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A tool for delegative governance? : South Korea's National Security Law and delegative democracy Kim, Dongwoo 2016

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     A TOOL FOR DELEGATIVE GOVERNANCE? SOUTH KOREA’S NATIONAL SECURITY LAW AND  DELEGATIVE DEMOCRACY  by  Dongwoo Kim  B.A. (Honours), University of Alberta, 2014      A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF   MASTER OF ARTS  in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Political Science)        THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)  August 2016  © Dongwoo Kim, 2016   ii Abstract The paper seeks to clarify the relationship between South Korea’s National Security Law (NSL) and democracy. The NSL is a special law that seeks to address the security threats from North Korea, criticized for limiting fundamental civil and political rights. However, these criticisms have shown limited effectiveness in light of the argument that South Korea has unique security needs that require some compromise. In order to demonstrate more effectively that the NSL is problematic for South Korea’s democracy, I argue that the continued use of the law makes more sense if South Korea is considered to be a “delegative democracy,” a defective subtype characterized by weaknesses in horizontal accountability and violation of civil rights, as opposed to a representative democracy that it purports to be. As such, I demonstrate that the opportunity cost of the continued use of the NSL is much greater than occasional violation of civil rights, and that it facilitates problematic behaviours by the executive that is not compatible within a representative democracy that South Korea is supposed to be. Ultimately, this paper raises the urgency to demand more information and transparency in the use of the NSL in South Korea today.     iii Preface This thesis is original, unpublished, independent work by the author, Dongwoo Kim.   iv Table of Contents  Abstract.............................................................................................................................. ii	  Preface............................................................................................................................... iii	  Table of Contents ............................................................................................................. iv	  Acknowledgements............................................................................................................ v	  Dedication ......................................................................................................................... vi	  1. Introduction................................................................................................................... 1	  2. The National Security Law and Delegative Democracy ............................................ 6	  2.1 What is the National Security Law and What Does It Do?....................................................6	  2.2 Why Delegative Democracy?.................................................................................................8	  3. The National Security Law within Delegative Democracy ...................................... 15	  3.1 The National Security Law Prior to Democratization..........................................................15	  3.2 The National Security Law in Democratized South Korea: Crisis and Horizontal Accountability ............................................................................................................................18	  4. Case Study: The National Security Law and the Disbanding of the Unified Progressive Party (UPP)................................................................................................. 27	  5. Conclusion.................................................................................................................... 34	  Bibliography .................................................................................................................... 36	          v Acknowledgements Completing my MA program would have been impossible without the help from so many people, and I would like to acknowledge them on this page.  First, I would like to express my gratitude for Dr. Maxwell Cameron for encouraging me to further pursue my term paper, and also supervising this thesis that grew out of it. I am would also like to thank Dr. Yunshik Chang for serving as the external examiner and providing valuable feedback on the thesis.  Second, I would like to thank my professors at the University of Alberta for their encouragement and guidance throughout my undergraduate degree and graduate school application. Specifically, pursuing graduate education would not have been possible without the support from Dr. Greg Anderson and Dr. Judith Garber in the Department of Political Science and Dr. James Muir in the Department of History and Classics. Also, I would like to thank Dr. Don Carmichael, Dr. Jeremy Caradonna, Dr. Gerhard Ens, and Dr. Andrew Gow for teaching me how to enjoy what I study. Third, I am grateful for the generosity of the Government of Alberta and the Social Sciences and Humanities Research Council that has allowed me to pursue higher education without financial constraint.   Lastly, I am grateful for the unconditional support from my parents and my sister, Nayoun; nothing would have been possible or meaningful without them.   vi Dedication For umma and appa.   1 1. Introduction On December 2014, the Constitutional Court of the Republic of Korea ruled that the Unified Progressive Party (UPP) espoused an ideology that could not be reconciled with the “fundamental liberal democratic order” of the state, and that therefore, it should be disbanded immediately.1 For the first time since 1961, a political party, with popularly elected members, had been disbanded by the state in South Korea. International and domestic outcry followed this rule. On November 2015, the United Nations Human Rights Committee expressed its concerns about the dissolution of the UPP and the National Security Law (NSL).2 And thus the NSL, legislation that is as old as the South Korean government, emerged in the core of the controversy again. The ruling against the UPP had been justified through the NSL, which establishes the espousing of ideologies of anti-state organizations as a criminal act. The disbanding of the UPP and the resurgence in the use of the NSL since 2008 compels an inquiry into its relationship with the state of democracy in South Korea.  The NSL is a law that seeks “to restrict anti-state actions that jeopardize national security and to ensure the state’s security, people’s life and freedom,” with North Korea as the main “anti-state” actor that it targets.3 The law specifically addresses threats from North Korea, and it is separate from the criminal law, which also contains clauses on treason. Critics of the NSL have pointed that it does not have a place in a democracy, as it                                                  1 Hyonbeopjaepanso [Constitutional Court of Korea], December 19, 2014, 2013 da 1, Tonghapjinbodang Haesan [Disbanding of the Unified Progressive Party] 26 Hyonbeopjaepanso panryejib [Constitutional Court Case Reporter] 26-2 (2013, No 1). 2 Centre for Civil and Political Rights, "Concluding observations on the fourth periodic report of the Republic of Korea," Centre for Civil and Political Rights, November 2015, http://ccprcentre.org/files/documents/CCPR_C_KOR_CO_4.doc (accessed July 8, 2016). 3 National Security Law, Art.1 (R.O.Korea).    2 violates basic civil rights such as the freedom of speech or freedom of conscience.4 However, democracy itself is a dynamic and multifaceted concept, and thus it is challenging to assess what constitutes problems for it and to what degree (for instance, to what extent is the violation of civil rights problematic in a democratic regime?). Further, the assessment of a democracy becomes even more challenging when examining its relationship with security, for there is a widely acquiesced notion that security and democracy must be balanced in exceptional circumstances, which is an idea that has been brought up by the likes of Locke, Rousseau, Lasswell, and Dahl.5 In this light, most of the critiques of the NSL thus far, which have concentrated on its violation of civil rights, have been rendered ineffective, in the sense that civil rights have been framed as a part of democracy that could be limited to accommodate South Korea’s exceptional security needs vis-à-vis North Korea. However, the examination of the law and its uses since 1948 points to the NSL’s political role in limiting inclusion and violation of horizontal accountability; and that its influence upon South Korea’s democracy stretches beyond the occasional violation of civil rights. And this is where I identify the problématique of this paper—that is, finding a way to clarify and articulate the relationship between the NSL and South Korea’s democracy through these challenges. The examination of the NSL and its uses                                                  4 See Amnesty International USA, "The National Security Law: Curtailing Freedom of Expression and Association in the Name of Security in the Republic of Korea," Amnesty International USA, November 29, 2012, http://www.amnestyusa.org/research/reports/the-national-security-law-curtailing-freedom-of-expression-and-association-in-the-name-of-security-i (accessed July 8, 2016); Centre for Civil and Political Rights, "Concluding observations on the fourth periodic report of the Republic of Korea”; and Human Rights Watch, "South Korea: Cold War Relic Law Criminalizes Criticism," Human Rights Watch, May 28, 2015, https://www.hrw.org/news/2015/05/28/south-korea-cold-war-relic-law-criminalizes-criticism (accessed July 8, 2016). 