South Korea has been caught in an intensive debate over the repeal of the draconian National Security Law (NSL) by the ruling Uri Party. On 21 September 2004, Chairwoman of the opposition Grand National Party, Park Guen-hye and Chairman of the ruling Uri Party, Lee Bu-young participated in a public over the abolition of the National Security Law at the Asia-Europe Press Forum in Seoul. In a country, which is officially still at war with North Korea, the conservatives have been trying to raise red herring to stymie South Korea’s march towards a truly democratic country. In its attempt to block complete abolition of the NSL, Chairwoman of the opposition Grand National Party, Park Guen-hye suggested amendment of the NSL.

Earlier, on 24 August 2004, the full Commission of the National Human Rights Commission of Korea in a majority decision of 8 in favour of abolition and 2 against recommended to Chairman of the National Assembly and the Minister of Justice to completely abolish the National Security Law. The NHRC’s Chairman Kim Chang-kuk stated "The current National Security Law has caused constant disputes over its acts against human rights due to its arbitrary application and the shortfalls of its regulations themselves…. amendments on certain texts could not heal the human rights violations on a large scale done by the National Security Law."  The NHRC further stated that existing criminal laws could deal with the current situation.  In January 2003, the NHRC of Korea had formed a task force team to study the NSL. After three sittings, the NHRC decided to recommend repeal of the NSL.

The Act and its provisions

Adopted in 1948 as a temporary measure to counter the threat posed by North Korea, the NSL at the time of its adoption contained only 6 clauses. After seven amendments without a national consensus, the number of clauses have increased to 25. The maximum sentence in the first revised NSL was life sentence, but now, a large number of provisions carry maximum penalty of death.

The NSL provides for long prison sentences or the death penalty for undefined "anti-state" and "espionage" activities. These provisions have been used arbitrarily against political opponents and innocents for peacefully exercising the right to freedom of expression and association. Article 3 of the NSL provides for "capital punishment or imprisonment for life" for "a person who is engaged in the function of a ringleader" or "a leading member" of an "anti-government organization". Most arrests have been made under Article 7 for "praising" and "benefiting" the enemy (meaning North Korea) and carries sentences up to seven years' imprisonment. Contacts with North Koreans and exposure to communist ideologies are strictly forbidden under Article 9. The failure to inform the police or security officials about anti state activities could invite maximum five years in prison or a fine of 2000,000 Won (Korean national currency) under Article 10. The NSL also provides for establishment of special rules of detention, interrogation and substantive liability.

In its Concluding Observations (CCPR/C/79/Add.114) in 1999, the United Nations Human Rights Committee monitoring implementation of the International Covenant on Civil and Political Rights after examination of South Korea’s periodic report stated that the establishment of special rules of detention, interrogation and substantive liability that are incompatible with various articles of the Covenant, including articles 9, 18 and 19. The Human Rights Committee further stated, “the scope of activities that may be regarded as encouraging "anti-state organizations" under article 7 of the National Security Law is unreasonably wide. From the cases that have come before the Committee in individual communications under the Optional Protocol, and other information provided on prosecutions brought under article 7, it is clear that the restrictions placed on freedom of expression do not meet the requirements of article 19, paragraph 3 of the Covenant, as they cannot be regarded as necessary to protect national security. The Covenant does not permit restrictions on the expression of ideas, merely because they coincide with those held by an enemy entity or may be considered to create sympathy for that entity. The Committee also emphasised that internal directives regarding prosecution policy do not provide adequate guarantees against the use of article 7 in a manner that is incompatible with the Covenant”.

The United Nations Human Rights Committee repeatedly urged for the repeal of the NSL. After examination of initial report in July 1992, the Human Rights Committee recommended that “the State party 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 made to phase out the National Security Law which the Committee perceives as a major obstacle to the full realization of the rights enshrined in the Covenant and, in the meantime, not to derogate from certain basic rights". In its Concluding Observations (CCPR/C/79/Add.114) in 1999, Human Rights Committee reiterated its grave concern expressed after consideration of the initial report regarding the continued existence and application of the NSL and urged to repeal the same.

The NSL has become synonymous of repression by the military dictators. The precise number arrests and prosecution under the NSL are not available. In 1949, one year after the NSL was enacted, 80% of the 1,18,621 criminal arrests involved NSL violations. However, much of the information about the NSL is reportedly missing and a statistical analysis of the NSL cases prior to 1964 remains unavailable. Many of the prisoners include persons who have been in jail over 40 years.

In 1998, President Kim Dae-jung government released over 150 political prisoners in two prisoner amnesties, but only on condition that they sign a "law-abiding oath". Seventeen National Security Law prisoners held for between 28 and 40 years were not released because they refused to sign the law-abiding oath. They included Woo Yong-gak, aged 69, who was in prison since 1958; and Hong Yong-gi, aged 69, who was in prison for 36 years. These elderly long-term prisoners were reported to be in poor health, having suffered decades of imprisonment in poor conditions and with little access to the outside world. Other prisoners who were not released included Cho Sang-nok and Kang Yong-ju who were convicted under the National Security Law in 1978 and 1985 respectively; and Ahn Jae-ku, aged 65, who was arrested and convicted in 1994. In August 2002, South Korea gave amnesty to more than 3,500 prisoners.

Conservative judiciary

The Supreme Court and Constitutional Court of South Korea continues to be dominated by the conservatives. In a judgement on 26 August 2004, the Constitutional Court upheld the constitutional validity of the NSL and stated that it was needed.

On 19 September 2004, the Supreme Court rejected appeals from two student activists who were convicted on charges of publicly praising North Korea. The judges upheld a lower court conviction of two former members of Hanchongryon, a leftist university student group, for violations of the NSL. The two student activists including one Mr Lee were sentenced to prison for 30 months.

Yet, what was most striking about the Supreme judgment was unusually strong and politically loaded commentary. The Supreme Court ruling said: "Just because there are exchanges and cooperation between the two Koreas, the Supreme Court cannot see that North Korea's anti-state character has disappeared and that the National Security Act has lost its legal power…..Under such conditions, we must be careful not to disarm ourselves."  The Supreme Court further stated that more citizens of South Korea were siding with the North, adding that there must be limits in acceptance and tolerance of the North to defend South Korea's order. It was clear that the Supreme Court was stepping into the functions of the legislative and executive.

The Uri Party has a majority 152 seats in the parliament and does not require cooperation of the opposition Grand National Party to repeal the NSL. While the Grand National Party is hell-bent to exploit the threat from the North Korea, South Korea needs to take decisive steps not only for reunification of the peninsular but to be a model state in the Asia and Pacific region for protection and promotion of human rights and fundamental freedom. The repeal of the NSL is indispensable in this regard.