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The Cheonan incident and the declining freedom of expression in South Korea.

The sinking of the South Korean naval warship Cheonan--in which forty-six lives were lost--during US-Republic of Korea (ROK) joint naval exercises on March 26, 2010, was a great embarrassment to the conservative Lee Myung-bak government. Although the incident exposed the incompetence of the navy and Lee's national security team, the government seemed to see a political opportunity in the incident. South Korea formally declared North Korea (the Democratic People's Republic of Korea; DPRK) the culprit, presenting quite plausible evidence for a North Korean torpedo attack, and announced various sanctions on the Pyongyang regime. These were known as the May 24 Measures. While the opposition raised suspicions about the government's political motivation--that is, to mobilize conservative voters in the upcoming nationwide local elections of June 2--the political consequences of the government's reaction to the Cheonan sinking were not confined to short-term political events. More significant were the highly negative consequences for freedom of expression and consolidation of liberal democracy in South Korea.

The decline of freedom of expression under the Lee government was surprising in two respects. Lee's electoral victory in December 2007 represented the second turnover of power since the democratic transition of 1987, which is commonly accepted as a sign of democratic consolidation (Huntington 1991). Moreover, Lee was seen as a moderate, if not a liberal, within the centerright Grand National Party; few, if any, had expected that his administration would take an illiberal or authoritarian approach with regard to media freedom. Less surprising is that freedom of expression and civil liberties have continuously declined under the succeeding Park Geun-hye government, considering President Park's political background as a daughter of the late dictator Park Chung-hee.

In this article, I do not attempt to identify the cause of the Cheonan sinking, a task beyond the scope of this study. Rather, I ask what impact the government's reaction to the Cheonan incident has had on freedom of expression and civil liberties. Specifically, I explore why the Lee government chose to suppress free speech and what enabled the government to do so.

My main findings are as follows. First, the government's response to the Cheonan incident strengthened the authoritarian elements within the administration and the ruling party, thereby intensifying suppression of dissenting views that originated in the aftermath of candlelight protests over the government's decision to import US beef in 2008. The suppression of dissent contributed to the downgrading of South Korea from "free" to "partly free" in Freedom House's ratings on freedom of the press as well as Internet freedom. Second, in order to suppress dissent, the government relied on the rhetoric of national security, labeling the critics pro-North Korea. But the main legal tools employed by the government were criminal defamation and Internet regulations rather than the National Security Law (NSL).

My article is organized as follows. First, I show the inconsistencies and weaknesses of the findings of the Joint Civilian-Military Investigation Group (JIG) (2010) and then discuss how the government's response to the Cheonan incident strengthened the authoritarian elements within the Lee Myung-bak administration. I demonstrate how its strategies created multiple dilemmas, including the difficulty of suppressing dissenting views and convincing the broader public in spite of authoritarian tactics. I analyze the main types and cases of suppression of critics, focusing on the rhetorical and legal tools. Finally, I discuss South Korean democracy's vulnerability to erosion of freedom of expression and civil liberties.

The Cheonan Investigation: Lingering Doubts

The Joint Investigation Group's Findings

The JIG, led by the ROK military, announced on May 20, 2010, that a North Korean torpedo attack was responsible for the sinking of the Cheonan, an announcement that came about two months after the incident and two weeks ahead of the June 2 nationwide local elections. In response, North Korea vehemently denied its responsibility and requested that it send a team of its own experts to examine the case. However, the most serious challenge to the credibility of the South Korean government's investigation did not come from North Korea but from within South Korea. Various experts and scientists raised serious questions about the veracity of the JIG's findings. A team of Russian experts, invited by South Korea to review the findings, also reportedly cast doubts on the JIG's findings. To get a sense of the breadth of the challenges to the report, I review some of the findings here.

First, questions were raised about whether the fragments of a torpedo found near the sunken ship actually came from a North Korean torpedo. A blue "No. 1" ink mark on a torpedo fragment was presented as a key piece of evidence because the marking in Korean was consistent with a previously obtained North Korean torpedo. However, critics questioned how the ink mark could have survived the enormous heat of the explosion, while the paint on the outer surface of the torpedo did not (Lee 2010). Also, the severe corrosion of the torpedo parts seemed to indicate that they were under water for a much longer time than the fifty days from the incident to their recovery. The Russian investigative team also reportedly concluded that the torpedo fragments had been under the sea for more than six months.