5 Sharon Weinblum, Security and Defensive Democracy in Israel: A critical approach to political discourse (New York: Routledge, 2015), 1.    3 demonstrate that the law poses problems beyond occasional limitation of civil rights. Its uses during the authoritarian era have contributed to the marginalization of leftist ideologies in the name of national security. Moreover, the NSL continues to be used by the government for undemocratic practices in which horizontal accountability is violated and dissenters are quashed in a similar manner that autocrats did prior to South Korea’s transition to democracy in 1987. In this, I have found that Guillermo O’Donnell’s delegative democracy provides a model that brings these factors together and explain the relationship between the NSL and South Korea’s democracy.  Delegative democracy is one of the subtypes that Wolfgang Merkel identifies in his study of defective democracies. Merkel starts from the concept of “embedded democracies,” in which five “partial regimes” (electoral regime, political liberties, civil rights, horizontal accountability, and effective power to govern) must be “mutually embedded” in order for a democracy to function effectively.”6 Defective democracies are ones in which one or more of these partial regimes are dis-embedded, and specifically civil rights and horizontal accountability in case of delegative democracies.7  O’Donnell, who first created the concept, defines delegative democracies as newly democratized regimes that have inherited a crisis from the previous authoritarian governments, and thus have executive branches that exploit this sense of urgency to resolve it, acting not as a representative, but as a delegate, in disregard of horizontal accountability.8 In this, horizontal accountability is defined as “the existence of state agencies that are legally empowered—and factually willing and able—to take actions ranging from routine                                                  6 Wolfgang Merkel, "Embedded and defective democracies," Democratization 11, no. 5 (December 2004): 43. 7 Merkel, “Embedded and defective democracies,” 50. 8 Guillermo O'Donnell, "Delegative Democracy?," The Helen Kellogg Institute for International Studies, https://kellogg.nd.edu/publications/workingpapers/WPS/172.pdf (accessed July 8, 2016).    4 oversight to criminal sanctions or impeachment in relation to possibly unlawful actions or omissions by other agents or agencies of the state.”9 Numerous scholars have already pointed out that South Korea displays features of a delegative democracy, pointing to the weakness in horizontal accountability; this is not the main claim of this paper. Neither is the point that South Korea has a permanent crisis from the north that has influenced its politics; this is an obvious observation. Instead, I am showing the NSL and its problems are better captured and explained if the law is seen as complementary part of delegative democracy, a specific, defective subtype of democracy, that has been clearly defined and outlined by academics. More specifically, I demonstrate how the NSL has contributed to the creation and perpetuation of the sense of crisis, which regards ideological differences as a security threat, facilitating delegative behaviours by the executive branch, in which not only civil rights, but also horizontal accountability have been violated for exclusion of certain political actors. As such, the use of delegative democracy adequately brings together the political and historical particularities of the South Korean case and translates them into specific symptoms characteristic of the model. Ultimately, I demonstrate that the place of the NSL is better explained within the delegative model, a defective subtype, which conflicts with the representative model, which South Korea purports to be; and therefore, I present a much more problematic relationship between the NSL and South Korea’s democracy, and raise the urgency to approach the law in a more critical manner.     The paper is organized in the following manner. The first section provides background information on South Korea’s democracy and the NSL. Further, I explain the analytical advantages of using delegative democracy as a conceptual yardstick. In the                                                  9 Guillermo O'Donnell, "Horizontal Accountability in New Democracies," Journal of Democracy 9, no. 3 (1998): 117.    5 second section, I follow the uses of the NSL throughout the twentieth century to demonstrate that while the law was created to “ensure the state’s security, people’s life and freedom,” it has been used to create and perpetuate a sense of crisis that has justified the prosecution of dissidents, in which ideas critical to the government have been conflated with threats to national security and subsequently quashed in a manner that violates horizontal accountability.10 Finally, I examine the dissolution of the UPP in 2014 as a case study that demonstrates how the NSL could be explained within South Korea as a delegative democracy. The focus of this paper is narrow. The objective is to show how the NSL remains a problematic inheritance from the authoritarian times. The NSL is only one of many unfortunate legacies of the authoritarian governance in South Korea, and due to the limited scope of the paper, it is difficult to present a comprehensive picture of the unfortunately extensive history of the NSL. Thus, the focus on the particular depiction of the NSL is not meant to underemphasize other important discussions about it; instead, I present this paper as a piece of bigger puzzle.                                                      10 Gukga Boanbeop [National Security Law] (Law No. 11042, 2011), Art.1 (R.O.Korea).    6 2. The National Security Law and Delegative Democracy 2.1 What is the National Security Law and what does it do? The NSL is a law that seeks “to restrict anti-state actions that jeopardize national security and to ensure the state’s security, people’s life and freedom.”11 The NSL consists of four chapters: Preamble, Crimes and Sentences, Instructions for Special Prosecutions, and Rewards and Merits. The Preamble states the raison d’être quoted above, and defines the “anti-state organization” as “domestic or foreign organizations or groups whose intentions are to conduct or assist infiltration of the state or to cause national disturbances.”12 Then, the second chapter of the NSL lists the acts that are deemed to be criminal under this legislation, and the corresponding sentences. It lists the following activities involving the “anti-state organization” as of criminal nature: “organization of anti-state organization” (Article 3), “execution of a mission” (Article 4), “volunteering or provision of financial assistance” (Article 5), “infiltration or escape” (Article 6), “praising or sympathizing” (Article 7), “meeting or communicating” (Article 8), “provision of assistance” (Article 9), and “failure to report” (Article 10). As such, the NSL restricts a wide range of behaviors, especially through Article 7 and Article 8, violating fundamental rights such as freedom of conscience and freedom of association, guaranteed by the South Korean Constitution.13  As such, the NSL directly comes into conflict with the partial regime of civil rights and the critics of the law have focused on this aspect. Particularly, Articles 7 and 8                                                  11 National Security Law, Art.1 (R.O.Korea). 12 Ibid., Art.2 (R.O.Korea). 13 Hyonbeop [Constitution], Art.17-19 (R.O.Korea).    7 of the NSL, which criminalizes “praising or sympathizing” North Korea and “meeting or communicating,” come into conflict with the freedom of speech and freedom of assembly. Most of the NSL charges involve the violation of Article 7; since 2009, more than half of the individuals who were arrested were accused of violating the NSL by posting materials that praise or sympathize with Pyongyang, which points to the law’s limitations on freedom of speech.14 Indeed, Diana Kraft demonstrates that the NSL violates the standards set by the Universal Declaration of Human Rights (1948); the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society (1998); International Covenant on Civil and Political Rights (1976); the Siracusa Principles (1984); and the Johannesburg Principles (1996).15 Accordingly, various human rights organizations around the world have been demanding for the abolition or at least a revision of the NSL.16 Scholars have highlighted this point, while also pointing to the fact that there are laws, such as the treason clause in the criminal law that could address actual acts of insurrection.17 As such, the NSL is primarily problematic as it comes into direct conflict with the partial regime of civil rights. However, as mentioned in the introduction, the argument that the NSL violates civil rights has been ineffective against the narrative of “balancing” security and democracy. In this context, the analysis of the NSL as part of delegative model provides a different and a more effective avenue to determine its relationship with South Korea’s democracy.                                                  