Kim Soo A

This article covers a series of recent actions taken by the South Korean government restricting the freedom of opinion and assembly of its own citizens.

NHRC recommendations rejected 

On October 27, the all-member committee of the National Human Rights Commission of Korea (NHRCK) concluded that the Korean police had used excessive force and violated the rights of protesters, while dispersing the candlelight rallies against American beef imports.

The Commission recommended that the police strictly abide by defence guidelines prohibiting the misuse of fire extinguishers. It also called for a censure of the riot police commanders by the Korean National Police Agency (KNPA) Chief. The NHRCK in fact, gave a clear signal to the police that they should observe the minimum standards of their code of conduct, regardless of a protest’s legality. (The NHRCK’s recommendations are presented at the end of this article).

Sadly, the Commission’s findings and recommendations were met with an immediate and complete refusal to comply, from the government. In a press release two day later, the KNPA claimed that the Commission’s findings regarding the candlelight protests were partial. The KNPA said the findings were based on “a few exceptional cases of police abuse".

As before, the police parroted the press release, and claimed that they will protect and support a peaceful and legal protest, while firmly dealing with illegal and violent protests "in accordance with laws and principles".

During the parliamentary audit on November 3, Prime Minister Han Seung-soo and Justice Minister Kim Kyung-han also refused to accept the NHRCK’s recommendations, for reasons similar to that of the police agency. Interestingly, the Korean government gave the same opinion in response to Amnesty International’s final report, published recently and which confirmed the Korean police's use of unnecessary and undue force against protesters.

In a joint-fact finding mission report, the Asian Human Rights Commission (AHRC) and the Asian Forum for Human Rights and Development (FORUM-ASIA) expressed similar views regarding the policing of the candlelight protests (see HR Solidarity, August 2008). 

Additionally, what had been forgotten is the resignation this June of all 14 members of KNPA’s Human Rights Advisory Committee, to symbolically demonstrate their strong protest and concern over the excessive use of force by the police in dealing with the candlelight protesters.

To avoid such allegations by the police and to ensure the impartiality and accountability of its inquiry, for almost three months, the Commission had carefully inquired into about 130 petitions relating to the allegation of police abuse during the protests. It had also listened to the testimonies of both protesters and police and strictly dealt with relevant evidence, before arriving at its findings. The significant criticism from both inside and outside the country has fallen on deaf ears, however.

Worth noting is that South Korea's Act on Assembly and Demonstration—denounced by rights groups as excessively limiting the right of assembly—had been frequently abused by the police to label the candlelight protests as illegal and justify their arbitrary actions against protesters. Together with several negative provisions limiting the freedom of assembly, this Act includes the prohibition of any assembly to be held after sunset. The Constitutional Court of Korea is currently in the process of reviewing whether the Act violates the fundamental rights guaranteed under the Constitution.

The pronouncement rejecting the Human Rights Commission’s findings by the Prime Minister, Justice Minister and the police agency, amounts to condoning of serious violations of basic human rights by the police. It is also an expression of political unwillingness to deal with a matter of serious importance to the South Korean people. The right to demonstrate peacefully goes to the very heart of democracy; and to interfere with this right directly negates the South Korean people’s hard-fought battle against military dictatorships and authoritarianism.

The credibility of a national human rights institution lies in its capacity to deal with state authorities that violate rights. A national human rights institution that could not condemn the violations of rights by state agencies does not deserve to bear the name of a national institution for the protection of rights. The Paris principles on which the national institutions are built expressly say that the state should guarantee the independence of such institutions and respect this independence.

The Prime Minister and Justice Minister speak on behalf of the government. Therefore their rejection of the NHRCK’s recommendations will be seen as an attempt by the government to undermine the role and function of the Commission. Since the recommendations relate to taking serious action against errant police officers, such policemen are likely to view these high ranking government officials’ statement to mean that the government will not be carrying out the recommended measures.

