Why Can't They Stop Anti-North Korea Leaflets Despite the Trouble with Water Balloons... Looking at Past Precedents [News SeolCham]

(23) Provocations by North Korea Using Leaflets as Justification
Constitutional Court: "Leaflet Distribution Ban Law Unconstitutional... Freedom of Expression is Important"
Police: "No Grounds to Restrain North Korean Leaflets Under Current Law"
Restraint Possible Under Security Law but Serious Threat Must Be Recognized

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As balloons filled with filth dispersed by North Korea have been found across the country, citizens' anxiety is growing. While there are voices calling to stop the distribution of anti-North Korea leaflets by defectors' groups, which North Korea cites as justification for releasing these filth balloons, the police maintain that they cannot intervene. Why is it impossible to restrain or punish the distribution of anti-North Korea leaflets?

Anti-North Korea leaflets have been a subject of controversy in the past as well. Whenever defector groups sent hundreds of thousands of leaflets along with medicines and food supplies, North Korea reacted sensitively. The pretext used by Kim Yo-jong, Deputy Director of the North Korean Workers' Party, when blowing up the Inter-Korean Liaison Office building in June 2020 was the distribution of anti-North Korea leaflets by defector groups.

[Image source=Yonhap News]

One might think that restraining and punishing the distribution of anti-North Korea leaflets to remove North Korea's justification for provocations would be the solution. However, in September last year, the Constitutional Court ruled some provisions of the Inter-Korean Relations Development Act, which prohibit and punish leaflet distribution, unconstitutional. The reason was that it could infringe on the constitutional right to freedom of expression.

The Inter-Korean Relations Development Act, passed by the National Assembly in December 2020, stipulates necessary matters for the development of inter-Korean relations to achieve peaceful unification. Among these, the provisions that were ruled unconstitutional dealt with the prohibition and punishment of leaflet distribution. Article 24, Paragraph 1 of the Act prohibits ▲1) loudspeaker broadcasts toward North Korea near the Military Demarcation Line ▲2) posting visual media (posters) toward North Korea near the Military Demarcation Line ▲3) leaflet distribution. Violations are punishable under Article 25 of the Act by imprisonment of up to three years or a fine of up to 30 million won.

Regarding this, the Constitutional Court ruled unconstitutional with a 7-2 decision. Justices Lee Eun-ae, Lee Jong-seok, Lee Young-jin, and Kim Hyung-doo, in their dissenting opinion, pointed out that the exercise of the state's penal power should be a last resort and limited to the minimum necessary, but the provision goes beyond prohibiting leaflet distribution by criminalizing it and imposing imprisonment, which is excessive. They also noted that it is difficult to assert that the provision ensures the safety of residents in border areas or fosters an atmosphere of peaceful unification between the two Koreas, and that it unfairly shifts the responsibility for harm to citizens' lives and bodies caused by North Korea's hostile actions onto the leaflet distributors.

Another way to restrain anti-North Korea leaflets is through the Police Officers' Duties Execution Act (PODA). Justices Yoon Nam-seok, Lee Mi-sun, and Jung Jung-mi, in their dissenting opinion, judged that "the provision aims to ensure the safety of life and body of residents in border areas, and this legislative purpose can be achieved through prior notification of leaflet distribution and measures under the Police Officers' Duties Execution Act." Article 5 of PODA allows various measures when there is a risk of harm to a person's life, body, or property.

There is precedent recognizing that the distribution of anti-North Korea leaflets poses an imminent danger to the life and body of residents in border areas. Since the early 2000s, Lee Min-bok, a defector and leader of the anti-North Korea balloon group, who sent leaflets via large balloons, filed a lawsuit in December 2014 seeking 5 million won in damages against the military and police for direct and indirect restraint actions. The first trial dismissed Lee's claim, stating that "there is a causal relationship between the distribution of anti-North Korea leaflets and North Korea's provocative acts that pose imminent danger to the life and body of residents near the Demilitarized Zone."

In October 2014, North Korean troops used mortars to target the leaflets sent by Lee, and the shells landed in Yeoncheon County, Gyeonggi Province, threatening citizens' lives and property, so the military and police's restraint was not unlawful. Lee appealed and filed a final appeal against the ruling, but both the appellate court and the Supreme Court dismissed it, finalizing the judgment.

However, currently, the police hold the position that the 'filth balloons' North Korea is intensively sending do not constitute a threat warranting action. They consider it difficult to apply PODA. On the 10th, Police Commissioner Yoon Hee-geun said at a press briefing, "It is not clear that filth balloons correspond to the 'imminent and serious threat to the life and body of citizens' that would justify restraint under PODA."