14 Sang-sik Park, "Guggaboanbeob je7joui namyongsalyewa haeseoge gwanhan yeongu [A Study of the Abuses and Interpretations of Article 7 of the National Security Law]," Beobhagyeongu [Legal Studies] 21, no. 4 (2013): 6. 15 Diane Kraft, "South Korea's National Security Law: A Tool of Oppression in an Insecure World," Wisconsin International Law Journal 24, no. 2 (2008): 641-646. 16 See Amnesty International USA, "The National Security Law”; Centre for Civil and Political Rights, "Concluding observations on the fourth periodic report of the Republic of Korea”; and Human Rights Watch, "South Korea: Cold War Relic Law Criminalizes Criticism.” 17 Park, S., “A Study of the Abuses and Interpretations of Article 7 of the National Security Law,” 8.    8 2.2 Why Delegative Democracy? In this section, I justify the use of O’Donnell’s delegative democracy as the theoretical yardstick that clarifies the relationship between the NSL and South Korea’s democracy. As democracy is a complex and multifaceted concept, it is necessary to establish exactly what constitutes problems or challenges for it. While South Korea’s democracy has been examined within the consolidation paradigm, I demonstrate below that it is a limited concept. Instead, I choose delegative democracy to clarify the relationship between South Korea’s democracy and the NSL. First, delegative democracy is a defective subtype of democracy, and academics have specified the violation of civil rights and horizontal accountability as its defining features. Thus, framing the use of the NSL within the delegative model clearly and specifically demonstrates how the law is problematic vis-à-vis democracy. Secondly, the use of delegative democracy adequately captures and explains the historical and political dimensions of the NSL; it helps demonstrate how the sense of crisis created in the pre-democracy era to justify authoritarian practices that marginalized dissenting ideologies as threats to national security continue to be perpetuated through the NSL today, in the form of delegative governance. In this, I demonstrate how the NSL has not only occasionally violated civil rights to meet the security needs, but also complemented and facilitated delegative behaviours by the executive branch at a more foundational level. In the literature, the discussions about South Korea’s democracy have taken place within the “consolidation” paradigm. South Korea only recently (1987) made a successful transition from military dictatorship to democracy. Thus, the challenges or problems that    9 its democracy faces have been mostly described in the language of maturing or consolidating in the vein of the transitions narrative.   However, consolidation is a problematic concept because it lacks clarity and furthers a teleological view of democratization, in which traits of older polyarchies are conflated with the objective telos of the process. Democratic consolidation refers to the final stage of the democratization—that is, the maturation of a democracy, firmly entrenched to the extent that it can withstand external shocks; in other words, as Juan Linz and Alfred Stepan put it, democracy is consolidated when it becomes “the only game in town.”18 However, it is unclear as to what this looks like and confusion and conflation have emerged, to the extend that Andreas Schedler points out that the list of problems of democratic consolidation has “expanded beyond all recognition.”19 Schedler further emphasizes that consolidation should not be confused with “completing” or “deepening” democracies, and argues that its meaning should instead be limited to avoiding “democratic breakdown” or “avoiding democratic erosion.”20  The debates on South Korea’s democratic consolidation, marred with lack of clarity and consensus, reflect these problems. Three decades after the transition, South Korea’s formal institutions of democracy have been firmly entrenched; there is a consensus that democracy has become “the only game in town” with no likelihood of immediately reverting back to authoritarianism.21 Hahm Chaibong optimistically (and wrongly) argued that South Korea had successfully reached democratic consolidation in                                                  18 Juan Linz and Alfred Stepan, "Toward Consolidated Democracies," Journal of Democracy, April 1996: 15. 19 Andreas Schedler, "What is Democratic Consolidation?," Journal of Democracy 9, no. 2 (1998): 91. 20 Schedler, “What is Democratic Consolidation?” 103. 21 Uk Heo and Sung Deuk Hahm, "Political Culture and Democratic Consolidation in South Korea," Asian Survey 54, no. 5 (September/October 2014): 919.    10 2008, citing the expansion of ideological spectrum that included the left, inclusive turnover of power, attitudinal change towards elite pact making, and resistance to internal and external shocks to the system.22 However, some scholars still argue that South Korea’s democracy has not been consolidated. For instance, Heo Uk and Hahm Sung Deuk have attributed its “political culture” as to why “the rule of law is repeatedly violated, and democratic institutions do not mature to the level of inevitability.”23 Shin Doh Chul makes the same argument that South Korea’s democracy has not yet been consolidated, pointing out that the Korean public, due to the influence of the authoritarian indoctrination, has been extremely “hostile” to those who challenged the cultural foundation of the dictatorship and political leaders in the right and the centre have used this to their advantage against those in the left, and that ultimately, this “confined democratic reforms … within the bounds of procedural minima.”24 In this context, using consolidation to examine the role of the NSL in South Korea’s democracy is unproductive; it falls in the teleology trap in which specific characteristics of older polyarchies are conflated with consolidation. Also, the problems with South Korea’s democracy points to problems within it, rather than external threats of democratic breakdown that consolidation paradigm addresses. Thus, in the context of this paper, the concept of consolidation is inadequate in addressing the problématique at hand.  In this context, delegative democracy provides a more useful and productive conceptual yardstick to examine the role of the NSL in South Korea’s democracy. O’Donnell, chiefly drawing from his observation of Latin American cases, defines                                                  22 Chaibong Hahm, "South Korea's Miraculous Democracy," Journal of Democracy 19, no. 3 (July 2008): 133. 23 Heo and Hahm, “Political Culture in South Korea,” 924. 24 Doh C. Shin, Mass Politics and Culture in Democratizing Korea (Cambridge: Cambridge University Press, 1999), 20.    11 delegative democracy as a newly transitioned democracy in which Dahl’s criteria of polyarchy are met and does not face an “imminent threat of an authoritarian regression,” but is “not moving towards representative democracy either,” in the sense that the executive branch act as a “delegate” rather than a “representative”; these are characterized by weak horizontal accountability. 25  O’Donnell identifies “long-term historical factors” and more importantly, a sense of “socioeconomic crisis” inherited from authoritarian predecessors, as key factors that lead to delegative practices by the executive branch—that is, acting as the Hobbesian Leviathan in disregard of horizontal accountability to solve that crisis in a swift manner.26  Delegative democracy could be aptly applied to explain the state of democracy in South Korea even though the concept is primarily drawn from Latin American cases. South Korea, following transition from authoritarianism, has displayed delegative tendencies in that presidents have shown personalized and concentrated exercise of power, in disregard of horizontal accountability. For instance, O’Donnell cited South Korea as one of the states displaying these tendencies. 27 Seong Kyoung-Ryung also observes that: “Although the South Korean context is different from the Latin American one, the above characteristics apply very well. The South Korean president monopolizes all important decisionmaking and is not constrained strictly by the parliament … South Korean presidents have shown a strong tendency toward delegative democracy.”28 A potential critique of the application of delegative democracy to understand the role of the                                                  25 O’Donnell, “Delegative Democracy?” 1-2. 26 Ibid., 7. 27 O’Donnell, “Delegative Democracy?” 1. 28 Kyoung-Ryung Seong, "Civil Society and Democratic Consolidation in South Korea: Great Achievements and Remaining Problems," in Consolidating Democracy in South Korea, ed. Larry Diamond and Byung-Kook Kim, 87-110 (Boulder: Lynne Rienner Publishers, Inc., 2000), 99-100.    12 NSL could be drawn from the fact that O’Donnell specifies “socioeconomic crisis” as the factor that furthers delegative behaviours, and the crisis that the NSL poses is not necessarily a socioeconomic one. However, in the Korean context, it is difficult to distinguish between socioeconomic crisis and security crisis, as the relationship with North Korea has played a fundamental role in shaping South Korea’s politics. For instance, the need for rapid economic growth has been articulated as a security measure against Pyongyang. Thus, this distinction is more so a difference in context, as Seong points out, and the symptoms of the crisis, the delegative features of governance, are similar to those in Latin America.   