Constitutional Court Rules “Anti-North Korean Leaflet Prohibition Act” Unconstitutional
After two years and nine months, the Constitutional Court has declared the “Anti-North Korean Leaflet Prohibition Act” unconstitutional. The act, which aimed to regulate the distribution of anti-North Korean leaflets in the North Korean border area, was found to excessively restrict freedom of expression by relying on punitive measures as a last resort.
In a 7-2 decision, the Constitutional Court ruled that Article 24, Paragraph 1, Item 3 of the Inter-Korean Relations Development Act, also known as the Anti-North Korea Leaflet Ban Act, violated the constitution. This provision prohibited actions that endangered the lives and well-being of citizens through specific actions directed towards North Korea, carrying penalties of up to three years in prison or a fine of up to 30 million won.
The specific issue brought before the Constitutional Court was the ban on the act of “distributing leaflets, etc.” as outlined in Article 3. The seven judges, including Eun-ae Lee, Jong-seok Lee, Young-jin Lee, and Hyeong-doo Kim, concluded that this provision infringed upon freedom of expression.
The judges emphasized that the ban transferred responsibility for North Korea’s provocations onto the leaflet distributors, which is inconsistent with the constitutional principle that punishment requires responsibility. They stated that holding leafleters accountable for harm caused by North Korea violates the principle of no punishment without responsibility.
Other judges, namely Yoo Nam-seok, Lee Mi-seon, and Jeong Jeong-mi, highlighted the comprehensive nature of North Korea and its potential for provocation. They argued that the restricted speech content encompassed a broad range of expressions.
The Ministry of Unification welcomed the Constitutional Court’s decision and expressed its support for the ruling. As a result of the court’s ruling of unconstitutionality, the provisions penalizing the distribution of anti-North Korean leaflets will no longer be in effect.
The distribution of anti-North Korean leaflets using balloons in the border area between South and North Korea has been a recurring source of tension between the two countries. In December 2020, the Moon Jae-in government and the ruling Democratic Party of Korea passed an amendment to ban the distribution of these leaflets, despite opposition from the opposition party, aiming to ease inter-Korean tensions.
Reporters: Kang Yoon-hyuk and Lee Beom-soo
The judges’ 7-2 opinion recognized the legality of the legislative purpose.
Lee Eun-ae, Lee Jong-seok, Lee Young-jin, and Kim Hyeong-du, “violation of freedom of expression”
“The minimum crime and balance of legal interest is not recognized, violating the principle of prohibition of excess.”
“Put responsibility on those responsible for injecting North Korean provocations… “Breach of responsibility”
Yoo Nam-seok, Lee Mi-seon, and Jeong Jeong-mi, “Punishment equivalence and last resort.”
“Restricted speech content is extensive… “Excessive restrictions on freedom of expression”
(Seoul = News 1) = On the night of the 20th, the North Korean Free Movement League, a group of North Korean defectors, sent 200,000 anti-North Korean leaflets, 1,000 USB sticks, and 200 brochures to 20 advertising balloons to indicate’ r 20th. ‘North Korean Freedom Week’ on Ganghwa Island, Incheon, on the night of the 20th, announced on the 21st. (Provided by the North Korean Free Movement) 2023.9.21/News 1″ style=”padding: 0px;margin: 0px”>
▲ North Korea Free Movement Federation sends 200,000 North Korean leaflets to Ganghwa Island
(Seoul = News 1) = On the night of the 20th, the North Korean Free Movement League, a group of North Korean defectors, sent 200,000 anti-North Korean leaflets, 1,000 USB sticks, and 200 brochures to 20 advertising balloons to indicate’ r 20th. ‘North Korean Freedom Week’ on Ganghwa Island, Incheon, on the night of the 20th, announced on the 21st. (Provided by North Korea Free Movement Federation) 2023.9.21/News 1
The ‘Anti-North Korean Leaflet Prohibition Act’, which regulates the distribution of anti-North Korean leaflets in the North Korean border area, was ruled unconstitutional by the Constitutional Court after 2 years and 9 months.
Although the purpose of the legislation to fulfill the nation’s responsibility for peaceful unification is considered just, the purpose was to excessively restrict freedom of expression by mobilizing the state’s power to punish, which should be the last resort.
On the 26th, the Constitutional Court ruled that Article 24, Paragraph 1, Item 3 of the Inter-Korean Relations Development Act, also known as the Anti-North Korea Leaflet Ban Act, was unconstitutional with a 7 to 2 opinion by the judges.
Article 24, Paragraph 1 of the Inter-Korean Relations Development Act prohibits actions that harm or pose a serious risk to the lives and bodies of citizens by carrying out specific actions towards North Korea. Anyone who violates this is subject to up to three years in prison or a fine of up to 30 million won.
Among these, the one that came before the Constitutional Court was the ban on the act of ‘distributing leaflets, etc.’ as set out in Article 3. Seven judges ruled that the provision prohibiting the distribution of anti-North Korean leaflets violate the Constitution by restricting freedom of expression.
Judges Eun-ae Lee, Jong-seok Lee, Young-jin Lee, and Hyeong-doo Kim particularly thought it was against the principle of responsibility, saying, “It shifts the responsibility about North Korea’s provocations to whoever is responsible. for handing out leaflets.” North Korea causes harm to the lives and bodies of its citizens, but holding leafleters responsible for causing harm violates the constitutional principle that there is no punishment without responsibility.
Judges Yoo Nam-seok, Lee Mi-seon, and Jeong Jeong-mi pointed out that, “Due to the nature of North Korea, the content of expressions that could provoke North Korea and cause provocations is quite comprehensive,” and “Content that expressions restricted by the provisions which are the subject of judgment are extensive.”
On this day, the Ministry of Unification announced its welcome stance on the decision of the Constitutional Court to find it unconstitutional. Following the Constitutional Court’s ruling that it was unconstitutional, provisions punishing the distribution of anti-North Korean leaflets will lose immediate effect.
Leaflets sent against North Korea by attaching various propaganda materials to balloons in the border area between South and North Korea have been a constant source of conflict between North and South Korea. The government of Moon Jae-in and the then-ruling Democratic Party of Korea passed a law amendment in December 2020, over opposition from the opposition, to ban the distribution of anti-North Korean leaflets that cause conflict in an atmosphere of easing between -. Korean tensions.
Reporters Kang Yoon-hyuk and Lee Beom-soo
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