SOUTH KOREA: Rights Defenders Must be Free from Legal Suppression

(HONG KONG) - Mr. Song Kyung-Dong, a poet, and Mr. Jeong Jin-Woo, a member of the progressive party, suggested a peaceful assembly for solidarity in support of Ms. Kim Jin-sook. They have now been charged with numerous criminal offenses. Ms. Kim has occupied the top of a crane in the workplace urging for the withdrawal of illegal layoffs by her company.

Our goal with Eye on the World is to illustrate and highlight politically oriented problems and tragedies that traditional media channels don't have time or interest in covering.

The world has its own set of laws that were agreed upon by the ruling nations in 1948, and many people are not aware of this simple fact. At the root of the concept of world citizenry itself, is the United Nations Universal Declaration of Human Rights, an overriding and supreme law that ensures many essential human rights that governments today fail to observe. Also central to any hope of human success, is the understanding of the human hierarchy of needs, as defined by Abraham Maslow- more information on this at the conclusion of this entry. We must use the Internet as a tool of justice at every junction, and we need to assist all human beings, everywhere, and not allow cultural, racial or religious preferences as determiners.

In his letter, Mr. William Gomes urges Mr. Lee Myung-Bak, President of the Republic of Korea, to investigate the legal suppression involved in promotion and protection of human rights. He believes this should be thoroughly evaluated and assessed before the court so that various Acts should not be applicable in a way to restrict or limit rights and freedom enshrined in both Korean Constitution as well as international human rights instruments.

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March 29, 2012

Mr. Lee Myung-Bak
President
1 Sejong-no, Jongno-gu
Seoul, 110-820
REPUBLIC OF KOREA
Fax: +82 2 770 4751
E-mail: foreign@president.go.kr or president@cwd.go.kr or president@president.go.kr

Re: SOUTH KOREA: Rights defenders must free from legal suppression

Dear Mr. Lee Myung-Bak,

Name of accused:
1. Mr. Song Kyong-Dong, a poet and labour activist against irregular workers and dismissal of labours
2. Mr. Jeong Jin-Woo, in charge of irregular workers’ committee at the new progressive party

No. of Case: Year 2011 HYUNGJE80999

I am writing to voice my deep concerns regarding the case that two activists, Mr. Song Kyung-Dong, poet, and Mr. Jeong Jin-Woo, a member of the progressive party, who suggested the peaceful assembly for solidarity in support of Ms. Kim Jin-sook, have now been charged with numerous criminal offenses. Ms. Kim has occupied the top of a crane in the workplace urging for the withdrawal of illegal layoffs by her company.

Due to this support from the civil society suggested by Mr. Song and Mr. Jeong, the company made an agreement with its trade union in November, 2011 and as a result, Ms. Kim Jin-Sook came down from the crane on November 10, 2011.

According to the information that I have obtained, both Mr. Song and Mr. Jeong are now charged with numerous criminal offences such as Criminal Act (general obstruction of traffic, obstruction of the performance of special official duties causing injuries, illegal trespass), Act on Assembly and Demonstration (holding a demonstration before sunrise and after sunset, holding an assembly without an approval from the police and refusal to the police order of dispersal) and Punishment of Violence, etc. Act.

They used the internet to inform this activity and people voluntarily joined. On the first occasion, from June 11 to 12, 2011, around 700 people gathered in Bongrae intersection in Busan around midnight to 1:25am from where they marched to the shipyard where Ms. Kim Jin-Sook was on strike, occupying the road. They were ordered to voluntarily disperse by the police but refused. They were accused of trespass and held an assembly till 2pm.

With regards to the illegal trespass, the prosecutor generally explained what happened but failed to demonstrate the specific offence of the two.

On the second occasion, from July 9 to 10, they together with around 7,000 citizens gathered at 7:03pm and held a concert, called, ‘concert for solidarity’ till 9:20pm. After the concert, all demonstrators marched toward to the shipyard occupying the street. The police blocked the road from the demonstrators passing and asked for dispersal. Around 11:25pm, some unidentified demonstrators allegedly attacked three policemen causing them to be injured. Mr. Song and Mr. Jeong were neither involved in this violence nor provoked the demonstrators to use violence against the police, nonetheless they were charged with the obstruction of the performance of special official duties. The police repeatedly called for dispersal but the demonstrators continued to hold an assembly till around 3:30pm on July 10.

On the third occasion, from July 30 to 31, they planned the peaceful assembly and demonstration and Mr. Song did not attend but Mr. Jeong did. Around 2,200 people gathered near a Subyun part in Busan around 9:30pm and occupied the street and hold an assembly till 8:50am on following day. The demonstrators were ordered to disperse by the police but refused. On July 31, around 1,500 demonstrators gathered and hold an assembly around Busan District Police Station around 11:55am.