In this, I find two analytical benefits of using delegative democracy to clarify the relationship between the NSL and South Korea’s democracy. First, delegative democracy provides an appropriate and more importantly, concrete, conceptual framework to study the role of the NSL in South Korea’s democracy. More specifically, the model of delegative democracy framework facilitates the identification of particular problems that the NSL causes to South Korea’s democracy while avoiding teleological judgments. More specifically, delegative democracy points to the partial regimes of civil rights and, more importantly, division of power/horizontal accountability as areas to focus in explaining how the NSL is problematic for democracy; this avoids the conflation of differences from western polyarchies with legitimate problems for democratization and facilitates a more precise critique of the NSL in its relationship to South Korea’s democracy. The second analytical benefit of using delegative democracy as a conceptual yardstick is that it is a model effectively captures and explains the historical and political    13 aspects of the NSL, and translates these into generalized symptoms of weakness in civil rights and horizontal accountability, stemming from the sense of crisis following the transition from authoritarianism to democracy. In doing so, instead of regarding the NSL as a law for “exceptions” and thereby relying on the security-democracy narrative, it identifies the sense of crisis as a permanent feature that has shaped and influenced South Korea’s democracy beyond occasional limits to civil rights. Sharon Weinblum, in her work on the relationship between security and democracy in Israel, argues that this “security-democracy nexus,” articulated by the likes of Locke, Rousseau, Lasswell, and Dahl, is often taken for granted, without contestation.29 Further, starting from the fact that what is considered exceptional has been a permanent, normal situation in Israel, as in South Korea, Weinblum argues that the categories and terms such as “normal,” “exceptional,” “democracy,” and “security” are not static, but fluid and changing, therefore necessitating a critical examination.30 Similarly, the NSL has been viewed primarily through the lens of “security-democracy nexus,” eschewing political contestation, whether the crisis is real or fictional. This idea that the NSL addresses the state of exception in South Korea therefore renders the argument, that it undermines democracy because it undermines civil rights, ineffective in light of the security threats.   In this context, delegative democracy provides a conceptual framework that effectively captures these historical and political dimensions of the NSL, eschews the overly simplistic “security-democracy nexus” or the  “state of exception” calculus, and instead considers it as a transformative part of the system that has furthered delegative features in South Korea’s democracy. O’Donnell emphasizes the importance of historical                                                  29 Weinblum, “Security and Defensive Democracy in Israel,” 1. 30 Ibid., 20.    14 factors and the sense of crisis as key characteristics of delegative democracy: “… But, contrary to what I expected to find, my ongoing work suggests that the more decisive factors for generating various kinds of democracy are not those related to the characteristics of the process of transition from authoritarian rule. On one hand, longer-term historical factors and, on the other, the degree of severity of the socioeconomic crisis newly installed democratic governments may inherit, seem more important.”31 Considering the NSL as the legacy from the authoritarian regimes with its own history that has perpetuated a sense of crisis, rather than as a static security bulwark, allows a more comprehensive understanding of its role vis-à-vis South Korea’s democracy. More specifically, the examination of the ways in which the idea of crisis has been perpetuated through the NSL to further delegative forms of governance, and its social and political ramifications as part of the authoritarian legacy adequately sets up for a more effective critique of the law. As such, delegative democracy presents the theory in which the relationship between the NSL and democracy could be more clearly explained, translating the particularities of the case as generalized symptoms of weak civil rights and horizontal accountability, found in models of delegative democracy elsewhere.                                                  31 O’Donnell, “Delegative Democracy?” 1.    15 3. The National Security Law within Delegative Democracy In this section, I analyze the development and evolution of the NSL and its uses since 1948, demonstrating how it has created and perpetuated the sense of crisis that ultimately justify delegative practices in South Korea’s democracy today. More specifically, it demonstrates how this sense of crisis has been used to conflate dissenting ideologies as threats to national security, from the authoritarian period to this day through the NSL; and how, ultimately, the law facilitates delegative practices today based on this crisis rhetoric, mutually complementing weaknesses in the partial regimes of civil rights and horizontal accountability. Therefore, I demonstrate that the NSL and its uses today are explained better when they are seen as a part of delegative, rather than representative, democracy.  3.1 The National Security Law Prior to Democratization The sense of crisis has been underlying the NSL since its inception. The NSL was created in 1948, shortly after the formation of the First Republic of South Korea. This was a turbulent time period in the Korean peninsula, which had been split into two parts between the Soviet Union and the United States following the end of the World War II. Each North and South Korean government was attempting to assert its legitimacy as the Korean nation-state, and Rhee Syngman’s First Republic faced security threats not only from its northern counterpart, but also the communist sympathizers within the country,    16 such as the People’s Committee in the southern region.32 Rhee and his government were tasked with the responsibility of consolidating the newly created nation-state in what Giorgio Agamben would refer to as a “state of exception,” in which the distinction between democracy and absolutism disappear.33 Thus, they resorted to the NSL as an emergency measure, modeling it after the Japanese policing law from the colonial era. The NSL was created on December of 1948 to “punish various acts that jeopardize national security through illegitimate claim to the government or formation of organizations with the purpose of subverting the country, in violation of the state constitution.”34 Lee Yin, the Justice Minister at the time said, “[The NSL] is a rifle and ammunition … not a law for peacetime.”35 As such, the NSL was created to address the statist aspiration for unity and stability from the beginning, with its roots in the colonial government’s policing law and legitimized during a time of emergency. It was meant to serve as a bulwark against threats of ideological subversions during a time in which South Korea’s ideology had not fully gained legitimacy among the people.  However, the NSL remained in place, as the “state of emergency” became a perpetual reality, especially following the Korean War (1950-1953); the dictatorial regimes used it to suppress the democratization movement, which operated within the democratic nationalist discourse. After the Korean War, dictatorial regimes under Park Chung-hee and Chun Doo-hwan took over until 1987. In this “parabellum” view on national security regarded North Korea as the “principal enemy (jujeok),” the South                                                  32 Bruce Cumings, Korea's Place in the Sun: A Modern History (New York: W. W. Norton & Company, 1997), 202-224. 33 See Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005). 34 National Security Law (Law No. 10, 1948), Reason for Enactment Art.1 (R.O.Korea). 35 Namhee Lee, The Making of Minjung: Democracy and the Politics of Representation in South Korea (Ithaca: Cornell University Press, 2007), 83.    17 Korean government perpetuated the discourse of security-democracy nexus to justify their authoritarian governance, which Victor Cha refers to as the “’purchase’ of political legitimacy through the provision of security goods.”36  In this, the NSL provided a way for the authoritarian government to suppress the opposition and solidify their grip on power by conflating dissent with pro-North Korean, and hence “anti-state activities” that threatened national security, using the sense of crisis. During the 1960s, there was a surge of “progressive forces (hyoksingye),” consisting of individuals from different social backgrounds, as well as university students and democratization activists who attempted to address their contemporary social problems under the authoritarian government.37 In order to suppress these critics, the authoritarian government created an ideological dichotomy between the state and dissidents that conflated “disparate dissenting elements as a unified force against the state and as pro-communist,” and pursued them in a ruthless manner, involving illegal arrests and torture.38  In this process, the NSL provided the legal façade for the authoritarian government in perpetuating this ideological dichotomy, justification of violent suppression of the protests. The government would accuse students of “praising” or “sympathizing” (NSL Article 7) with “anti-state organizations” for possession of “unsound” or critiquing the government; between 1980 and 1987, during the peak of democratization movement in South Korea, 2,232 were charged for violation of the NSL (2,072 for violation of Article 7, specifically), which points to its utility as a tool of                                                  36 Victor Cha, "Security and Democracy in South Korean Development," in Korea's Democratization, ed. Samuel S. Kim, 201-219 (Cambridge: Cambridge University Press, 2003), 206. 