The ‘Park Won-soon Suit’ sued by the NIS, More Absurd than the ‘PD Diary Suit’

[Duplicity of Rule of Law]

Lately, I had an opportunity to discuss at a seminar which reviewed the legal issues on the defamation suit raised by the National Intelligence Service(NIS) against Park Won-soon, the executive director of the Hope Institute. Let me share a thought occurred to me from that opportunity with the readers of [Duplicity of Rule of Law].
 
As it is widely known, the defamation case started with the interview of Park Won-soon, a lawyer and model civil activist of our society, and he mentioned that there is the NIS behind the background of the interruption of corporate sponsorship and joint projects with the government since the inauguration of the Lee Myung-bak government. The NIS asserted that the interview is not true and sued Park to compensate as he harmed the reputation of the NIS and the government.

The Difference between the ‘PD Diary Suit’ and the ‘Park Won-soon Suit’
 
We can distinguish this civil defamation suit from the <PD Diary> case of MBC, which accused the journalists criminally invoking the sin of slander. A criminal suit is a legal procedure to maintain law and order by applying criminal sanctions exercising governmental authority, but a civil defamation suit is the one to compensate materially on private wrong which occurred between individuals. Ultimately, it is tantamount to the Minister of Justice, who accepted the opinion of NIS and brought the action, which placed the country in the state of the plaintiff, insisted that a nation could be a party to a civil suit.

There are circumstances which the countries can participate in legal disputes as individuals. When a country deals on the property, disputing over the business is essentially different from exercising authority for the public such as maintaining orders, therefore there is no reason to regard it differently from the disputes between individuals. In this case, it arises no problem legally and socially to recognize the country on the same status as an individual.
 
However, a country’s defamation claiming against its citizen is far different from proprietary disputes in many aspects. Besides the controversy about the existence of ‘honor’ that the government insists, recognizing a country as the subject of civil litigation the same as individuals causes a particular constitutional problem. Criticizing the governmental agencies is a fundamental democratic right guaranteed by the Constitution. When the freedom of the press of people is constrained by legal processes, it could cause an anti-constitutional problem damaging democracy. Accordingly, a country can litigate a civil action as an individual, only when there is a specific legal basis.

Our legal system does not regard the country the same as individuals except the several cases mentioned above. A country is established by the Constitution to achieve particular public objects like guaranteeing the individual rights and maintaining orders. Therefore the country is distinguished from ordinary people, and the relationship between the country and its people is governed by the public order and the disputes are resolved by the administrative or criminal proceedings. The legal system separates the public and the private law system strictly.
 
A legal system like this recognizes the country to have a special status which achieves a specific purpose called ‘the right to maintain order’. It is natural that a country in such position cannot enjoy the various rights between its citizens. It can only enjoy those rights whenever the exceptional need is admitted specially by the law. Our current law does not state legal bases to guarantee the nation’s honor by civil or criminal action. It only opens the possibility to correct the reports against national agencies by requesting a rebuttal report or correction when something inappropriate happens.

The Nation’s Right to Sue for a Defamation is not Accepted even in Anglo-American Law Countries

Not every society invests the country the special legal status which is distinguished from individuals. In Anglo-American Common law countries, those who consider the government as one of the various organizations of the society, it is general to cognize the status of a country the same as that of an individual. As they cognize the legal relationship mainly according to material functions, they have a strong tradition to deny the distinctions between the public and the private law. However, even in the countries of pluralistic legal systems like these, it is general not to recognize the status of nations or public organiztions to sue a defamation lawsuit against their people. It is because recognizing that status involves the risks of depressing free speeches and being counter-democratic.

We need to beware of this suit, because it is an attempt to establish a new social controlling technique that tries to resolve the criticism activities by civil proceeding measures, not by criminal ones. Even if the national honor is a value to be protected legally, compensating materially is an inappropriate way to protect it. According to our legal system, a civil action is not a procedure which realizes the purpose of law by sanctions of criminal actions, and it can not be the national purpose to fill the coffers of the government by winning the cases between its people.
 
If it is necessary, it would be an rather right attitude that fits the purpose of law and order to rule it to be punished by criminal penalty as in the case of country contempts.(Though the citizens would not agree with this alternative.) Therefore, it is natural to regard this lawsuit as an attempt to strengthen political and social privileges by manipulating the law along with the attempt to consolidate liabilities of compensations of those who promote rallies and labor disputes. Ultimately, this lawsuit is kind of a ‘Strategic Lawsuit Against Public Participation’, which oppresses public and social activities using civil lawsuit, and it is a governmental power abuse which can cause a significant adversing effect on the right to express.

Since the inauguration of the Lee Myung-bak government, people have recently been  gaining influence in our society who are against liberal-democracy, try to achieve its political goal by misleading the rule of law, the fundamental principle of the modern constitutionalism, and suppress the freedome of  expression.

They are doing the governmental power abuses which cause the anti-constitutional effects as in the cases of the <PD Diary> Case, the Minerva Case, habitual protest blockings, indiscriminate prosecutions over the protest-participants and much more, which is not the exercising of the right public power by the sectarian concerns and makes the social conflicts amplifying. The defamation suit raised by NIS is one of these regressive authority abusing cases. To normalize the democratic constitutionalism as soon as possible, we need a national effort urgently.