Hence they, together with anyone who may in future engage in similar activities, may find encouragement and be emboldened to do so again. Discipline within the police force is thus likely to further deteriorate due to these comments.

The rule of law, democracy and human rights depend on high levels of the preservation of discipline within the police. Encouragement to errant policemen and discouragement of independent national institutions by the government will undoubtedly spread demoralization and pessimism throughout the country.

Two new laws of restriction

Two pieces of legislation have recently been submitted to South Korea's national assembly, their purpose clearly to restrict people's right to freedom of assembly and opinion. Both have been submitted by the Grand National Party, the country's majority ruling party, with the likelihood of being passed before the end of the ongoing legislative session on December 10, 2008.

It is of grave concern that the proposal of such regressive laws comes at a time when South Korea's police, justice minister and prime minister have refused to accept the NHRCK’s findings regarding police abuse of power during the candlelight protests.

The first piece of legislation is a "law on class-action lawsuits against illegal, collective actions"—initiated by 24 lawmakers from the ruling party. In the words of one lawmaker Sohn Beom-gyu, "This Bill does not restrict the freedom of expression and assembly," but rather aims at "establishing the rule of law and preventing social damages caused by illegal protests". This is a clear reference to the huge candlelight protests that rocked the government since May of this year.

According to the proposed Bill, "illegal collective actions" refer to all illegal acts such as assault, threats, damage to property, and incendiary behaviour, whether committed with intention or not, during an assembly or protest. When there are more than 50 complainants, the Bill allows for one or a few persons, as representatives, to file a class-action lawsuit against the protesters. Provisions of the Bill also allow for persons to be accused for aiding others to commit the so-called illegal acts. It also allows for the court's final decision to apply to persons not involved in the lawsuit.

Despite serious local criticism that this Bill is an attack on the candlelight demonstrations and will gravely violate freedom of assembly, the government is keen to pass it. In fact, Justice Minister Kim Kyung-han insisted, during the parliamentary audit on November 3, that such a law was a necessity.

The second piece of legislation is a revision of the criminal code, increasing penalties for online defamation and insult. Senior policy coordinator Chang Yoon-seok submitted this Bill, which will allow prosecutors to press charges for "cyber defamation" and "online libel". The proposed revisions include the assessment of up to nine years imprisonment or 50 million in fines for spreading information defamatory to others through the internet, regardless of whether it is fact or falsehod.

A similar amendment to the Act on Promotion of Information and Communications Network Utilization and Information Protection was submitted on October 31. That amendment includes an assessment of up to two years imprisonment or 10 million in fines for the online spreading of information defamatory to others.

More importantly, the proposed revision of the criminal code makes defamation an offence subject to prosecution without complaint. This would empower the police and prosecution to undertake investigation into instances of 'defamation' on their own initiative. They are also allowed to search computers and relevant data as well as summon persons as they see fit.

Amidst local criticism against such criminalization have been the voices of legal experts as well as the government's own National Assembly Research Service (NARS). A group of 228 legal experts, journalists and law scholars nationwide issued a press release on November 11, likening the proposed revision to a national security law for cyberspace. They also denounced it as a blatant attempt to silence political and social criticism via South Korea's vibrant online citizen media and a severe restriction of the freedom of expression.

Under Anglo-American law, defamation is not usually considered a criminal offence. Under continental law as exists in Germany, France or Japan, while a criminal provision for defamation exists, it is rarely used, and it is an offence subject to prosecution on complaint, with the maximum punishment being less than two years of imprisonment. According to a NARS report, China is at present the only country legally stipulating the criminalization of cyber insults, while among democratic countries, South Korea has the harshest policy pursuing criminalization of cyber insults.

Moreover, there are also doubts regarding the effectiveness of such criminalization. According to NARS, the majority of insults in cyberspace involve cursing, which can in fact be dealt with through filtering services. The need to develop a social and ethical consciousness amongst internet users in their teens and 20s, who represent a large portion of those committing cyber crimes, is more pressing than legal sanctions that could be avoided in roundabout ways.