37 Lee, The Making of Minjung, 32-33; 106-107. 38 Park, S.,“A Study of the Abuses and Interpretations of Article 7 of the National Security Law," 1.    18 repression by autocrats.39 As such, national security was conflated with the idea of protecting the legitimacy of the regime, and hence all critiques of the government with communism, ultimately politicizing the NSL as an ideological tool for autocrats, and unfortunate ideological cleavage that has remained even after the conclusion of the Cold War. Shin Doh-chul notes that “by equating democracy with anti-communism, ruling elites of both civilian and military dictatorships removed leftist and other ideologically progressive elements from the Korean political process.”40 Further, this quick historical shows that the same sense of crisis that prompted the creation of the law in 1948 underlay the practice of abusing the NSL to silence dissenters through the authoritarian period. 3.2 The National Security Law in Democratized South Korea: Crisis and Horizontal Accountability The NSL changed significantly when South Korea transitioned from military dictatorship to electoral democracy in 1987; its power and reach were curtailed through judicial and legislative measures. However, these changes did not entirely eliminate the threats of abuse; and in fact, the sense of crisis has been perpetuated through the NSL, facilitating delegative practices by the executive, mutually complementing the weakness in horizontal accountability in South Korea’s democratic regime. The changes following accommodated the NSL within the newly established democracy that still faced a permanent crisis. The attempts for abolition, if not revision, in 1990 and 2004 were met with strong conservative opposition, did not gain enough                                                  39 Chae-Hong Lim, "The National Security Law and Anticommunism Ideology in Korean Society," Korea Journal, Autumn 2006: 91-92. 40 Shin, Mass Politics and Culture in Democratizing Korea, 40.    19 public support, and were ultimately both unsuccessful.41 The powers of the law were greatly curtailed through the actions of both the Constitutional Court and the National Assembly. At the request for judicial review in 1990 on the Article 7 of the NSL, the Constitutional Court granted the “limited constitutionality” status, in the sense that it would be deemed constitutional if “applied minimally only when there is a clear danger that could harm the fundamental liberal democratic order.”42 Further, the National Assembly made an amendment in 1991, adding the stimulation that in “interpretation and application of the National Security Law, the basic human rights of the people must be guaranteed as much as possible.”43 The Constitutional Court also ruled the section on the extension of detention period unconstitutional for compromising basic human rights.44  However, these changes merely accommodated the NSL within the newly established democracy without critically addressing the threats that it fundamentally poses to democracy. Instead, the law and the continued sense of crisis have mutually complemented each other in the survival and adaption of the NSL to a new democratized political environment. Lee Seong Taek argues that the “limited constitutionality” ruling effectively legitimized the place of the NSL in a democratized society, in the sense that it was justified within the new “constitutional order” that came along with the democratization of 1987, which replaced the previous “extra-constitutional dominant                                                  41 Park, S., "A Study of the Abuses and Interpretations of Article 7 of the National Security Law," 4. 42 Hyonbeopjaepanso [Constitutional Court of Korea], April 2 1990, 89 ga 113, Gukgaboanbeop je7oe gwanhan wiheonsimpan [On the unconstitutionality of Article 7 of the National Security Law] 23 Hyonbeopjaepanso pagyeoljip [Constitutional Court Case Reporter] 49 (1990, No. 2). 43 National Security Law (Law No. 4373, 1991), Reason for Amendment, Preamble (R.O.Korea). 44 Hyonbeopjaepanso [Constitutional Court of Korea], April 14 1992, 90 ma 82, Gukgaboanbeop je19oe gwanhan hyeonbeopsowon [On the unconstitutionality of Article 19 of the National Security Law]  Hyonbeopjaepanso pagyeoljip [Constitutional Court Case Reporter] 194 (1992 No. 4).    20 ideology” within totalitarianism.45 While the power of the NSL was greatly curtailed, it kept its teeth in the sense that it retained its capacity to restrict and criminalize free exercise of speech, conscience, and action, in accordance to the security-democracy nexus. Thus, the ruling by the Constitutional Court effectively legitimized the conflation of dissident ideologies with threats to national security, now within a democratized society, thereby gaining a more convincing justification of protecting the “fundamental liberal democratic order,” instead of the interests of the autocrats, in South Korea. In other words, the same sense of crisis, which views dissent as a threat and therefore justifies swift quashing, remained, the torch changing hands from an authoritarian Leviathan to a democratically elected one.  Today, the NSL continues to perpetuate the sense of crisis in framing the ideological differences as an existential threat to facilitate delegative practices. While South Korea has come a long way in the widening of the political spectrum and continues to improve in this regard, the experiences of the authoritarian era has created a political landscape that remains significantly hostile towards leftist ideologies. Shin notes that “by equating democracy with anti-communism, ruling elites of both civilian and military dictatorships removed leftist and other ideologically progressive elements from the Korean political process,” and that the Korean masses have been “so indoctrinated with the right-wing ideologies of authoritarian rule and state capitalism that they remained steadfastly hostile to all politicians and intellectuals who challenged the cultural                                                  45 Seong-taek Lee, "Minjuhwaihuui gukkkaboanbeop: Jedohwawa damnonhwaui jeonchejuuigyeonghyangseongeul jungsimeuro [The National Security Act after Democratization in South Korea: Institutionalization and Discursification and their Tendency toward Totalitarianism]," Sahoewa Iron [Society and Theory] 8, no. 1 (2006): 172-174.    21 foundation of the dictatorship.”46 Further, the main source of ideological cleavage originates not from class and socio-economic differences, but from differences of opinions on the North-South relations; traditionally, the left has advocated for a Dovish approach to North Korea, while conservatives have been Hawkish.47 Hence, the left have been marginalized in South Korean politics, often getting accused of being lax on national security issues and even co-opting with Pyongyang, becoming vulnerable to the accusations of being jongbuk, that is, “followers of the North.”48 Chun-kwon Koo notes that the NSL has “effectively limited the political mobilization of socially and economically marginalized class or group to by blocking the propagation of any other ideology that competes against conservatism from expanding to the rest of the society.”49  This sense of perpetual crisis through the NSL has therefore perpetuated a notion that ideological differences should be interpreted as a security threat and therefore quashed, mirroring authoritarian practices prior to 1987. As such, the NSL has facilitated delegative practices in South Korea’s democracy by creating the same sense of crisis that authoritarian regimes had invoked, justifying the violation of civil rights and horizontal accountability. The use of the NSL by the South Korean executive branch corresponds the Hobbesian Leviathan role of the government that O’Donnell identifies as a feature of delegative democracy.50 More specifically, the                                                  46 Shin, D., Mass Politics and Culture in Democratizing Korea, 20. 47 Kyung-ae Park and Heng Lee, "A Turning Point: Democratic Consolidation in the ROK and Strategic Readjustment in the U.S.-ROK Alliance," in Democratic Consolidation and Comparative Political Perspective on the 2002 Presidential Election in the ROK, ed. Alexandre Y. Mansourov, 47-62 (Honolulu: Asia-Pacific Center for Security Studies, 2005), 58. 48 Kyung-sik Lee, "Who are socalled Jongbuk Jwabbal?," The Korea Post, August 29, 2014, http://koreapost.com/m/content/view.html?section=158&category=167&no=623 (accessed July 8, 2016). 49 Chun-kwon Koo, "Gukgaboanbeope daehan jeongchihakjeok seongchal [A Political Examination of the National Security Law]," Yeongnam Beobhak [Yeongnam Legal Studies] 27 (2008): 207. 50 O’Donnell, “Delegative Democracy?” 7.    22 vagueness of the “anti-state organization” that the NSL refers to has permitted South Korean presidents, even after democratization, to use it to suppress opposition. 