On the forth occasion, from August 27 to 28, they did not attend but planned the peaceful assembly and demonstration. Around 3,500 people gathered in a square in Seoul and hold an assembly from 7pm to 9:25pm on August 27. After the assembly, the demonstrators marched toward a park occupying a street for about 4 kilometres. For this reason, they were charged with holding an assembly without approval and demonstration before sunrise and after sunset and general obstruction of traffic.

On the fifth occasion, from October 8 to 9, they did not attend but planned the peaceful assembly and demonstration. Around 2,000 people planned to gather in Busan railway station square and walk toward the shipyard but were blocked by the police and thereafter, the demonstrators moved to another place. From there, the demonstrators hold an assembly from 8:40pm to 9:40pm. They moved to a bridge in order to go to the shipyard but while blocked, they hold an assembly till midnight occupying the street. Unable to pass the bridge, the demonstrators moved to a square and held an assembly from 1:20am to 8:20am on October 9. Around 800 people moved to a Busan square at 10:15am and held assembly without police approval urging for the withdrawal of illegal dismissal.

Based on the information above, I would like to challenge the number of points how number of Acts is misapplying limiting the freedom of assembly and demonstration contrary to the Korean Constitution in real practice.

Firstly, there is a clear contradiction in the laws in the country. According to the article 21(1) of the Constitution, “All citizens shall enjoyâ€¦freedom of assembly and association.” And article 21(2) says, “â€¦licensing of assembly and association shall not be recognised”. However, article 6 of the Act on Assembly and Demonstration requires an organiser to get an approval from the police station which has the jurisdiction. If the police station does not approve, then, any peaceful assembly or demonstration becomes automatically unlawful, being de facto operated as a licensing system contrary to the Constitution. A violation of the ban is punishable by imprisonment of up to two years or a fine of up to two million won according to the article 22(2) of the Act.

In addition, article 5(1)((2)) of the Act has a clause of ban on assembly and demonstration, which can be read, “An assembly or demonstration which clearly poses a direct threat public peace and order by inciting collective violence, threats, destruction, arson, etc”. Due to this clause, the police chief has the broad discretionary power to ban on assembly or demonstration. The decision of ban is arbitrary or selective. A right of appeal exists in the Act but it is hardly expected for the senior police chief to reverse the decision made. It is because there is no independent system to evaluate or assess such decision.

Secondly, if there are unexpected numbers of people gathering in an assembly, it is inevitable for some of them to occupy a part of the street with no intention to obstruct traffic. In addition, if the procession is made, it is again inevitable to walk on the street which may obstruct the flow of traffic not totally but partially. The role of the police therefore should play in protecting the peaceful assemblers or demonstrators from possible interference by others and from possible car accident in guaranteeing with flow of traffic. Due to the complete disapproval on any assembly or demonstration, there is no choice but to enjoy the right to freedom in the Constitution by violating the existing Acts.

In a demonstration which is not approved, not only to this case but also previous cases relating to the application of the Acts, the prosecution service indicts organisers under the Criminal Act rather than the Act on Assembly and Demonstration. The punishment of criminal offence of the former has much longer period of imprisonment or more fines. The article 185 (general obstruction of traffic) of the Criminal Act can be read, “A person who damages, destroys or blocks a road, water-way, or bridge, or obstruct traffic by other means, shall be punished by imprisonment not more than ten years or by a fine not exceeding fifteen million won”. In comparison, according to the article 23 of the Act on Assembly and Demonstration, an organiser who holds a demonstration which is disapproved based on the obstruction of traffic shall be punished by imprisonment not more than one year or by a fine not exceeding a million won.

Although the punishment of the Act on Assembly and Demonstration is already rigorous, the prosecution service indicted the two under the article 185 of the Criminal Act, which clearly results in deterrence not only to organisers to hold an assembly or demonstration with approval from the police which is not approved but also people from participating in the assembly or demonstration. The propriety test should be made before the court. The assessment of balance between the right to freedom of assembly or demonstration in the international human rights norms as well as Korean Constitution and existing domestic laws restricting the right should be followed as well. Apart from this, when the procession which is not approved is made, it is not because of the demonstrators but the police vehicles used as cordons to block the demonstrators to cross, which in fact causes the total obstruction of traffic. For this reason, the applied articles under the Criminal Act are believed to demonstrate that prosecution service indicted two organisers with the intent of punitive or malicious intent therein.