Second, experts called into question the evidence of a torpedo explosion. The "outside bubble-jet explosion" scenario seemed inconsistent with the damage that the Cheonan sustained. The recovered ship and the condition both of the soldiers who survived and those who were killed bore no signs of the shockwave that such an explosion would have produced. In addition, scientific questions were raised about whether adsorbed materials found from the ship and the torpedo fragments indicate an explosion. Seung-hun Lee and Panseok Yang argued that the adsorbed material must be from old, corroded aluminum, not from an explosion (Lee and Yang 2010). Chung Ki-young also reached the same conclusion from an independent experiment (Lee 2011). Recently, Kim and Caresta (2014) have shown that the recorded seismic spectra at the time of the Cheonan incident are not consistent with an underwater explosion but consistent with its collision with a 113-meter-long submarine.

Critics also pointed out that the shape of the a propeller screw indicates the ship ran aground rather than experienced a bubble-jet explosion. Shin Sang-cheol raised the possibility that the Cheonan's sinking was due to its having run aground in shallow waters, followed by a sort of collision, noting that a copy of the naval operational situation map marked the place of the incident as the "initial place of being grounded" (Shin 2012). The Russian team also reportedly presented a theory of "being grounded and then being hit by explosion of a sea mine" (Ohmynews 2012).

Third, even if a North Korean torpedo attack was responsible for the Cheonan sinking, important questions remain. If a North Korean submarine made a planned, deliberate attack, a serious investigation should have been undertaken as to how the North Koreans knew the warship's location in advance and why the Cheonan failed to avoid the attack. The military leadership should have been humiliated and held responsible for having been attacked by a North Korean submarine. Instead, the military proudly presented the torpedo fragments as evidence of a North Korean attack. Although the Board of Audit and Inspection (BAI) reviewed the failure of the navy to prevent the Cheonan from being attacked by the North, it did not release its final report to the public. However, some of the BAI's initial findings that were released are suggestive: the BAI found multiple cases of fabrication of documents, including the arbitrary change of the timing of the incident from 9:15 p.m. to 9:45 p.m. and a false report on the convening of a crisis management group that actually did not take place (Shin 2012).

Last, but not least, the transparency of the investigation left a lot to be desired. While the JIG claimed that the investigation was conducted jointly by a multinational team that included twenty-five civilians and twenty-four foreigners in addition to twenty-two members from the military, most of the civilians were affiliated with military- or government-sponsored institutes. The precise role of the foreigners in the investigation is still unknown (Lee 2011; Media Today 2014). The military and the JIG still refuse to disclose critical information, such as communication records and the navigation route of the Cheonan. They even hid--and lied about--some information, such as the time and recording of closed-circuit television images of the warship sinking (People's Solidarity for Participatory Democracy 2010; Lee 2011).

As this litany of concerns suggests, the JIG Report suffers from severe credibility problems. Of course, North Korea may well be responsible for the sinking of the Cheonan. But we cannot rule out other possibilities. By treating inconclusive evidence for North Korean involvement as dispositive, the Lee government not only raised its stake in the credibility of the JIG's investigative findings but also made itself vulnerable to any mistakes and errors the report might subsequently be found to contain. Even today, the credibility of the JIG's findings is increasingly being challenged, and suspicions of the fabrication of evidence remain unresolved.

A Doubting Public

The widespread doubts about the Cheonan investigation results were confirmed by various surveys of the Korean public. The annual surveys conducted by the Institute for Peace and Unification Studies at Seoul National University show that only about one-third of South Koreans trusted the government's announcements on the cause of the Cheonan sinking (Institute for Peace and Unification Studies 2010-2012) (see Table 1). Moreover, the percentage of people who trust the announcements slightly decreased, from 32.4 percent in July 2010 to 29.6 percent in July 2012, while the percentage of respondents who distrust the announcements remains virtually unchanged (from 35.8 to 36.1 percent). Substantial differences in the level of trust by education and age are also apparent. More educated people were less trusting of the government investigation; whereas 46.2 percent of those with less than high school education trusted it, only 24.3 percent of those with college or higher education did. The younger generation was much less trusting than the older generation: While 43.3 percent of those aged 50 or older trusted the government investigation, only 20.3 percent of those under the age of forty trusted it.

The Cheonan Dilemmas

Whether coincidental or deliberate, the timing of the JIG's announcement on May 20 coincided with the official onset of the campaign for the June 2 local elections. (1) Starting with President Lee's nationally televised address from the Korean War Memorial on May 24, the South Korean government suspended trade and exchanges with North Korea, banned DPRK merchant ships from South Korean waters, and announced plans to install loudspeakers along the demilitarized zone (DMZ) to resume psychological warfare. The Lee government also sought a United Nations Security Council (UNSC) resolution to intensify international sanctions against the North Korean regime as the culprit for the Cheonan sinking.

