Constitutional Court's First Public Hearing Today on National Security Act's 'Possession and Distribution of Pro-Enemy Materials' Clause

Yoo Nam-seok, Chief Justice of the Constitutional Court, and Justice Lee Seon-ae, 2018 Ruling on 'Possession of Expression Punishment' Unconstitutional
Increase in 'Unconstitutional Opinions'... Han Dong-hoon "Cannot Leave It to the Free Market of Ideas"

Officials from the People's Action for the Abolition of the National Security Law held a press conference on the morning of the 6th at the Press Center in Jung-gu, Seoul, urging the Constitutional Court to rule Articles 2 and 7 of the National Security Law unconstitutional. [Image source=Yonhap News]

[Asia Economy Reporter Heo Kyung-jun] The Constitutional Court will hold a public hearing on the 15th to decide the constitutionality of the 'National Security Act provisions' that prohibit possession and distribution of pro-North Korean propaganda materials. This is the first time that the National Security Act provisions have been subject to a public hearing by the Constitutional Court.

The Constitutional Court will conduct the hearing on the constitutional complaint and constitutional review request related to Article 7 of the National Security Act at 2 p.m. on the same day. The subjects of the review are Article 2 Paragraph 1, Article 7 Paragraphs 1 and 5 of the National Security Act. Article 2 Paragraph 1 defines a "anti-state organization" as "a domestic or foreign organization or group with a command and control system, aiming to impersonate the government or overthrow the state."

Article 7 Paragraph 1 stipulates that "anyone who praises, encourages, propagandizes, sympathizes with, or incites activities of an anti-state organization or its members or those who have received their orders, or who propagandizes or agitates for state subversion, shall be punished by imprisonment for up to seven years." Paragraph 5 specifies that those who "produce, import, copy, possess, transport, distribute, sell, or acquire documents, drawings, or other expressive materials for the purpose of pro-North Korean activities" shall be punished.

This is the eighth time since the partial amendment of the National Security Act in 1991 that Article 7 has been brought before the Constitutional Court for a constitutional review. In the previous seven reviews, all decisions upheld the constitutionality, but over time, the number of justices expressing opinions of unconstitutionality has been increasing.

In 2015, former Justice Kim Yi-su, known as the "Mr. Minority Opinion," expressed an unconstitutional opinion on the "sympathize" part of Article 7 Paragraph 1, and former Justices Kang Il-won, Kim Yi-su, and Lee Jin-sung expressed unconstitutional opinions on the "possession and acquisition" parts of Article 7 Paragraph 5. In the recent 2018 hearing, former Justices Lee Jin-sung, Kim Yi-su, Kang Il-won, and current Chief Justice Lee Seon-ae and Justice Yoo Nam-seok expressed the opinion that the provision punishing possession of pro-North Korean propaganda materials under Article 7 Paragraph 5 is an excessive regulation.

The petitioners argue that "the provisions on pro-North Korean activities and propaganda materials are broad and use vague terms, making their scope of application wide and excessively arbitrary." They also claim that "mere 'production, import, copying, possession, or acquisition' does not easily create an objective risk of the dissemination or spread of anti-state organization ideology, thus violating the principle of proportionality."

On the other hand, Han Dong-hoon, Minister of Justice and an interested party, stated in a written opinion submitted to the Constitutional Court that "the highest value of the Constitution is to maintain the free democratic basic order, and under this foundation, the principle of peaceful unification exists. Therefore, unless the Constitution is amended, it is evident that North Korea, which has decided to transform into a communist or socialist system, is an anti-state organization incompatible with the Constitution of the Republic of Korea." He added, "If the harm of certain expressions is of a nature that cannot be resolved from the outset, such expressions cannot be granted unlimited protection," emphasizing that "the harm caused by the spread of pro-North Korean expressions would require enormous national loss and division to be healed, so it cannot be left to the free market of ideas."

Minister Han further stated, "The clear danger caused by pro-North Korean activities, even if not immediately realized at the present time, can at any time pose a significant threat to national security, and while the danger exists, enormous damage may occur, making the intervention of public authority meaningless."

This content was produced with the assistance of AI translation services.