to the NSL of the Republic of Korea concluded:” the restrictions placed on the freedom of expression do not meet the requirements of Article 19 of the ICCPR, as they cannot be regarded as necessary to the protection of National Security.”

In November 2006 on reviewing the situation in the Republic of Korea (South Korea), the UN Human Rights Committee expressed concern that: “Prosecutions continue to be pursued under Article 7 of this law. The Covenant (ICCPR), does not permit restriction on the expression of ideas merely because they coincide with those held by an enemy entity or may be considered to create sympathy of the entity. The Committee also emphasised, that internal directions regarding prosecution policy do not provide adequate guarantees against the use of Article 7 in a manner that is incompatible with this Covenant (ICPPR).

In May 2008, the UN Human Rights Council’s Working Group,   reviewing  South Korea’s performance, recommended that the government of the Republic of Korea  “take concrete steps to  abolish the National Security Law .”

In 2010 the UN Special Rapporteur for Freedom of Opinion and Expression, Frank La Rue  at the end of a visit to the Republic of Korea, expressed concern   at the “shrinking space for freedom of expression in the Republic of Korea, primarily also to the new and more restrictive interpretation and application of existing laws..” calling for the abolition of Article 7 in his report to the UN Human Rights Council.

In 2016 the UN  special rapporteur on the Rights to Freedom of Peaceful Assembly and Association , Maina Kiai, in his report observed : “the National Security Act has been used by different regimes to silence civilians…” that the “provisions of this law leaves open the possibility of its use in a repressive manner.” This rapporteur recommended the abrogation of Article 7 of the NSL

In 2022, the  UN special  rapporteur  on the Promotion of Truth, Justice, Reparation and Guarantees of Non-occurrence,  Fabian Salvioli, in his interim report  called upon the Government of South Korea to :“ reform the legal institutional framework of  institutions to fully comply with international standards including the abolition  of Article 7 of the National Security Law which has been at the centre  of many  human rights violations of the past and remains in force .”

14. The Journalists Association of the Republic of Korea in their public statement in 2007, emphasised : The National Security Law , reduced the status of the Republic of Korea , to a third world country due to its infringement of human rights .”
15. In the above context, it is significant that the Democratic Peoples’ Republic of Korea (North Korea), does not have such a draconian National Security Law.
16. In view of the aforesaid, it is our considered opinion, that the National Security Law and its articles, have no constitutional “legitimacy either procedurally or in substance “, despite amendments. The National Security Law is not a bona fide statute for defence of national security interests of the Republic of Korea, and has been used   to suppress citizens of the Republic of Korea and deny them constitutional rights and civil liberties. The  NSL as a whole and articles  2 ,3, 4 ,5, 6, 7 , 8, of the NSL  specifically among other provisions  of the statute  are too wide , vague, unreasonable, arbitrary , draconian , open ended , subject  to abuse, have been abused  ,  and prima facie  violate  the Preamble and Articles  4 ,6, 7, 8 ,9 ,10 ,11 ,12 ,13, 14 , 15, 16,17, 18, 19, 21, 22, 25 and 28   of the Constitution of the Republic of Korea .

September 2022

Confederation of Lawyers of Asia and the Pacific (COLAP)
20-4-906, Araki-cho, Shinjuku-ku, Tokyo, Japan 1600007

Secretary General of the Confederation of Lawyers of Asia and the Pacific
Jun  Sasamoto

Vice President Confederation of Lawyers of Asia and the Pacific
Niloufer Bhagwat