Foreigners' political activities and limits

By Nam Wonchul

As readers of this paper learned last month, Article 17 of Korea’s Immigration Control Act (Sojourn and Departure of Foreigners) specifically forbids non-citizens of the Republic of Korea from engaging in “political activities.” It also empowers the Ministry of Justice (and under it the Korea Immigration Service) to take any necessary measures to stop a foreigner engaging in such activities. Leaving aside the ambiguity of the term “political activities” which might someday be challenged in the Constitutional Court, many legal experts, including personnel at the Immigration Service, express the opinion that taking active part in demonstrations or protests is illegal. Taking “active” part includes carrying a banner or placard, chanting slogans, wearing clothing or other items carrying political messages, scuffling with police and possibly even holding a candle, but simply being present at a protest would not ordinarily be enough to cause legal difficulties. Under the same law, a foreigner deemed to be engaging in political activities could have their visa canceled, or an upcoming visa renewal could be refused.

However, Article 17 also mentions possible exceptions to the ban on political activities by stating “unless otherwise permitted by this Act or other Acts.” According to the Ministry of Justice, it seems the only exception here is the Residents Voting Act granting the right to vote in local elections (up to the city or provincial level) to foreigners who have obtained permanent residence. Furthermore, the Supreme Court of Korea has found that foreign workers can form their own labor union to further the improvement of working conditions, regardless of whether workers have valid visas or not. As long as the labor union doesn’t engage in activities that are regarded as mainly political, it should have no problems. Therefore, collective bargaining or even industrial action (provided the proper procedures are followed) by a foreign workers’ trade union would be legally permissible, according to this ruling. Another exception might be writing comments online. According to a recent decision, as there is less chance that online activities threaten the security of the Republic of Korea than activities carried out on the streets, the courts would likely be more forgiving of foreigners expressing political opinions on a blog, social media platform, or online media outlet.

How is Article 17 enforced? It’s interesting to note that in the last few years there have been no immediate examples of foreigners arrested or punished under this article. In response to an official Disclosure of Information request, the Immigration Service revealed it had no record of any foreigner being punished for breaching Article 17. Unofficially, a source told me that the Korean government is reluctant to be seen to be persecuting foreigners for political reasons. In 2009 there was the case of a Nepalese laborer who was deported from Korea after participating in rallies against the government on issues such as Korean troop deployment to Iraq, the passing of the KORUS FTA and imports of American beef. In this case, although the court mentioned the political nature of the activity in its judgment, the actual infraction cited was that the laborer was living and working in Korea without the proper visa.

It seems ironic that the Korean government has on occasion tacitly supported political activities of Korean citizens while overseas, when they aligned with government policy. For instance, Korea.net, the official promotional website run by the Ministry for Culture, Sports and Tourism, has reported favorably on citizens who have gone overseas to demonstrate on behalf of the Korean government’s claims of the Dokdo islets in the East Sea, as well as a former comfort woman visiting a statue in the United States representing all sex slaves of Japan. Similarly, when foreigners in Korea are encouraged to write articles in support of Korea on the same issues, are these not also political activities?

So far, Article 17 has never been challenged in court. If a foreign citizen were to be punished for engaging in political activities, he or she could ask for an official opinion of the National Human Rights Commission of Korea (NHRCK). Although a finding by the NHRCK does not have legal binding force, it could influence the government to change the law, or overturn a court ruling. A case pending before the court would not be eligible for consideration by the NHRCK, so it must first be processed by the judiciary before making such a request. Some Korean human rights and public interest lawyers feel that Article 17 restricts the basic human right to freedom of expression, and can be applied politically to persecute any foreigner fighting for their own rights. There is some sense to this, because given that the personal is political, cannot almost any public activity be defined as “political” if the government of the day takes offence to it?

Nam Wonchul is an associate attorney-at-law with Hwang Mok Park Law. He can be reached at namwc@hmplaw.com