2013 Now in Korea: First Defense Statement

Südkorea, 2013
Das folgende Dokument kann hier als pdf eingesehen werden.

[The first statement of the defense on the case – request of the dissolution of the Unified Progressive Party]

“Requests of the dissolution of the UPP is violation of the spirit of the Constitution”

By Representative Lee Jung-hee at the first defense statement

- Date: 14:00 January 28, 2014
- Venue: Grand chamber of the Constitutional Court

1. The Constitution of 1987 was the expression of the national people’s will not to retreat to the past of dictatorship

The case - request of the dissolution of the UPP clearly demonstrates the radical retreat of democracy in Korean society. Democracy begins from recognizing there are different ideas from mine. It is the minimal condition for democratic politics that the ruler recognizes the existence of the opposition political parties which have different political opinions from the ruling power. Meanwhile, the first sign of dictatorship which is certainly conflicting with democracy is the ruler’s disrupting and prohibiting activities of the opposition political parties.

Korean society had long period of times under the dictatorship which sought to eradicate the opposition political parties. Examples include the Rhee Seung-man administration’s cancelation of the Progressive Party in 1958, the Park Jung-hee administration’s prohibition of political activities of 4,374 opposition politicians through the Act on Political Activities Purification in 1962 and the Chun Doo-hwan administration’s winding up of opposition political parties and deprivation of opposition politicians’ political rights by restricting 835 politicians from engaging in political activities through the Act on Politics Practices Reform in 1980. 
The current Constitution which was the fruit of the June Struggle of 1987 guarantees the political parties’ activities as well as other political rights. It is the expression of the people’s clear will not to repeat the past of dictatorship. Korea people were confident that under the Constitution, regardless of whoever takes power, Korean society would never be back to dictatorship. However Park Guen-hye administration destroyed this confidence by proceeding requests of the dissolution of the UPP in eight months of its inauguration. Of course, the final decision of the case will rely on the judgment of the Constitutional Court in terms of legal sphere. However, in terms of political sphere, the government already derailed from democratic politics by declaring it would not accept the existence of opposition political parties as long as they promote independence, democracy, equality and peaceful reunification.

2. The significance of the case

(1) The dictatorship conducted under the name of democracy even more severely undermines democracy.

Whether the lost democracy in political sphere can be recovered and revived at least in legal sphere, or whether the law is no more than a technique to provide formal legality cover to political acts without limits: the prolonged tensional relations between the law and politics are demonstrated in the case of requests of the dissolution of the UPP in its extreme. I think, this case may be the most political case in the history of the Constitutional Court since it was first established. The principles of a law-governed country which are the fundamental principle of the Constitution are based upon the premise that the law serves not as a technique to legitimize political acts but as a firm justice to redress unjust political abuses. The rule of law is one of the principles for realization of democracy and the Constitutional Court is one of the tools to realize democracy.
Democracy is our people’s direction and desire. Co-existence of different views is the premise of democracy. The so-called “defensive democracy”which was justified against political powers not hesitating to commit even crimes against humanism such as Nazism is often compared to fighting against a robber with a gun, with a knife. However today, the case is different. Seeking to dissolve a political party which shares the values of the dignity of life, peace and co-existence under the excuse of defensive democracy just because its views seem to be dangerous to the incumbent regime only can be compared to cruelly slashing a person who just wanted to initiate a conversation. In this situation, defensive democracy is no more than a tactic of dictatorship to cover itself with the skin of “democracy.” The dictatorship done under the name of democracy undermines democracy even much more severely. I ask the judges to accurately identify and distinguish this point and make a right decision. The trial is historically significant in whether it will be recorded as the best practice to realize the rule of law for the effective accomplishment of democracy or as the notorious political trial legitimizing the retreat of democracy.
(2) We should not confine the Constitution to the past of the Cold War