However, in the aftermath of Lee's announcement, the South Korean stock market and the value of the South Korean won both plunged, demonstrating that the open economy of South Korea is much more vulnerable to heightened military tensions between the two Koreas than the closed economy of North Korea. In response to the South's plan for psychological warfare, the North Korean military warned that it would shoot out the loudspeakers, upping the military risks. These hostile exchanges made many South Koreans anxious about the possibility of escalating military conflict or even war. In the end, the government was compelled to retreat from the plan to install loudspeakers.

The nationwide local elections on June 2 dealt a serious blow to the Lee government as the Cheonan issue proved much less effective in bolstering conservative candidates than had been expected. The defeat of conservative candidates in the elections for mayor of Incheon and governor of Kangwon were particularly significant, given their geographic proximity to the incident. Baekryungdo, an island just 1 mile west of where the Cheonan incident took place, is formally part of the Incheon metropolitan area. Kangwon province borders the DMZ, and its residents were traditionally the most conservative voters with respect to North Korean issues. In this case, however, their ballots suggested strong doubts about the efficacy of Lee's hardline course. The liberal opposition's electoral slogan of "war or peace" etched the issue sharply and proved to have surprising resonance.

The management of the Cheonan issue also created foreign policy dilemmas. Before the Cheonan incident, US-DPRK dialogue was under way to resume the Six Party Talks. There were also signs of improvement in inter-Korean relations, and the possibility was even raised of an inter-Korean summit between Lee Myung-bak and North Korean leader Kim Jong-il. But the government's management of the Cheonan incident had profoundly negative effects on inter-Korean relations and the Six Party Talks. (2) Moreover, the Lee government experienced humiliating failures in the international arena. In spite of strong backing from the United States, the UNSC failed to adopt a resolution on the incident and instead produced a toothless presidential statement on July 9. The statement did not assign responsibility for the incident to North Korea. The ASEAN (Association of Southeast Asian Nations) Regional Forum in Hanoi turned out to be another diplomatic failure. The chairman's statement adopted on July 24 not only failed to blame North Korea for the Cheonan sinking but also did not even characterize the sinking as the result of an attack.

When the UNSC concluded its treatment of the Cheonan issue, China and North Korea both signaled a willingness to move toward the resumption of the Six Party Talks. However, South Korea insisted that the Six Party Talks should not resume without North Korea's apology for the sinking. As South Korea and the United States showed no immediate interest in resuming the multilateral talks, North Korea intensified its "holy war" rhetoric. North Korea's artillery shelling of Yeonpyeong Island on November 23, 2010, removed any remaining hope for improvement in inter-Korean relations for the rest of President Lee's term in office.

Suppression of Critics and the Decline of Freedom of Expression

From Moderation to Crackdown

After the JIG announced the results of its investigation on May 20, 2010, critics questioned the political motives of the timing of the announcement as well as the conclusions of the investigation. The government's response led not to an open debate but rather to suppression of free speech. This result was surprising, considering that South Korea was commonly regarded as a robust democracy. Moreover, few had anticipated that the Lee government would choose an illiberal approach to deal with the political opposition and civil society.

During the heated contest for the conservative Grand National Party's presidential candidate nomination between Lee Myungbak and Park Geun-hye in 2007, Lee was considered relatively moderate and less conservative than Park. Early in Lee's presidency, when the decision to import US beef was met with large candlelight demonstrations, the government oscillated between soft and hard-line approaches. The Lee government initially chose to take a soft approach, demonstrated by the president's public apology and the promise of renegotiation with the United States. Following an internal debate, however, the government chose to step up suppression of demonstrations and critical media reports.

However, many predicted that the hard-line policy would not last long. Even in the aftermath of the Cheonan incident, moderate elements holding key positions in the presidential secretariat and the ruling Grand National Party initially believed that, after a while, the government would ameliorate inter-Korean tensions and moderate its handling of domestic critics. (3) However, the government's response to the Cheonan incident further strengthened the position of hard-core conservatives within the administration. Moderate positions never prevailed, and the hard-line policy toward North Korea, as well as authoritarian approaches to free speech, became the norm.