51 President Kim Dae-jung used the NSL during the first year of his term against labor union members and opponents of neoliberal economic reforms that he implemented to tackle the IMF debt crisis.52 In 2008, Professor Oh Se-cheol was arrested for forming an organization called the Socialist Workers League of Korea, accused of violating the NSL as well.53 Further, as will be discussed in the case study below, the NSL facilitated the disbanding of the UPP, a popularly elected party. Thus, the NSL has facilitated delegative practices by the government through that sense of crisis to marginalize dissenting thoughts and individuals.  These behaviors by political actors are facilitated and complemented by the weakness in the partial regime of horizontal accountability, which is another key feature of delegative democracy. South Korean presidents enjoy immense power with little hindrance due to the lack of effective institutional check on the executive branch, earning the title “imperial presidency” by the observers. 54 The National Assembly does not hold much power over the executive; even the prime minister is first appointed by the president, and then approved by the legislative branch. Thus, current debates about                                                  51 Park, S., “A Study of the Abuses and Interpretations of Article 7 of the National Security Law," 2. 52 Ho-cheol Sohn, "Minjujueiwa sinjayujuei saieseo [Between Democracy and Neoliberalism]," Gieokgwa Jeonmang [Memory and Future Vision] 22 (Summer 2010): 22. 53 "Wen 'ijeok danche'? ... yonseidae ohsecheol gyosu deung gingeup chepo [What 'anti-state organization? ... Yonsei University Professor Oh Se-cheol and others arrested]," Pressian, August 26, 2008, http://www.pressian.com/news/article.html?no=90596 (accessed November 22, 2015). 54 See Hoon Jaung, "The Two Tales of the Korean Presidency: Imperial but Imperiled Presidency," in The Rule of Law in South Korea, ed. Jongryn R. Mo and David W. Brady, 61-82 (Stanford: Hoover Institution Press, 2009); and Jeong-ho Roh, "Crafting and Consolidating Constitutional Democracy in Korea," in Korea's Democratization, ed. Samuel S. Kim, 181-200 (Cambridge: Cambridge University Press, 2003); and Aidan Foster-Carter, "South Korean Presidents: So Much Power, So Little Time," The Wall Street Journal, October 29, 2014, http://blogs.wsj.com/korearealtime/2014/10/29/south-korean-presidents-so-much-power-so-little-time/ (accessed July 8, 2016).    23 constitutional reform in South Korea seek to address this concentration of power in the executive by distributing it to the legislative branch.55  Scholars who have identified South Korea as a delegative democracy have emphasized this trait of the executive branch.56  The lack of horizontal accountability in relation to the key bureaucracy, the National Intelligence Service (NIS), which is in charge of security intelligence, further provides a condition in which the NSL could be abused by the president. The NIS reports directly to the president with no strong legislative oversight, which further facilitates the abuse of the NSL by the executive branch. Kim Jung Do notes, “if the President intentionally wishes to use the NIS for his personal purposes, then it is difficult for the agency to deny his request.” 57  Furthermore, the legislative branch, the National Assembly, has proven to be ineffective in overseeing the NIS.58 The NIS has been caught several times while engaging in illegal political activities on behalf of the president, raising concerns about its abuse by the executive branch. For instance, NIS agents and its director, Won Sei-hoon were arrested, accused of political meddling, during the presidential election of 2012; they were posting comments that criticized the opposition in order to favor Park Geun Hye, the candidate from Saenuri Party, then-President Lee                                                  55 Foster-Carter, “South Korean Presidents.” 56 See K. Seong, "Civil Society and Democratic Consolidation in South Korea,” 99-100. 57 Jung Do Kim, "Guggajeongbowon tongjeleul dulleossan gughoe-haengjeongbu gwangye [Parliament-Executive Relations in Oversight of the National Intelligence Services]," Daehanjeongchihaghoebo [Korean Journal of Political Science] 16, no. 3 (2009): 21. 58 See Youseop Shin, "Legislative Oversight of Intelligence Agencies in Democratic Countries: The Case of South Korea and the USA," Pacific Focus 27, no. 1 (April 2012): 135-154.    24 Myung Bak’s party, which confirms the capacity of presidents to use an executive agency, such as the NIS, for their personal motives.59 The weakness of horizontal accountability in relation to the judiciary branch, another key institution in relating the use of NSL, also contributes to the condition in which the executive could abuse the law in a delegative manner. As the NSL treads a blurry line between upholding and violating of constitutional rights, the judiciary, especially the Constitutional Court, has been playing an important role in its adjudication in South Korean politics, as shown in its “limited constitutionality” ruling that requires that the law must be “applied minimally only when there is a clear danger that could harm the fundamental liberal democratic order.”60 Thus, courts hold the power to determine whether violations of the NSL constitute that “clear danger.” However, there is a concern that horizontal accountability, more specifically judicial independence in this case, is lacking. Out of the nine justices serving in the Constitutional Court, the president nominates three, the National Assembly three, and the Chief Justice of the Supreme Court, who is also selected by the president, three, which casts doubt on the independence of the Judiciary in South Korea.61 David Steinberg even goes as far as to state that “the judiciary is still strongly influenced on important issues by the recommendations of the executive” and that it has “demonstrated the least autonomy                                                  59 Sang-hun Choe, "South Korean Intelligence Officers Are Accused of Political Meddling," International New York Times, April 18, 2013, http://www.nytimes.com/2013/04/19/world/asia/south-korean-intelligence-officers-are-accused-of-political-meddling.html (accessed July 8, 2016). 60 Hyonbeopjaepanso [Constitutional Court of Korea], April 2 1990, 89 ga 113, Gukgaboanbeop je7oe gwanhan wiheonsimpan [On the unconstitutionality of Article 7 of the National Security Law] 23 Hyonbeopjaepanso pagyeoljip [Constitutional Court Case Reporter] 49 (1990, No. 2). 61 Roh, J., “Crafting and Consolidating Constitutional Democracy in Korea,” 198; and also see Neil Chisholm, "The Faces of Judicial Independence: Democratic versus Bureaucratic Accountability in Judicial Selection, Training, and Promotion in South Korea and Taiwan," American Journal of Comparative Law 62, no. 4 (December 2014): 893-958 for more information on the presidential influence upon judicial selection.    25 from the control of a strong executive.”62 Thus, the vagueness of the law and weakness in horizontal accountability provide a condition in which the NSL could be used in a delegative manner. There was an expectation that the National Security Law would be used less frequently and thereby lose its relevance after the granting of “limited constitutionality” status in 1990.63 It seemed as if this expectation was coming true as the number of reported violations decreased through the terms of two progressive presidents, Kim Dae Jung and Roh Moo Hyun (1998-2008). The number of both total cases and arrests decreased significantly from 920 and 465 in 1998, the first year of Kim’s term, to 56 and 16 in 2008, the last year of Roh’s term. 64  These two presidents, who had been democratization activists prior to 1987, had expressed their disdain towards the NSL, and made conscious efforts to use them less frequently, which reflected in the overall decrease of the number of cases throughout their terms.65 However, the number of cases started to increase with the inauguration of conservatives Lee Myung Bak’s term in 2008, going up from 56 total cases and 16 arrests to 165 and 38 in his last year, 2013.66 While it is too early to determine the overall trend under Park Geun Hye’s government, the total number of cases has remained high at 108 total cases in 2014, and the NSL definitely has resurfaced to the fore with more frequent uses by last two conservative presidents. This                                                  62 David I. Steinberg, "Continuing Democratic Reform: The Unfinished Symphony," in Consolidating Democracy in South Korea, ed. Larry Diamond and Byung-Kook Kim, 203-238 (Boulder: Lynne Rienner Publishers, 2000), 218-220. 63 Park, S., “A Study of the Abuses and Interpretations of Article 7 of the National Security Law," 3-4. 64 Tonggyecheong [Statistics Korea], "Beomjoeyuhyeongbyeol gongansageon cheorihyeonhwang gukkaboanbeop wibansabeom [Current processing of public safety cases of violation of the National Security Law per infraction types]," Tonggyecheong [Statistics Korea], http://www.index.go.kr/potal/stts/idxMain/selectPoSttsIdxSearch.do?idx_cd=1745&clas_div=&idx_sys_cd=834&idx_clas_cd=1 (accessed July 8, 2016). 65 Park, S., “A Study of the Abuses and Interpretations of Article 7 of the National Security Law," 4. 66 Statistics Korea, “Current processing of public safety cases.”    26 trend demonstrates that the use of the NSL is dependent on the decisions of the executive, and that its abuse is a problem that relies on the goodwill of the serving president, rather than institutional efficacy, for the solution, which overall shows how it fits the delegative model.  