This article was originally published by Radio Free Asia and is reprinted with permission.
South Korea’s Constitutional Court has overturned the law barring the dissemination of anti-Pyongyang leaflets into North Korea, a decision that is likely to irk North Korea, which perceives such leaflets as a significant threat to the Kim Jong Un regime.
The South Korean court declared the law unconstitutional Tuesday, with seven out of its nine judges finding that the law restricted the nation’s constitutional value of free speech. This verdict led to the law’s immediate annulment.
“The law’s goal of ensuring the safety of people’s lives and bodies constitutes an important public interest,” the court said. “But the restriction of freedom of expression inflicted on those involved is disproportionally severe.”
The current law is making “individuals dispersing leaflets accountable for any provocations that arise from North Korea,” the court added, explaining its verdict to make the law unconstitutional.
South Korea criminalized the sending of anti-Pyongyang leaflets across the border in March 2021, with it penalizing offenders with up to three years’ imprisonment or a fine of 30 million won (US$22,000).
The controversial law passed South Korean parliament during the former progressive Moon Jae-in administration, which argued that sending leaflets towards the North could incite hostility from the North, jeopardizing the safety of border town residents in the South.
The Inter-Korean Relations Development Act, orchestrated by Moon’s progressive bloc, mandated that “no person shall inflict harm or pose serious danger to the life or body of individuals by engaging in any of the following actions,” and explicitly listed “leafleting”.
During the Panmunjom summit between South Korean President Moon and his North Korean counterpart in April 2018, the two leaders agreed to “completely cease all hostile acts against each other in every domain”. South Korean progressives saw sending leaflets could be defined as hostile activities against the North.
However, the criminalisation sparked backlash from both international and domestic human rights organizations and media outlets. South Korean conservatives and international media opined that sending leaflets was a matter of free speech and a law restricting such an activity was unconstitutional. Dozens of human rights organizations filed a constitutional complaint concerning the prohibition, and sought an injunction against the newly enacted law.
With North Korea returning to its brinkmanship diplomacy after the collapse of its high-stake summit with the United States in Hanoi in February 2019, South Korean conservatives have been arguing for the South to scrap its inter-Korean agreement that mandated the cessation of what Pyongyang defined as hostilities.
South Korea’s Unification Ministry under the conservative President Yoon Suk Yeol, had expressed the ministry’s opinion to the Constitutional Court last year, stating that the law violates the nation’s constitutional value of free speech.