The Lee government's suppression of dissenting views started even before the announcement of the JIG's findings. After the government announced the results of its preliminary investigation, which suggested the possibility that the warship sank due to a North Korean torpedo attack, the Supreme Prosecutors' Office announced that it would strictly punish those who spread malicious rumors about the incident on the Internet (Money Today 2010). On May 11, the prosecution indicted a young newspaper deliveryman on charges of defamation for posting a false fact online about the incident (Hankyoreh 2010). Numerous members of the online community were investigated and indicted for defamation or simply false communication on the Internet. After the JIG's official announcement of the investigation results on May 20, the police and prosecution stepped up their investigation of Cheonan-related rumors. Cyberspace censorship intensified as well. The Korea Communications Standards Commission (KCSC), upon request from the police, demanded that portals such as Daum and Naver remove posts critical of the government's investigation of the Cheonan. One person was even investigated and arrested on charges of defamation for posting a Cheonan parody video on a portal site (Herald Economy 2010). A man in his twenties was sentenced to ten months in prison with two years of probation and fined 1 million won (about US$1,000) for defamation because of his online post of a rumor that the Cheonan sank due to a collision with a US nuclear submarine (Chosun Ilbo 2011).

Fortunately, the Constitutional Court ruled on December 27, 2010, that the provision of the Framework Act on Telecommunications to punish false communication via telecommunications in the absence of defamation was unconstitutional. By that time, around forty people had already been investigated, ten indicted, and a soldier referred to the military for prosecution for false communication regarding the Cheonan incident (Kukmin Daily Kukinews 2010). However, the ruling was not of much help to those people who had been or would be prosecuted for defamation. Indeed, criminal defamation became a primary legal tool to suppress critics of the Lee government's policies. While the government and the conservative media mainly used the rhetoric of national security to denounce the critics--calling them pro-North Korea or antistate--actual prosecution was on the ground that questioning the government's investigations amounted to defaming the naval officers, members of the JIG, and the minister of defense. In the use of criminal defamation with regard to the Cheonan incident, the prosecution assumed that the government monopolizes the truth, implying that any dissenting opinions are false and hence defamatory for the relevant government officials.

On June 1, 2010, the People's Solidarity for Participatory Democracy (PSPD) sent a letter to the UNSC to convey doubts about the JIG's investigative findings. Some hard-core conservative groups demanded that the prosecution investigate the PSPD for defamation and violation of the National Security Law. The government and the ruling Grand National Party issued statements demanding that the group be strictly punished for an unpatriotic act that benefited the enemy. The prosecution launched a criminal investigation of six members of the PSPD leadership and staff. Although the prosecution eventually dropped the case, the lengthy investigation--over a year--had a chilling effect on civil society (Hankyoreh 2011; Media Today 2011).

A Chilling Effect

A number of experts, prominent intellectuals, and even lawmakers were accused of violating the NSL and defaming the military. Shin Sang-cheol, former naval officer and shipbuilding expert, participated in the JIG as a civilian member nominated by the opposition Democratic Party. He quit the JIG because he was not given access to important information necessary for the investigation (Shin 2012). Subsequently, he criticized the inconsistencies of the JIG's investigation and proposed the possibility of the Cheonan's first running aground in shallow waters and then having a second accident that might have been some sort of collision. Shin was indicted for defaming the minister of defense, the head of the JIG, and other generals. The prosecution also investigated him for possible violation of the NSL, but then dropped the case.

Kim Yong-ok, a famous philosopher, was also accused by conservative groups of violating the NSL and false communication when he said, "I am not persuaded even 0.0001 percent by the government's investigation of the Cheonan." The prosecution launched a criminal investigation of him, but he was not indicted (Ohmynews 2010a; 2010b).

National Assembly members Park Ji-won, Park Young-seon, and Lee Jung-hee, and Park Seon-won, former National Security adviser to President Roh Moo-hyun, were also accused by conservative nongovernmental organizations (NGOs) of defamation and violation of the NSL. Although the prosecution also eventually dropped these cases, the lengthy investigations had a chilling effect on legislators. In this environment, the National Assembly's special committee for the investigation of the Cheonan incident was unable to perform its task, convening just twice and dissolving within a month without conducting any meaningful inspection (Suh and Nam 2012).

The Lee government and its ruling Grand National Party even went to the point of denying freedom of conscience and opinion. They refused to approve the Democratic Party's nomination to the Constitutional Court of Cho Yong-hwan because he did not say that he "perfectly" trusted the government's investigation of the Cheonan incident, although he said that he trusted it "overall" (Hankyoreh 2012; Money Today 2012). Denying a basic right to freedom of opinion and expression to a nominee to the Constitutional Court was indeed ironic, as the court's main job is to protect the constitutional rights of Koreans.