In this section, I have demonstrated how the sense of crisis has been perpetuated through the NSL even after South Korea’s transition to democracy. Further, I have shown how this sense of crisis has contributed to its delegative uses, mutually complementing pre-existing weaknesses in horizontal accountability. In the following section, I use the case study of the dissolution of a popularly elected party to show how the delegative features of the NSL come into play.      27 4. Case Study: The National Security Law and the Disbanding of the Unified Progressive Party (UPP) In this section, I examine the disbanding of the Unified Progressive Party (UPP), a popularly elected political party, through the application of the NSL. In doing so, I demonstrate how the sense of crisis that frames leftist ideologies as a threat to national security continues to be perpetuated through the NSL, and how the executive used the law and the weakness of horizontal accountability to persecute a dissenting party. As such, it is demonstrated that the NSL was used as a tool for delegative governance that come into conflict with the model of representative democracy that South Korea purports to be. While the case study discusses an unprecedented event, its proceedings reflect more widespread and general problems presented above, which makes it a useful example that helps understand how the NSL fits in the delegative model.   Lee Seok-Ki was serving as the member of the National Assembly, along with five other members of the UPP, when he was arrested after having been accused of having organized a “Revolutionary Organization (R.O.)” and planned a “sabotage” of the South Korean government by working with North Korea, after an “unusual” raid by the National Intelligence Service (NIS) in late August 2013.67 According to the audiotape provided by the NIS, Lee discussed sabotaging “communications, oil, rail and other crucial facilities” during a retreat with his 130 followers, and sang North Korean                                                  67 Sang-hun Choe, "Leftist Leaders Accused of Trying to Overthrow South Korean Government," International New York Times, August 28, 2013, http://www.nytimes.com/2013/08/29/world/asia/leftist-leaders-accused-of-trying-to-overthrow-south-korean-government.html (accessed July 8, 2016).    28 “revolutionary songs.”68 Lee was indicted with charges of treason and violation of the NSL, specifically Article 7 on “Praising or Sympathizing” anti-state organizations, and sentenced to 12 years in prison.69 Lee appealed to the Supreme Court, which upheld the decision on January 2015, confirming that he is guilty of inciting an insurrection and violation of the NSL, but also struck down charges of planning an insurrection, failing to confirm the existence of the R.O., and ultimately reduced the sentence to 7 years.70 In this process, the NIS and the prosecution were both unable to provide concrete evidence or imminent physical dangers that Lee and his followers posed to the society.71   The arrest of Lee was followed by the request from Justice Minister Hwang Gyo-ahn (who now serves as the Prime Minister) to the Constitutional Court to officially disband the UPP on the basis that “the platform of the United Progressive Party pursues a North Korean-style socialism” and that therefore violates the principle of “basic constitutional order” as per the constitution, which would meet the requirement for legal dissolution of the party.72  Then, the Court announced an 8-1 ruling that “the activities of the UPP have violated the basic democratic order as per the constitution,” and “there is no other alternative but to disband the party in order to eliminate the concrete danger                                                  68 Sang-hun Choe, "South Korean Lawmakers Back Arrest of Colleague in Treason Case," International New York Times, September 4, 2013, http://www.nytimes.com/2013/09/05/world/asia/south-korean-lawmakers-back-arrest-of-colleague-for-treason.html (accessed July 8, 2016). 69 In-jin Choi, "Beobwon, 'Lee Seok-ki naeraneummo' injeong jingyeok 12nyun seongo [Court rules that Lee Seok-ki plotted a sabotage, sentenced to 12 years in jail]," The Kyunghyang Shinmun, February 17, 2014, http://news.khan.co.kr/kh_news/khan_art_view.html?code=940301&artid=201402172152395 (accessed July 8, 2016).). 70 Hang-seop Shin, "Lee Seok-Ki, 'Naeraneummo mujoe,' 'naeran seongdong, gukka boanbeop yujoe' jingyeok 9nyun [Lee Seok-ki, 'not guilty on charges of conspiring an issurection' 'guilty on charges of inciting an insurrection and violation of the National Security Law,' sentenced to 9 years in prison," Asia News Agency, January 22, 2015, http://www.anewsa.com/detail.php?number=770028&thread=11r02 (accessed July 8, 2016). 71 Shin, “Lee Seok-ki, ‘not guilty on charges of conspiring an insurrection.’” 72 Sang-hun Choe, "South Korean Government Seeks Ban on Small Leftist Party," International New York Times, November 5, 2013, http://www.nytimes.com/2013/11/06/world/asia/south-korean-government-seeks-ban-of-small-leftist-party.html (accessed July 8, 2016).    29 posed by the UPP that renders de facto harms.”73 The Court took into consideration the fact that Lee and his followers were key members of the UPP, and that the “doctrine” of the party, which calls for “rectifying [Korea’s] shameful history, tainted by imperialist invasions, the national divide, military dictatorship, the tyranny and plunder of transnational monopoly capital” as their rationale for their decision.74 This was an unprecedented ruling and did not sentence specific individuals, so the NSL was referred to directly, but the logic was consistent with the application of the Article 7, which prohibits “sympathizing” with an “anti-state organization or their members.”75 In other words, the ruling of the Constitutional Court effectively categorized the UPP as having an association with North Korea and penalized their members for it, conflating a democratic socialist platform with the juche ideology. Thus, for the first time since 1961, the government dissolved a political party with elected members of the National Assembly.  In this process, the NSL served as a key instrument for the government prosecution. Lee was sentenced for both inciting an insurrection and violation of the Article 7 of the NSL. And while the NSL was not directly applied in the ruling, it provided the rationale that problematized the party doctrine that justified the disbanding of the party. In both cases, the NSL served as the linchpin that confirmed and reinforced the crime of Lee and the members of the UPP. Lee’s prosecution depended mainly on the comments that he made during the gathering, recorded in a tape, an informal setting in which some members were inebriated and had brought their kids; hence the sentencing                                                  73 Hyonbeopjaepanso [Constitutional Court], "Gyuljeongyoji - Tonghapjinbodang Haesan [Summary of Decisions - Disbanding of the Unified Progressive Party]," Hyonbeopjaepanso [Constitutional Court], December 19, 2014, http://www.ccourt.go.kr/cckhome/comn/event/eventSearchInfoView.do?searchType=1&viewType=3&changeEventNo=2013%ED%97%8C%EB%8B%A41 (accessed July 8, 2016). 74 Choe, S., "South Korean Government Seeks Ban on Small Leftist Party.” 75 National Security Law, Art.7 (R.O.Korea).    30 on insurrection charges left doubts and especially more so when the Supreme Court struck down the insurrection planning charges on Lee, not having found concrete evidence that the R.O. existed.76 However, the tape did provide a concrete evidence of the violation of the NSL (i.e. singing North Korean revolutionary songs), which would have added to suspicion in regards to Lee and his follower’s intent, despite the lack of any material evidence of the R.O. or their plan of an insurrection. Similarly, in the UPP disbanding ruling, the justices took into consideration that many members of the party had been arrested for violation of the NSL, as the sole dissenting justice, Kim Yi-soo noted.77 The Human Rights Committee of the United Nations also noted in their report that “the dissolution of the Unified Progressive Party (UPP) ordered by the Constitutional Court in 2014 for the alleged violation of the “basic democratic order”, was significantly based on the alleged propagation of DPRK ideology by members of the UPP, regarding which they have already faced charges under article 7 of the [NSL].”78 Again, the linking of the party doctrine as anti-state because of its alignment with that of North Korean ideology fits with the uses of the Article 7 of the NSL. Further, it demonstrates how the NSL justifies delegative practices by framing ideological differences as threats that create a “crisis.”   The prosecution of Lee and the disbanding of the UPP demonstrate how the NSL and the delegative traits of South Korean democracy complement each other. On the day the Constitutional Court announced the ruling to disband the UPP, the Gallup poll had announced that President Park Geun Hye hit the bottom with the low approval rating of                                                  76 Shin, H., “Lee Seok-ki, 'not guilty on charges of conspiring an insurrection'” 77 Constitutional Court of Korea, Disbanding of the Unified Progressive Party. 78 Centre for Civil and Political Rights, "Concluding observations on the fourth periodic report of the Republic of Korea,” 9.    