"Unconstitutional 'Anti-North Korea Leaflet Law'... Constitutional Court: 'Excessive Punishment Exercised'"

Majority Opinion: "Restricted Expressions Are Extensive... Freedom of Expression Excessively Limited"
Constitutional Opinion: "Punishment for Leaflet Distribution Presumes Valid Continuation of Inter-Korean Agreement"

The Constitutional Court has ruled that the so-called 'Anti-North Korea Leaflet Act,' which punishes acts such as broadcasting loudspeaker messages toward North Korea, posting visual materials, and distributing leaflets around the Military Demarcation Line, is unconstitutional.

Chief Justice Yoo Nam-seok of the Constitutional Court and the constitutional justices are seated in the justices' seats of the Grand Bench at the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 26th, where the constitutional complaint case ruling is held.
[Image source=Yonhap News]

On the 26th, the Constitutional Court delivered a ruling of unconstitutionality by a vote of 7 (unconstitutional) to 2 (constitutional) in a constitutional complaint case filed by the Lawyers for Human Rights and Unification of Korea (Hanbyun) against Article 24, Paragraph 1 of the Act on the Development of Inter-Korean Relations.

The Anti-North Korea Leaflet Act was newly established in December 2020 during the Moon Jae-in administration, triggered by the defector group 'Free North Korea Movement Alliance' distributing about 500,000 leaflets over North Korean airspace from April to June 2020.

When Kim Yo-jong, First Deputy Director of the Workers' Party of North Korea, harshly criticized the leaflet distribution as "a clownish act of trash" and demanded a law to stop it, the Moon administration announced plans to improve the system and intentions to crack down on leaflet distribution toward North Korea.

Subsequently, 12 lawmakers from the Democratic Party of Korea proposed the Anti-North Korea Leaflet Act, which stipulates punishment of up to three years imprisonment or a fine of up to 30 million won for acts such as broadcasting loudspeaker messages, posting visual materials, and distributing leaflets around the Military Demarcation Line, and it was passed in the plenary session.

In response, 27 organizations including Hanbyun, the Direct Aid Movement for North Korean Compatriots, Keunsam, and Mulmangcho filed a constitutional complaint in December 2020, requesting a ruling on the constitutionality of the Anti-North Korea Leaflet Act after its promulgation.

The Constitutional Court stated, "The ultimate intention of the provisions under review is to prohibit certain expressions that the North Korean regime does not tolerate, targeting North Korean residents, thereby resulting in restrictions on the content of expression," and added, "While prohibiting the distribution of leaflets and the like, it also punishes attempts and imposes imprisonment, which cannot be regarded as a reasonable exercise of state penal power, and the restriction on political freedom of expression is very serious, so the balance of legal interests is not recognized."

It further ruled, "Freedom of expression is a core fundamental right that forms the foundation of democracy under the Constitution, so even if its restriction is inevitable for public interest, it must be minimal, and restrictions based on the expressed viewpoint can only be permitted under strict conditions when necessary for the realization of significant public interest," and "The content of expression restricted by the provisions under review is broad, excessively limiting freedom of expression."

On the other hand, Justices Kim Ki-young and Moon Hyung-bae opined, "The provisions only prohibit expression through the method of 'distribution of leaflets, etc.' targeting North Korean residents, without any restriction on the content of the expression, which is a restriction on the method of expression called 'distribution of leaflets, etc.'," and stated, "Punishment under the provisions presupposes the valid continuation of the inter-Korean agreement, so from the perspective of the North Korean authorities who are extremely wary of 'distribution of leaflets, etc.,' there is an interest in complying with the inter-Korean agreement to suppress 'distribution of leaflets, etc.,' and if North Korea complies, the safety of residents in border areas as well as peace on the Korean Peninsula can be maintained; considering such public interest, the balance of legal interests is recognized," expressing a constitutional opinion.

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