South Korean Democracy Takes a Hit

Had the government possessed perfect evidence for a North Korean torpedo attack, there would have been no need to suppress the critics. Had the government announced that there was plausible evidence for a North Korean torpedo attack (although it could not completely verify the North's culpability), the Korean public would not have questioned the government's political motivation (Hwang 2010). Lee found that he had no return path once he chose, in spite of weak evidence, to declare North Korea as the culprit and demand that Pyongyang apologize for the attack. The multiple dilemmas that the government faced in the domestic and international arenas only stiffened its position. The moderate elements within the Lee government never gained momentum for the rest of the president's term. Negative consequences for freedom of expression and civil liberties in South Korea were inevitable.

In 2010, for the first time since the country's democratic transition of 1987, Freedom House downgraded the status of the country's "freedom of the press" from "free" to "partly free" (Freedom House 2011a). Freedom House's newly launched ratings on Internet freedom also placed South Korea in the "partly free" category (Freedom House 2011-2014b). Other organizations similarly gave South Korea poor ratings for press and Internet freedom. Reporters Without Borders (2012) Internet Enemies Report designated South Korea as a "country under surveillance," and the Open Net Initiative (2011) found "pervasive filtering" of the Internet with regard to security issues. Amnesty International (2012) voiced concerns about a worrying trend in South Korea of curtailing freedom of expression and association in the name of national security. In a lengthy report, Frank La Rue, UN Special Rapporteur on Freedom of Opinion and Expression, criticized the ROK government for a diverse set of limitations on freedom of expression, including the abuse of criminal defamation (2011).

Controlling Media

The Lee government was not alone in having a stake in the story of North Korean culpability. The conservative media, rather than advocating for freedom of expression, often labeled the critics pro-North Korea and demanded that they be strictly punished. Munhwa Broadcasting Corporation (MBC) and Seoul Broadcasting System (SBS) handed personal information to the police about people who posted critical comments on their websites (Kyunghyang Shinmun 2010). One's views about the Cheonan incident were treated by hard-core conservatives as a litmus test for being patriotic or pro-North.

As a result, for conservatives to admit errors in the official Cheonan investigation is still unthinkable, although a majority of the public has doubts about it. The successor administration under Park Geun-hye still finds it difficult to drop the demand for an apology from North Korea as a precondition for improvement of inter-Korean relations. Thus, suppression of freedom of expression regarding the incident did not stop with the end of President Lee's term in office. In this context, screening of a documentary film, The Cheonan Project, which put into question North Korea's responsibility for the warship's sinking, was an embarrassment for the government as well as the hard-core conservatives. When the film was released on September 5, 2013, screening of the film was abruptly halted just two days after it hit public theaters. The multiplex chain Megabox explained that it had received threats from an unknown conservative group for screening the movie and became concerned about the audience's safety (Herald Economy 2013). Many people suspected the government's involvement; otherwise Megabox could have requested police protection from the threats.

The conservative Lee and Park governments used the state's substantial power in broadcasting to attempt to control the media (Haggard and You 2015). The Korean Broadcasting System (KBS), MBC, and Educational Broadcasting System (EBS) are public broadcasters; only SBS is a commercial broadcaster. State ownership of media raises the issue of governance and how to assure that the state-owned media maintains independence from the government. The saliency of this issue increased during the Lee and Park administrations.

The Korea Communications Commission (KCC) was established in February 2008, replacing the Korean Broadcasting Commission. Of the five KCC commissioners, the president appoints two (including the chairman), and the National Assembly selects the rest. Thus, the KCC might be completely dominated by the governing party. Choi See-joong, the first chairman of the KCC, was a close associate of President Lee. During his chairmanship, the heads of KBS and Yonhap Television Network (YTN) were replaced by supporters of the president. During Lee's presidency, more than 180 journalists were penalized for writing critical reports about government policies or advocating press freedom. The Lee administration and the KCC were also criticized for favoring conservative newspaper companies in the licensing of new general-programming cable television channels (Freedom House 2012a; La Rue 2011). In the Park Geun-hye administration, state control of broadcast media has remained strong. The ruling party flatly rejected a proposal by parties of the political opposition to introduce a two-thirds majority rule for key personnel decisions in the KCC.

The issue of media control was not confined to broadcast media. The National Intelligence Service (NIS) tried to control and manipulate cyberspace. The NIS was found to have systematically manipulated the Internet and social media to denounce the opposition candidate during the 2012 presidential election (Haggard and You 2015). In 2013, the NIS scandal led Freedom House to downgrade South Korea's political-rights score from 1 to 2 (where, on a scale of 1 to 7, a smaller value denotes a higher level of freedom), while South Korea's civil liberties score remains at 2--a declining trend (Freedom House 2014c).

Why Defamation, Not NSL?