This trial is also very significant in the progress of the Constitution of the ROK. What judgment comes out will decide the fate of our Constitution whether it retreats to the one of the outdated Cold War era or progresses to the one of the future with diverse co-existence.
The incumbent government attempts to apply the decision of the Federal Constitutional Court of Germany in the 1950s to dissolve the German Communist Party to this case. The government first requested to dissolve the UPP for the so-called conspiracy of an insurrection case as it was confirmed and later is strongly arguing that regardless of the outcome, it is necessary to dissolve the UPP in terms of preventing future danger. It is also attacking the platform of the UPP as a camouflage tactic though the platform was decided through wide discussion of 100,000 members of the Party, reflecting reform demands of the majority of the people. In addition, it is stubbornly questioning hidden intentions and long-term purposes of the UPP though there are no such things. All of these attacks are derived from the government’s intention to dissolve the UPP like the German Communist Party.
However, adopting other country’s past case as a golden rule is no more than an irrational argument to go back to the past. Every judgment in the past has its limitations in the situation of the times. It is an inherent limit of human society. What makes the history progress is the capacity of mankind to correctly recognize the limitations of the past, reanalyze the past judgment, face the limitations of the present time, and seek for ways to usher in a better future. However, the incumbent government is in the anachronism, applying the judgment of the 1950s when the entire world was dominated by intensive tension of the Cold War immediately after the World War 2 to the case of 2014, 60 years later and when reconciliation and cooperation between the two Koreas have been sought for after the end of the Cold War. If we cannot stop this, our Constitution will retreat to the Cold War era of the 1950s.
Rather, we painfully recognize the limitations of the times where the legacy of the Cold War which has been overcome globally still remains as a painful old division system in Korean society, hindering the progress of democracy. How much longer should we keep a rigid society where citizens, religious leaders and political parties who are against the extreme policies of the government are attacked and condemned as following North Korea just because the South is conflicting with the North? While it is critical to change the present division system into peaceful reunification in order to move toward a better future, even more important thing is our efforts not to postpone the progress of democracy under the excuse of division. 
Please don’t confine our Constitution to the past of the Cold War. Please pave the way for our Constitution to move toward the future of peace, reunification and democracy. I believe that preventing the Constitution from being displayed as a remain of the past and developing it as the one living and breathing and ushering into the future is the way the Constitutional Court, the fruit of the June Struggle of 1987 to fulfill its mission to protect the Constitution.

3. The effective realization of the sovereignty of people is what the UPP has promoted

I am Representative of the UPP and a lawyer at the same time. The activities of the UPP to realize the effective sovereignty of people declared by the Constitution of 1987 are not different from what I wanted to achieve as a lawyer.
Article 1 of the Constitution of the Republic of Korea prescribes that “the Republic of Korea shall be a democratic republic. The sovereignty of the Republic of Korea shall reside in the people, and all state authority shall emanate from the people.” However, in reality, the sovereignty resides in the people only during the election campaigns. Campaign pledges are too easy to cancel and the people fall to the ignorant mass too easy to deceive. Moreover, during the last presidential election, a range of state agencies including the NIS illegally intervened in the election through attacking the opposition as pro-North Korea. The people who casted a vote after watching false investigation reports of the police were in fact targets for another deception. They were not respected as the sovereign. The UPP requested the government to be held accountable for the rigged election. It was to realize the sovereignty of the people. However, the UPP only ended up with the charge of bidding an insurrection and the request of the dissolution of the Party.
The Constitution prescribes the principle of the sovereignty of the people. However, if irregular workers lose their job just because they organized a trade union though the Constitution guarantees the right to organize, can we say the sovereignty of the state resides in them? Are the farmers who only find themselves in increasing debts as they cannot earn even the cost of production how hard they work really the sovereign of the ROK? Is there actually the right to live as a decent person guaranteed for a father who kills himself to allow his handicapped child eligible for governmental livelihood support.
Unlike what the Constitution says, it is undeniable truth that Korean society is divided into the privileged and the underprivileged. The UPP values the realization of the genuine sovereignty of the people most. To that end, we believe unjust and unfair privilege should be eliminated and workers, farmers and low-income group whose fundamental rights have been violated should be capable of exercise their rights as a sovereign. It is the world the UPP has consistently promoted and the world where working people are the owner. The UPP has always promoted the elimination of the unfair privilege and guarantee of equal sovereignty. The UPP has never said to invest sovereignty to a certain group of people or deprive fundamental rights of another group of people.
If a country cannot protect its territory with its own military, it is like lacking complete sovereignty. Therefore, in its platform, the UPP said the phased withdrawal of the U.S. troops stationed in Korea as well as stepping up the establishment of peace and reunification is necessary for the complete realization of the sovereignty.
Regardless of the opinion of the Korean people as a sovereign, the U.S. and the Soviet Union drew a line to divide the nation right after it was liberated from the Japanese colonial rule, resulting in the Korean War. The UPP has presented for the two Koreas to recognize pains and differences of each other and achieve the peaceful reunification in accordance with the principle of peaceful reunification described in the Constitution, thereby overcoming the damage of confrontation caused by the conflicting super powers in the past without any more pains. However, the incumbent government insists that the UPP is unconstitutional as it doesn’t suggest reunifying the Korean Peninsula by the South absorbing the North. However, I believe the claim to absorb the North will only cause another armed conflict and intervention of super powers and so it is the violation of the Constitution which declares the peaceful reunification. I believe the claim is unconstitutional with risks of triggering restrictions on other sovereignties.
Most of the evidence that the government collected to accuse the activities of the UPP to realize the sovereignty of the people as unconstitutional is prejudices and misunderstandings on the UPP created by the NIS through internet postings and comments as well as groundless rumors and assumptions based on them. The rest of the evidence provided by the government is mostly documents on private activities of individuals unrelated with the UPP or already excluded evidence in related criminal cases due to its illegality in collection. Some are even interpreted by contraries. The government has insisted that the Democratic Labor Party, predecessor of the UPP revised its platform according to the orders from North Korea. But today, the government admitted it could not tell how and through whom the order was delivered to the party.  
The government suggests Representatives, staff, and executives of the UPP were selected by the orders from North Korea. I strongly wonder by whom such orders were delivered. Accusing the UPP of being unconstitutional based on groundless assumptions should be over. Nevertheless, again in today’s proceeding, the government side is referring to false allegations with doubtful admissibility of evidence or those that cannot be found in any evidence provided by the applicant as if they are confirmed facts. It is really regretful that the proceeding of today shortly before the Lunar New Year’s holiday when political issues have greater ripple effect than usual is clear to be deliberately scheduled by the government of ill political intention to infuse distorted false ideas into the people via the media. 
The government should present the facts composed of strict evidence to the judges of the court. However today the government side is only referring to the distorted second evidence without any further explanation such as the transcripts that the NIS which created the transcripts already admitted hundreds points were fabricated or distorted as well as reports on the comments of the staff members of the UPP, meanings and intentions of which were also distorted.
For example, the government's argument that communism was referred to in revising the platform of the UPP is a typical distortion. In fact, the actual comments made at the Party Conference in June 2011 were to persuade delegates and members of the UPP who raised opposition to deleting the statement that the party succeeds ideals and values of socialism from the platform. As there were a significant number of people who opposed the removal, on the premise that "though there would not be anyone who promotes communism within the UPP," "communism" was only referred to say, even self-declared communists who ultimately aim to liberate people may agree with the revision of the platform though there are some points that they don't agree with, so please give your motion rather than protest. Interpreting the comments as the revised platform represents or implies communism is totally absurd. The government's behavior repeating and adding distortion to distortion reminds me of Paul Joseph Goebbels, notorious propaganda minister in the Nazi Germany.
Joseph Goebbels said "give me just one sentence, then I can make anyone a criminal." I wonder what is different between the attitude of the Korean government of today and that of this propaganda minister of the Nazi Germany, the origin of“ the defensive democracy”.
If careful and strict evidence-based investigations are made, the distortion and exaggeration of the government will be clearly revealed at the court to the public.
4. Requests of the dissolution of the UPP is causing the deprivation of workers, farmers and low-income group's political rights and the violation of the people's fundamental rights
Though I stand here today as Representative of the UPP, the defendant, what I try to protect is not just the constitutional protection of the UPP as a political party. Rather, I feel much more responsibility to prevent the violation of each individual citizen's fundamental rights resulted from the dissolution of the UPP.
The UPP has dedicated itself to creating the politics where workers, farmers and low-income group can have the ownership. The vast majority of the membership is workers and farmers. Most of the staff members, nominated representatives and representatives of the UPP are from workers and farmers.
In the UPP, there are no local notables who inherited the politics as a family business, no big company owners who entered the politics with the enterprises as a foothold, and no opportunists who tried to buy nomination with money. The UPP has identified itself as a political party to help those who have neither asset nor academic backgrounds can enter politics. The UPP has proactively proposed bills for workers and farmers including the bill to eliminate the dispatched workers system and change the status of all the irregular workers to regular and the bill to protect farmers and self-employed people affected by the FTAs.  
The requestof the dissolution of the UPP violate the rights of workers, farmers, and low-income group to organize political opinions who express their opinions by providing support to the UPP. The dissolution of the UPP will also lead to derivate workers, farmers, and low-income group of the tools to realize their political rights in accordance with their own will when they try to participate in political party's activities and be elected to public posts. In addition, the already vulnerable attempts for workers, farmers and the low-income group to execute their rights as a sovereign by proposing and legislating necessary laws through the UPP will be prohibited. Therefore, in balancing conflicting interests, the court should consider not only the UPP's rights to political activities but also the violation of the citizen's fundamental political rights realized through the UPP significantly.