Not only will the introduction of this new legislation violate fundamental rights protected by South Korea's constitution, but new means will also be available to the government to silence criticism and dissent. In the case of the candlelight demonstrations, police have already arrested several internet activists on charges of 'inciting illegal protests'.

Furthermore, these two Bills have been heavily pushed by the ruling party despite recent court decisions upholding the freedom of expression. In the prosecution of a 19-year-old student who sent a mobile message to his friends encouraging them not to go to school and to protest against American beef imports for instance, the court found him innocent of the charges of spreading false rumours with the purpose of harming public interest.

According to the court, his message simply expressed his personal opinion, while encouraging voluntary student participation in the candlelight protests. The ongoing investigation and prosecution of several candlelight protesters has already been broadly criticized by rights groups as an attack on the freedom of expression and assembly. If these two laws are introduced, room for expression and protest will be significantly reduced and will adversely affect democracy within the country.

Essential

For South Korea to maintain its dynamism and its vigorous democracy, strict democratic discipline for law enforcement agencies is essential. Once again South Korean civil society and the country’s legal community, in particular lawyers, judges and others should step forward to ensure that the recommendations of the NHRCK are implemented by the government. The Prime Minister and Justice Minister must be held accountable for their statements, and strong critique of such statements is necessary if the rights of the people are to be respected.

Furthermore, the government and the ruling party must withdraw these Bills and safeguard the freedoms guaranteed by South Korea's constitution, as well as the International Covenant on Civil and Political Rights (ICCPR), to which it is a state party. Its obligations as a member of the UN Human Rights Council should also be kept in mind.

The international community, including the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, should also consider taking this matter up with the government of South Korea.

Finally, the recommendations of the NHRC (unofficial English version)—which have been rejected by the government are worth consideration:

1. The Commission concludes that on some occasions during the candlelight rallies, the police suppressed the protesters in excessive and aggressive manners, which led to the violations of their rights, for example the wounding of some protesters. Therefore, the Commission recommends the Minister of the Public Administration and Security to give a warning to the National Police Agency Chief in accordance with the chain of command responsibility. 

2. The Commission recommends the National Police Agency Chief to instruct the police to strictly abide by defensive guidelines (as oppose to offensive actions) during protests in order to protect the security of citizens and prevent human rights abuses.

3. The Commission recommends the National Police Agency Chief to censure the chief commander of the riot police as well as the 4th riot police division commander attached to the Seoul Metropolitan Police Agency, in accordance with the chain of command responsibility, regarding the human rights abuses that occurred during the suppression operation at around the Angook-dong Rotary in the morning of June 1, 2008 and Taepyeongno and Jongno around midnight of June 28, 2008, respectively.
  
4. The Commission acknowledges that the protesters, the residents nearby and many passers-by of the protest area suffered due to the police’s extensive blockage of traffic. The Commission therefore recommends the National Police Agency Chief not to restrict traffic unless it is confirmed to be involved with the protest. 

5. The Commission recommends the National Police Agency Chief to make a legal regulation higher than a ministerial ordinance, which defines the specific use of water cannons, for example the maximum water pressure and the minimum range, as it may cause serious injury to a person.  

6. The Commission is concerned that when the police use fire extinguishers in dispersing protesters, the fire extinguisher gas may cause harm to persons and its use creates a smoke screen that can hide the riot police's acts of violence and encourage the violence. Therefore, the Commission recommends the National Police Agency Chief to instruct the police not to directly spray the fire extinguisher at persons and restrict its use for the purpose of firefighting.

7. The Commission recommends the National Police Agency Chief to take measures to prevent riot police from the throwing of objects, as this causes high risk for the unarmed protesters.

8. The Commission recommends the National Police Agency Chief to stop the police' practice of extracting reflective statements from arrested protesters in violation of The Act on Assembly and Demonstration.

9. The Commission recommends that the National Police Agency Chief ensure riot police wear name tags on their uniforms as well as riot gear so that they can be easily identified