The previous section draws attention to the fact that while the government and the conservative media primarily relied on national security rhetoric, the primary legal tools used to go after critics were incongruous with this line. As Jae-Jung Suh (2012) notes, the prosecution did not indict a single critic for violation of the NSL. The primary legal provisions the prosecution employed to punish critics of the Cheonan investigation were those based on defamation in the Criminal Act and the Information and Communication Network Act. Various Internet regulations were also used to delete online posts that the police or the KCSC deemed to be false, defamatory, or advantageous to North Korea. The Internet real-name registration system, enacted under the liberal Roh Moo-hyun government, was used to constrain potential critics.

In fact, conservative media and NGOs accused many critics of violating the NSL, and prosecutors launched investigations of them on charges of such violations (Shin 2012). However, prosecutors apparently concluded that it would be impossible to get convictions based on the NSL, and that prospects of obtaining convictions on charges of defamation were much better. Since South Korea's democratic transition in 1987, South Korean courts have developed legal norms that make prosecution for violations of Article 7 of the NSL more difficult, but keep prosecution for defamation relatively easy.

According to Article 7 of the NSL, "Any person who praises, incites or propagates the activities of an antigovernment organization with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order" (emphasis added) can be punished. Following a 1990 Constitutional Court ruling, the italicized portion of the text was added in 1991 to limit the arbitrary use of Article 7. Although this amendment did not immediately result in major changes in the level of NSL prosecutions, the annual number of people indicted declined steeply during the liberal governments of presidents Kim Daejung and Roh Moo-hyun--from 609 in 1997 to 34 in 2007. Although that number rebounded under the conservative Lee and Park administrations to 110 by 2012, as Figure 1 shows, it is still far below the levels of the pre-Kim Dae-jung period.

However, the annual number indicted for defamation continued to increase after the democratic transition--rising slowly for a decade, jumping under the Kim Dae-jung government, and then skyrocketing under subsequent governments. The number remained below 1,000 until 1997; it surpassed 10,000 in 2011. These trends indicate that the main obstacle to freedom of expression in South Korea is now criminal defamation, as recent reports of international human rights and press freedom organizations attest. While they continue to note the abuse of the NSL as an important problem for free speech in South Korea (Amnesty International 2012), many international reports highlight criminal defamation as one of the most serious problems regarding freedom of expression in the country (Freedom House 2002-2014a; Open Net Initiative 2011; La Rue 2011; Reporters Without Borders 2012).

While criminal defamation has become a convenient legal tool for the prosecution to suppress free speech, it also creates dilemmas for conservative governments. First, the international community has been increasingly critical of the indiscriminate use of criminal defamation to suppress dissidents (Park 2008; Son 2012; Freedom House 2014a; You 2014). The Organization for Security and Cooperation in Europe (OSCE) has been campaigning for decriminalization of defamation since the late 1990s, and fourteen member-countries of the OSCE have removed defamation from their criminal code over the last decade. (4) Even Russia once decriminalized defamation, although Vladimir Putin recriminalized it after he was reelected as president in 2012. Decriminalization of defamation has also been spreading to countries in other regions such as New Zealand, Ghana, Sri Lanka, Uruguay, Argentina, and Samoa. The United Nations Special Rapporteur on Freedom of Opinion and Expression, Frank La Rue, specifically urged the Korean government to decriminalize defamation (2011). (5)

Second, defamation trials have ironically put the prosecution and the military on the defensive and defendants on the offensive. Since it is necessary for the prosecution to prove the falsity of the defendant's publication, in principle prosecutors should be more aggressive than defendants in defamation trials. In the case of Shin Sang-cheol, however, Shin has continuously requested the Ministry of Defense and the navy to provide key information from the Cheonan investigation and asked that members of the JIG and naval officers appear in court as witnesses. But the military has not even provided the court with the list of documents from the Cheonan investigation, and those who accused Shin of defamation have often failed to appear in court. Thus, Shin has been using the court as a venue to inspect the problems of the JIG investigation (Shin 2012).

Why Was the South Korean Government Able to So Easily Curtail Free Speech?

One important question is how the Lee government was easily able to abuse its power to suppress critics when South Korea is commonly considered a robust democracy. Possible explanations include the legacies of the Cold War, persistence of authoritarian values (Park and Shin 2006), lack of political liberalism (Choi 2009; You 2014), the heritage of authoritarian laws established during the Japanese colonial era or copied from Japanese laws, and lack of executive constraints (Haggard and You 2015).

An empirical study by Park and Shin (2006) based on the East Asian Barometer (EAB) survey data finds that contemporary Korean political culture shows a relatively high incidence of hierarchical-collectivist values and the Confucian notion of the state as a national family. In the EAB survey, nearly three-fifths (59 percent) of Korean respondents agreed that "the relationship between the government and the people should be like that between parents and children," and nearly half (48 percent) agreed that "government leaders are like the head of a family; we should all follow their decisions." These values might comport with acceptance of restraints on freedom of speech if political authorities deem them necessary.

