“‘The principle of clarity,’ an expression of the principle of a constitutional state, is required for all legislation restricting basic rights. If a criminal cannot know what is prohibited and what is allowed in accordance with the meaning of norms, this will lead to weakened legal stability and predictability and enable arbitrary enforcement by law enforcement authorities.”

—  Compilation of Judicial Reports 14-1, 1, 8., 2000hun-ga8, Jan. 31, 2002, Constitutional Court

The “principle of clarity” mentioned above means that people must be able to clearly understand what is illegal or legal from what is said in laws. As an example of the principle of clarity, the UN Commission of Inquiry (COI) pointed out the ambiguity present in the North Korean Criminal Code. The COI’s report, which was released in February 2014, says that “those who illegally cross the border are regularly considered to have committed ‘treason against the Fatherland by defection’ under article 62 of the Criminal Code. This crime is punishable by a minimum of five years of ‘reform through labor.’ Illegal border crossers are alternatively charged under another of the vaguely defined ‘anti-state or anti-people crimes.’” The Ministry of People’s Security (MPS, now called the Ministry of Social Security) reportedly issued a decree in 2010 making the crime of defection a “crime of treachery against the nation.” Therefore, the COI recommended that North Korean authorities “reform the Criminal Code and Code of Criminal Procedure to abolish vaguely worded ‘anti-state and anti-people crimes.’” Thus, there is a serious concern that the lack of the “principle of clarity” in North Korea’s Criminal Code frequently leads to “arbitrary detention,” which is considered a crime against humanity.

Failures to observe the principle of clarity in laws are typically found in countries where the rule of law is not adequately established. However, it is hard to believe that an amendment ignoring the basic principle of the rule of law – the principle of clarity – has been proposed in a democratic country like the Republic of Korea. In fact, the principle of clarity was ignored in a recent amendment made to the Development of Inter-Korean Relations Act, which was passed by South Korea’s National Assembly on December 22 by approval of 187 members. The deliberations that were held before the passing of the law centered around the amendment’s addition of Article 24, which concerns the “prohibition of violations of inter-Korean agreements.”

Amendment to the Development of Inter-Korean Relations Act

Article 24 (Prohibition of Violations of Inter-Korean Agreements)

① No one may harm or generate serious risk to the life and body of the people by acts that fall under any of the following subparagraphs:

  1. Loudspeaker broadcasting to North Korea in the area of the Military Demarcation Line
  1. Posting of visual media (posters) about North Korea in the Military Demarcation Line area
  1. Spreading leaflets or other items

The reason why the above three acts are criminalized is because such acts are said to harm or generate serious risk to the “life or body of the people.” However, loudspeaker broadcasting, posting visual media, or spreading leaflets or other items does not generate any harm or serious risk to the lives of the people. That risk is instead generated by North Korean authorities, who have become angered by such acts and have conducted provocations toward the South at the DMZ. As a case in point, suppose a North Korean escapee sent money to a family member in North Korea who requested it. Although this is common practice among North Korean escapees, the act of transferring money to North Korea through another country is, under the new amendment, equal to spreading “leaflets or other items” to North Korea and is thus prohibited and criminalized. The North Korean authorities could react badly and decide to heighten tensions between the two Koreas by firing long-range guns stationed around the DMZ. In addition, if a slanderous statement is released by North Korean authorities – denouncing the South Korean government for failing to prevent “espionage” committed by North Korean escapees, for example – sending money to the North could, based on the wording in the new amendment, also be punished as an offence.

North Korean leader Kim Jong Un (left) and South Korean President Moon Jae In announcing the Panmunjom Declaration during the Inter-Korean Summit April 27, 2018 in Panmunjom, South Korea /
Image: South Korean Joint Press Corps

If North Korean authorities conduct military provocations along the DMZ, how can we find out which exact act led to a reaction by the North Korean authorities? How would one prove a causal relationship between a specific provocation by North Korea and prohibited activities such as spreading leaflets or other items to North Korea? If the North Korean authorities were to announce that an artillery attack was conducted in retaliation for a South Korean missionary group secretly sending 100 USB drives across the Sino-North Korean border, would that missionary group’s activists then be prosecuted in court and punished by South Korea?

Another question arises from the amendment’s claim that such acts may cause “harm or generate serious risk to the life and body of the people.” Although it may be seen as an over-interpretation, the amendment has made the above three acts illegal because they could potentially cause North Korean provocations. If so, would that not transfer accountability for North Korean provocations from the North Korean authorities to an individual or activist group in South Korea? The question arises as to whom is accountable for the innumerable military provocations that North Korea has made thus far. Is it not those who have threatened to turn Seoul into “a sea of flames”?

Was such a vague and problematic legal amendment really the best way to cope with the leaflet issue, particularly given that sending leaflets across the inter-Korean border has long lacked support from civic organizations fighting for North Korean human rights? After being approved by 187 lawmakers, the amendment now requires official approval from President Moon Jae-in to be implemented. This begs the question: What has happened to the rule of law in South Korea?

Views expressed in Guest Columns do not necessarily reflect those of Daily NK.

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