5. Filing for an injunction is to prevent the UPP from participating in the June 4 local elections
The government is encouraging the politicalization of the trial, by filing for an injunction to prevent the UPP from running candidates in the upcoming June 4 local elections. Your honor, as you know, the local elections are not changing political authority like the presidential election. It is to facilitate local governments and guarantee residents' participation. The UPP has contributed more actively and positively than any other political parties to effective realization of a local self-governing system and local residents' participation by proposing ordinances to change the status of irregular workers to regular, pay dry field subsidy, and establish citizens' participatory budget system. In this regard, the government's attempt to completely prevent the UPP from participating in the local elections through an injunction is no less than a political suppression against political opponents to take the initiative in the political situation while totally neglecting the merits and nature of the local elections, the effective realization of the local self-governing. 

6. The government should withdraw the request to dissolve the UPP and publicly present the direction of democracy.
Your honor,
Due to the case – request of the dissolution of the UPP, first of its kind in history since the beginning of the constitutional government, today all of us are at a crossroads of having a country which forcefully dissolves a political party to eliminate political opponents or a country which develops democracy through free exchange of various opinions and people's evaluation via elections. I ask the government to withdraw the requests and declare publicly to take the direction of democracy before too late. If the government insists the request, I hope the judge will make a wise decision to dismiss the request so that it becomes the last case of an attempt to dissolve a political party. Thank you for your attention.