The cultural explanation is related to the Cold War and weak acceptance of political liberalism on both sides of the ideological divide in South Korea's political history (Choi 2009). The enduring influence of the Cold War and the Korean War has shaped South Korea's political culture, making it susceptible to authoritarian values. This factor is especially pertinent to the abuse of the National Security Law and the use of national security rhetoric to restrict free speech. However, a comparison with Taiwan indicates that Cold War legacies are not enough to explain the continuing salience of national security with regard to freedom of expression in South Korea. Although the liberal Roh Moo-hyun government failed to repeal or substantially amend the NSL because of strong resistance from the conservative opposition--then led by Park Geun-hye--in contrast, the constitutional court on Taiwan declared unconstitutional in 2008 any restrictions on freedom of association and speech associated with communism.

These differences require more political explanations; much hinges on how security issues are mobilized in domestic politics. In Taiwan, the conservative Kuomintang (KMT) promotes reconciliation and cooperation with China, and the liberal Democratic Progressive Party advocates independence, creating tensions with Beijing. In Korea, by contrast, conservative parties have consistently sought to mobilize support on the basis of a more confrontational policy with North Korea, up to and including efforts to change the regime. Liberals, by contrast, have pursued engagement with the North and--under the Roh Moo-hyun government--repeal of the NSL (Haggard and You 2015). In this context, the North Korean regime has ironically helped the conservative governments mobilize the public on security issues by developing nuclear weapons, shelling Yeonpyeong Island, and carrying out other provocations that peaked in the spring of 2013 with a near declaration of war on the peninsula.

An important consequence of the Cold War in South Korean political culture is the fragility of political liberalism (Choi 2009; You 2014). While the conservatives justified government suppression of civil liberties in the name of protecting "liberal democracy" from the communist threat, the progressives tended to view liberalism and liberal democracy negatively, failing to distinguish liberalism from libertarianism. The lack of liberalism partly explains some of the illiberal approaches of the Kim Dae-jung and Roh Moo-hyun governments in their use of criminal defamation, enactment of excessive Internet regulations, and heavy government influence in broadcast media.

While the liberal governments were quite successful in reducing NSL prosecutions and helping to establish legal norms that narrowly interpreted Article 7 of the NSL to minimize abuses, they were equally responsible for expanding charges of criminal defamation. One important distinction between the liberal and conservative governments regarding defamation prosecutions is that while both prosecuted critics of government officials, conservative governments prosecuted critics of government policies as well. However, the liberal governments laid the foundation for further misuse of criminal defamation. For example, during Kim Dae-jung's presidency, five journalists were convicted of defamation because of their criticisms of the president as pro-communist. President Roh's senior secretary for civil affairs, Moon Jae-in, accused Monthly Joongang reporter Yoon Gil-joo of defamation, although the Supreme Court ultimately overturned the lower court's conviction (Son 2012). In fact, Freedom House's press freedom reports began to criticize the Korean government's use of libel laws during Kim Dae-jung's government (Freedom House 2002-2014a).

The liberal governments were also responsible for enacting various Internet regulations, including the content regulation and the real-name registration requirements, which subsequent conservative governments have used to conduct wide-ranging Internet censorship (Park 2012). Liberal governments also structured governance of the Korea Communications Commission and its predecessor, the Korean Broadcasting Commission, in ways that facilitated their control by the president and the ruling party. Since the progressive media and civil society groups under the liberal governments wanted state power to be used to weaken the influence of the conservative media, they did not pay much attention to the problem of excessive government influence broadcasting until it became a convenient tool of the conservatives. In short, the progressives' illiberal approach to control and weaken conservative media backfired.

Many authoritarian laws in South Korea have their origins in colonial Japanese laws (Haggard and You 2015). For example, Korea's Criminal Act that punishes defamation via true facts as well as insult has been directly copied from Japanese law. The National Security Law was modeled on the Japanese Law for Maintenance of Public Security. However, legal origins are not static; countries can pick and choose to some extent among different features of the law and can revise them as they deem appropriate. To understand why these authoritarian laws inherited or copied from Japanese laws have survived the era of democratization requires looking beyond the law per se to the political forces that continue to support these laws. The political explanation rests on the lack of executive constraints.