31 37%, plagued with the controversy over the illegal involvement of the NIS in the presidential election of 2012, and the continued failure to have her nominee for the prime minister approved by the National Assembly.79 The UPP, albeit small, was the most virulent and vocal critic of Park, constantly bringing up her late father, Park Chung Hee, throughout the presidential campaign to paint the former as a politician who would revert South Korea back to authoritarianism.80 The arrest of Lee and the disbanding of the UPP shifted the public focus to them, and the public generally expressed support for the unfolding of these two incidents, as well as for Park, whose approval ratings climbed up following the ruling by the Constitutional Court.81  Further, the weakness in horizontal accountability emerged to the surface in the prosecution of Lee and the UPP. Many commented that the decision by the Constitutional Court, which would have considered more than 170,000 pages of evidence, was unprecedentedly quickly processed, adjudicated within a less than a month after the last hearing, while most cases take 2 years, and thus raised concerns about inappropriate political influence from the government. 82  Furthermore, prominent legal scholars expressed surprise at the lopsidedness of the ruling (8-1) in a case that they deemed extremely complex and polarizing, and raised concern about the apparent “political                                                  79 Gwan-yul Chun, "'Jongbuk' cadro yeokseup jeulggineun parkgeunhye daetongryong [President Park Geun-Hye Strikes back with the 'Jongbuk' card]," Sisa In, December 23, 2014, http://www.sisainlive.com/news/articleView.html?idxno=22091 (accessed July 8, 2016); and Kwanwoo Jun, "South Korean President's Latest Pick for Prime Minister Withdraws Amid Criticism," The Wall Street Journal, June 24, 2014, http://www.wsj.com/articles/south-korea-prime-minister-designate-withdraws-amid-criticism-1403575728 (accessed July 8, 2016). 80 Choe, S., "South Korean Government Seeks Ban on Small Leftist Party.” 81 Seungki Yoo, "S.Korean president's approval ratings up after pro-DPRK party's dismissal," Xinhua News Agency, December 22, 2014, http://news.xinhuanet.com/english/2014-12/22/c_133871226.htm (accessed July 8, 2016). 82 Eun-kyo Jang and Hye-ri Chung, "Seoduluh gyeoljeongdoeneun tonghapjinbodang unmyung [A hurried decision of the UPP's destiny]," The Kyunghyang Shinmun, December 17, 2014, http://news.khan.co.kr/kh_news/khan_art_view.html?artid=201412172237345&code=910402 (accessed July 8, 2016).    32 motive” in the adjudication of the case by the Constitutional Court. 83  Out of 69 constitutional scholars surveyed prior to the ruling, only 23 (33.3%) responded that they would rule to disband the UPP, while 32 (46.4%) responded that they would not and 14 (20.3%) that they “do not know.”84 This suggests political influence upon the judiciary. Similarly, the legislative branch, with Park’s Saenuri Party with a majority, provided no real check through this process. The National Assembly voted in favor of the bill that permitted Lee Seok-Ki’s arrest (258-14).85 The official opposition, the New Politics Alliance for Democracy (NPAD), which is seen as a progressive alternative to Saenuri, focused on distancing itself from the UPP and did not take any action to protest the ruling.86  Lastly, this case study demonstrates the strength of the crisis rhetoric that justified the delegative practices by the executive. As mentioned earlier, the approval rating of Park spiked following the prosecution of Lee and the UPP. According to a poll by Joongang-Ilbo, the majority (63.8%) of the public indicated that they either “very much agree” (45.4%) or “generally agree” (18.4%) with the ruling to disband the UPP.87 Further, the rulings on Lee and the UPP were followed by civil lawsuits from                                                  83 Tae-seop Byun, Jin-ha Yang and Jae-ho Jung, "Hyonbeobhakjadeul "haesan geungeo yakgahe... tongjindang siljikjeok wiheom nolbge haeseok" [Constitutional Scholars "Weak rationale for disbanding ... broad interpretation of UPP's actual danger]," Hankookilbo [Korea Times], December 19, 2014, http://www.hankookilbo.com/v/9099d18a302a4d7eb2f1689afaffaf11 (accessed July 8, 2016). 84 Geun-ho Cho, "Heonbeopakja 46% "tonghapjinbodang yuji", 33% "haesanhaeya" [46% of Constitutional Scholars "Keep the UPP" 33% "Disband it"]," CBS NoCut News, November 8, 2013, http://www.nocutnews.co.kr/news/1128163 (accessed July 19, 2016). 85 Choe, S. “South Korean Lawmakers Back Arrest of Colleague in Treason Case.” 86 See Hyo-won Jang, "Saejungchi "Gukminei seontaekeh matgyutseoya" [New Politics Alliance, "Should have let the people decide"]," Money Week, December 19, 2014, http://m.moneyweek.co.kr/view.html?no=2014121912558025020#ba (accessed July 8, 2016); and Choe, S., "South Korean Lawmakers Back Arrest of Colleague in Treason Case." 87 Kyung-hee Kim and Seung-wook Seo, "Tongjindang haesan, chanseong 64% bandae 24% [UPP Dissolution, 64% Agree 24% Disagree]," Joongang Daily, December 22, 2014, http://news.joins.com/article/16753067 (accessed July 8, 2016).    33 conservative organizations that accused the individual members of the UPP for violation of the NSL. Conservative civil organizations such as Hwalbindan, sued the members of UPP for violation of the NSL immediately after the decision was made by the Constitutional Court, arguing that the ruling confirmed the status of the UPP as an “anti-state organization according to the National Security Law and all party members are members of an anti-state organization,” and that therefore “they should all be punished for violation of the National Security Law”; investigations by the NIS followed immediately.88 Subsequent media attention on the UPP for its association with treason led to their investigation as well, effectively undermining their credibility as public figures. Therefore, this case study demonstrates how the authoritarian legacies continue to effectively perpetuate a systematic sense of crisis to justify delegative practices by the executive through the NSL. The theory of delegative democracy integrates the particularities of the case into the model of delegative democracy, in which they are translated into and explained as generalized symptoms of violations in civil rights and horizontal accountability. More importantly, the case study demonstrates how the application of the NSL in the disbanding of the UPP is better understood and explained if it is seen as a process within not a representative, but delegative democracy.                                                   88 Jun-ho Park and Nan-young Kim, "'Gukbobeop Wiban' Jeongwaja Mudeoggi Yangsandoena ['Violation of the National Security Law'] Will it lead to a mass arrest," Newsis, December 19, 2014, http://www.newsis.com/ar_detail/view.html?ar_id=NISX20141219_0013368755&cID=10201&pID=10200 (accessed July 8, 2016).    34 5. Conclusion The objective of this paper is not to obviate the need or relevance of the NSL; the balancing of democracy and security needs leads to a murky and rather arbitrary calculus that falls outside the scope of this paper. Instead, I have tried to show that the opportunity cost of using the law stretches beyond occasional violations of civil rights, posing much bigger challenges for South Korea’s democracy.  In order to do so, I have shown how the NSL fits within not the representative, but the delegative model of democracy, which is a defective subtype. O’Donnell identifies a sense of crisis as a factor that justifies delegative forms of governance, in which the partial regimes of horizontal accountability and civil rights are weak. I demonstrate throughout the paper that this sense of crisis that regards ideological differences as a threat to national security has been underlying the use of the NSL; and how this has marginalized leftist, dissenting ideologies. In this, I show how this crisis continues to justify the use of the NSL in South Korea, facilitating delegative practices that undermine horizontal accountability and civil rights and ultimately exclude leftist political groups. The case study of the disbanding of the UPP clearly demonstrates how the NSL contributed to a delegative behaviour that disbanded a popularly elected party. As such, I present the NSL as a law whose place and role is more understandable within a delegative, rather than a representative democracy. Thus, the model of delegative democracy fulfills two functions: first, it clearly specifies the partial regimes that are influenced by the NSL (civil rights and horizontal accountability); this facilitates a precise assessment of how the law has affected South    35 Korea’s democracy. In short, it is a model that could be compared to another model to assess a democracy. Secondly, it provides a tool through which the particularities of the case are adequately explained and translated into a more systematic and generalized model in which a sense of crisis justifies behaviours that violate civil rights and horizontal accountability. In this, it is clearly shown that the NSL is not merely a security bulwark, but a political tool that has contributed to delegative features within South Korea.  As Sharon Weinblum does in her work on Israel’s democracy and security, I have attempted to show the fluidity and complexity of the relationship between the two to critically engage with the subject at hand beyond what is considered to be an obvious compromise. Especially within the South Korean context, the threat from North Korea has been, and will likely be a permanent feature, which makes it not only problematic, but also wrong to regard the problems stemming from the NSL as exceptions. 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