Thirdly, it is the fact that two organisers did not planned to organise violence assembly or demonstration and neither provoked nor agitated the demonstrators to use violence in each occasion but asked for peaceful assembly and demonstration. Unfortunately in the second occasion, a few individual demonstrators who were angry at total blockade or attack by the police had physical contact with the police. However, two organisers are charged with obstruction of the performance of special official duties. This indictment is made possible because of so-called, co-principals, under the article 30 of Criminal Act. It is originally adopted in order to punish organised criminal groups who are masterminds of serious criminal offences. However, the prosecution service applied such principle to two organisers who did nothing but to suggest peaceful assembly and demonstration. They are now accused of being responsible for the injuries imposed on the three policemen caused not by themselves but by a few angry demonstrators.

Fourthly, in the Act on Assembly and Demonstration, when unpermitted assembly or demonstration is held, the police may order assemblers or demonstrators to disperse. There is a punishment clause in the Act that those who attend the unpermitted assembly or demonstration. In addition to this, in a situation where the police may order of dispersal, if those who do not follow the order, they are punishable again. The two are now in double jeopardy for punishments.

Fifthly, the article 10 of the Act on Assembly and Demonstration is the prohibition of assembly or demonstration before sunrise and after sunset in the outside. In 2009, the ban on assembly before sunrise and after sunset is found unconstitutional by the Constitutional Court. The constitutionality of prohibition of demonstration before sunrise and after sunset is currently being before the Constitutional Court. It is general article which does not need an approval from the police since demonstration before sunrise and after sunset in the outside is completely prohibited.

I, therefore urge that legal suppression of Mr. Song and Mr. Jeong involved in promotion and protection of human rights should be thoroughly evaluated and assessed before the court so that various Acts should not be applicable in a way to restrict or limit rights and freedom enshrined in both Korean Constitution as well as international human rights instruments. Mere adoption of existing articles of Acts without consideration of rule of law may only invite miscarriage of justice and at the end, more restriction on rights and freedom will be rampant. The propriety as well as proportionality of various articles currently imposed to Mr. Song and Mr. Jeong should be well tested and thus, the legal suppression be lifted.

I also urge the government of the South Korea that the provisions of Acts which in fact limit or deprive citizens of freedom of peaceful assembly and demonstration should be amended in a way not to restrict but guarantee that everyone enjoys the freedom of peaceful assembly and demonstration. It is the duty of the government of the South Korea to amend those provisions so that people in the country are benefit from such amendments.

I am of the opinion that an assembly or demonstration in South Korea does not have characters of criminal offences such as riot, arson or threat to the life of the community but concerned that organisers or demonstrators become victimised by the Act on Assembly and Demonstration which is in fact operating as a permit system and restricting freedom of assembly and demonstration and freedom of expression. It appears that if a conflict unfortunately occurs, it is not between peaceful demonstrators and the people in the community but between peaceful demonstrators and the riot police who disapprove such assembly or demonstration and misuse of police power with impunity.

I further urge that the indiscriminate misapplication of law by the prosecution service should be properly evaluated and cross checked before the court. In fact, these sorts of misapplication of articles of various Acts not only apply to the two organisers but to whoever organises a peaceful assembly and demonstration. For this reason, many rights defenders in general in South Korea have faced lots of legal suppressions in order to enjoy such rights enshrined in the international human rights instruments and Korean Constitution.

The applications of various existing laws restricting rights and freedom further explains that the rule of law has not been developed rather rights and freedom are restricted by the existing laws. Despite the fact that it is one of important elements that various and different opinion and expression exist in democratic society, it is unfortunate that rights defenders in the South Korea are deemed to be punishable by the domestic laws which are incompatible with international human rights instruments to which the South Korea is a state party.

Yours sincerely,
William Nicholas Gomes
William’s Desk

http://www.williamgomes.org/?p=723

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Maslow's hierarchy of needs

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Salem-News.com Writer William Nicholas Gomes is a Bangladeshi journalist, human rights activist and author was born on 25 December, 1985 in Dhaka. As an investigative journalist he wrote widely for leading European and Asian media outlets.

He is also active in advocating for free and independent media and journalists’ rights, and is part of the free media movement, Global Independent Media Center – an activist media network for the creation of radical, accurate, and passionate telling of the truth. He worked for Italian news agency Asianews.it from year 2009 to 2011, on that time he was accredited as a free lance journalist by the press information department of Bangladesh. During this time he has reported a notable numbers of reports for the news agency which were translated into Chinese and Italian and quoted by notable number of new outlets all over the world.He, ideologically, identifies himself deeply attached with anarchism. His political views are often characterized as “leftist” or “left-wing,” and he has described himself as an individualist anarchist.