The decline in freedom of expression during the Lee Myungbak government reflects the ability of the executive to use a variety of instruments to manage the opposition without effective National Assembly and judicial checks on that discretion. Korea's constitution gives the president very strong power relative to the legislature and the judiciary. In addition, Korean presidents tend to have strong influence over the ruling party, and hence their power is unchecked when the ruling party occupies a majority of seats in the National Assembly. It is no wonder that freedom of expression declined under President Lee: he was unconstrained by legislative checks since his party enjoyed a stable majority throughout his term, whereas previous presidents had to work under a divided government for at least part of their term.

In this regard, the prospects for freedom of expression under the Park Geun-hye government are not favorable because her party will likely enjoy a majority at least until 2018, when the next National Assembly elections are scheduled to take place. In addition, lack of judicial independence and weak rule of law afford the president virtually unconstrained power. Moreover, the politicization of the prosecution is widely viewed as a serious problem in South Korea, and even the courts are often criticized for lacking political independence. Not surprisingly, political bias of the prosecution is extremely pronounced in defamation cases.

Conclusion

The Lee government's treatment of inconclusive evidence for a North Korean torpedo attack and its hard-line actions such as the 5-24 measures that followed created multiple dilemmas for the conservative government. It responded to the widespread doubts and questions about its investigation with intensifying suppression of free speech. International ratings of press freedom and Internet freedom for South Korea were downgraded. The recent scandal of NIS involvement in the presidential electoral campaign is particularly damaging to the South Korean democracy's international reputation.

The conservative Park Geun-hye government inherits the Cheonan legacies. While President Park has proposed a trustbuilding approach to North Korea, improvement in inter-Korean relations is still hostage to the South Korean government's insistence on a North Korean apology for the Cheonan sinking, for which the North vehemently denies responsibility. Nevertheless, political abuse of criminal defamation continues. The recent indictment of a Japanese reporter working for Sankei Shinbun and prosecutorial investigations of a number of reporters and former Blue House officials on defamation charges are particularly problematic.

South Korea's turn toward illiberal democracy since the second turnover of power in 2008 indicates a limit to the twoturnover test of democratic consolidation proposed by Huntington (1991). Given the enduring influence of the Cold War, the fragility of liberalism, and lack of executive constraints, South Korea's illiberal path and the decline of freedom of expression might continue for a considerable time. However, South Koreans have historically shown their strong desires for liberty and freedom, and many people have chosen to speak up in spite of prosecutorial threats.

The incumbent Park administration needs at least to downplay the Cheonan incident, drop the demand for a North Korean apology as a precondition for cancelling the May 24 Measures, and allow more open debate and information sharing about the incident. Furthermore, the government should consider removing defamation from the Criminal Act or at least stopping prosecution of people on charges of defaming public figures. Defamation of public figures, especially high-level government officials, should not be dealt with through criminal suits, and even civil suits need to be restrained, as the UN special rapporteur advised. Also, the government should respect Internet freedom and take measures to ensure the political independence of the broadcast media (La Rue 2011).

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Notes

(1.) In South Korea, the legal campaign period for local elections is thirteen days.

(2.) See in this issue Jae-Jung Suh's and Taehyun Nam's article regarding the effects of the Cheonan incident on inter-Korean relations and Yangmo Ku's article about the legacies of the incident in Northeast Asia.

(3.) Author's interview with an influential figure in the ruling Grand National Party at that time.

(4.) The countries are Armenia, Bosnia and Herzegovina, Cyprus, Estonia, Georgia, the former Yugoslav Republic of Macedonia, Ireland, Kyrgyzstan, Moldova, Montenegro, Romania, Tajikistan, Ukraine, and the United Kingdom.

(5.) UN Secretary-General Ban Ki-moon urged decriminalization of defamation when he visited Sierra Leone, but he was silent about the issue during visits to South Korea.

Jong-sung You is senior lecturer in the Department of Political and Social Change, Australian National University. His research focuses on Korean politics, comparative politics, and political economy. His publications include Democracy, Inequality, and Corruption: Korea, Taiwan, and the Philippines Compared (2015) and articles in American Sociological Review, Political Psychology, and Journal of East Asian Studies, among others. He can be reached at jongsung.you@anu.edu.au.

Table 1 Trust in the Government Investigation of the Cheonan
Incident, by Education and Age, 2012 (percentage)

                        Trust   Somewhat   Do Not
                                 Trust     Trust

Middle school or less   46.2      31.1      22.6
High school             31.2      34.7      34.1
College or more         24.3      34.8      40.9
19-39 years old         20.3      37.8      41.9
40-49 years old         30.0      34.5      35.5
50 or more years old    43.3      28.9      27.8

Source: Institute for Peace and Unification Studies (2012).
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