COVID-19 and Korea Viral xenophobia through a legal lens

Although South Korea’s response to COVID-19 has been praised as efficient, effective, and well-planned, the legislation devised to tackle the pandemic suffered from a lack of human rights safeguards and was rather opportunistically employed by the government to target an unpopular religious community. In such situations, it falls to the courts to provide protection to those who may have suffered as a result of state excesses. The trial of Chairman Lee Man-hee of the Shincheonji Church of Jesus places these issues in sharp relief. Chairman Lee’s prosecution is instructive regarding applications of the rule of law in situations of national emergency, freedom of religion, and the inadequacy of traditional legal remedies for certain human rights violations

The SCJ was at the centre of South Korea's first major COVID-19 outbreak in February 2020, making it the target of considerable public anger at the time.
However, as shall be demonstrated, much of this anger was unwarranted. More- over, it was exacerbated by Korean government efforts to harness the opprobrium directed at the SCJ for its own political ends, causing serious damage to the religion and its adherents.
The prosecution of Chairman Lee and the SCJ's status in the context of Korean society are instructive regarding applications of the rule of law in situations of national emergency, freedom of religion, and the inadequacy of traditional legal remedies for certain human rights violations, especially those affecting religious minorities. The present article endeavours to explore these issues and to explain more broadly how the Korean government harnessed the COVID-19 pandemic as a convenient foil to persecute elements in society that it deemed undesirable.

COVID-19 in Korea
COVID-19 has affected different countries in a wide variety of ways, and government responses to the pandemic have also varied. Australia, for example, declared a state of emergency, whereas Bangladesh acted in a more ad hoc manner, declaring a country-wide "general holiday" from 26 March to 5 May 2020 in lieu of an official lockdown. Japan declared a state of emergency but relied on "voluntary" social distancing (jishuku) rather than legal enforcement. In the meantime, Brazil and Hungary, amongst other states, avoided explicitly declaring an emergency but used the crisis as an excuse to exercise extraordinary powers and implement legislation aimed at curtailing civil liberties and granting additional authority to the executive branch. A wide range of other responses also occurred throughout the world. 2 The catalogue above highlights the fact that the perils posed by a pandemic do The IDCPA was designed as comprehensive legislation for the management of Furthermore, the open-ended nature of Article 76's reference to "other information" means that the ambit of collectable material is potentially very broad indeed. Finally, the creation of a public "right to know" and an obligation for state authorities to share information with them concerning infected individuals implies a decision that individual privacy is significantly less important than the protection of public health. In addition, the legislation gives the government a variety of legal tools for imposing physical restrictions during a health crisis. In particular, Article 47(1) empowers authorities to shut down any location "deemed contaminated," without stipulating any test for contamination that should apply.
Article 49(2) further permits the "restrict[ion] or prohibit[ion of] performances, assemblies, religious ceremonies, or any other large gathering of people." Again, these tools would be applied swiftly and decisively against the SCJ shortly after the outbreak of the pandemic. This official announcement of a connection between the SCJ and the COVID-19 outbreak provided considerable fodder for those who wished the church ill. The church was repeatedly cited in the media as having impeded the government's requests for transparency concerning its membership, and even of having provided false lists of members and asked its members to hide from authorities. 17

Lee Man-hee and the SCJ
These allegations ultimately provided the kernel of the indictment against Lee Man-hee before the Suwon District Court, to which we shall return anon.
In addition, entirely spurious allegations were made against Lee and the church. The media alleged that Lee had instructed SCJ members not to wear face coverings, as their faith would shield them against infection. A number of congregants were also allegedly instructed to endure COVID-19 and to attend SCJ ser-

The indictment of Lee Man-hee
As noted above, following the outbreak linked by the authorities to Patient 31 in Daegu, the Korean government requested that the SCJ supply lists of all its members, not only in Daegu but throughout South Korea and even abroad, as well as a list of its property interests.
The SCJ supplied several lists in response to this request. However, the authorities suspected that the lists contained omissions. Therefore, a raid was carried out on the church's headquarters. SCJ leaders, including Chairman Lee himself, were accused of obstructing the work of health authorities by submitting incomplete lists, even though the police admitted that any discrepancies in the lists were minor in nature. 27 On the night of 31 July, 28 the then 89-year-old Chairman Lee was arrested. He was later committed to trial before the Suwon District Court, which rendered its verdict on 13 January 2021.
The principal question before the court concerned the application of the ID-CPA by the Korean authorities. More specifically, the court was asked how far health authorities may go in applying the IDCPA when summoning, during a pandemic, information that private parties would normally have the right to keep confidential on the basis of privacy legislation. The Korean judges agreed that in the exceptional situation of a pandemic, authorities may summon otherwise confidential information, but that this power is subject to reasonable limits and omitted, as Chairman Lee argued that they did not really belong to the SCJ, ultimately the church was found, overall, to have co-operated effectively.
The court reached a similar conclusion concerning the list of SCJ members.
The prosecution had built its case on a wiretapped phone conversation in which Chairman Lee, when first informed that a full list of church members had been requested, reacted negatively. However, as noted, the request itself was excessive and went beyond the terms of what was permitted by the IDCPA. As such, the court found, Chairman Lee's reaction was justified. In any event, ultimately, the list requested, including names, dates of birth, genders, addresses, and telephone numbers, was ultimately supplied to the authorities on 25 February. While prosecutors objected that the list was incomplete, because it did not include the resident registration numbers of the members, the court noted that this information had not been specifically requested and could therefore be omitted. eight names were missing. However, these discrepancies were attributed to simple mistakes in the database itself, as the court observed that the birthdates were not altered after the CDCH requested the list, so that the inaccuracy did not reflect an intent to obstruct the administration's measures against COVID-19. As for the eight missing names, some were dead while others had left the church (and two were in the process of doing so) and had requested the removal of their personal data from the SCJ's database.
The court heard statements from public health officials that there was no evi- Although the details of the case against Lee are complex -and related to events unconnected to and predating the pandemic -the crux of the court's judgment on this count was that according to the SCJ's own regulations, donations to individuals were prohibited. The court concluded that by depositing donations received into a bank account registered in his own name, Chairman Lee was guilty of embezzlement of funds. Statements by donors submitted by the defence as evidence that they had no complaints and were indeed happy that Chairman Lee used their gifts for his travels and related activities were regarded by the court as irrelevant.
With respect to the organisation of "illegal events," these accusations again concerned events that had occurred long before and were substantially unrelated to the COVID-19 crisis. The facts of these events were clear and known to authorities, yet Chairman Lee was not prosecuted for them before the COVID-19 crisis. Only after the indictment related to breaches of the IDCPA was brought forward were these events resurrected.
The charge of organising illegal events was related to a number of incidents between 2014 and 2019 in which the SCJ and other organisations with which Lee was associated had rented premises for an event. The rental agreement was then cancelled due to pressures by the SCJ's opponents; the SCJ deemed the cancellation illegal (as a breach of contract) and held the event nonetheless. The leaders and members of the SCJ and related organisations did not enter the premises by force, and indeed, any communication of cancellation by the rental agencies or venues seems to have been merely formal. Ultimately, complaints by the rental agencies were dismissed or withdrawn. However, in 2020, these cases were reopened and cited amongst the reasons for arresting and prosecuting Chairman Lee.
Accusations that Chairman Lee and the SCJ had held illegal events were resolved well before 2020. Moreover, in relation to the majority of such events, the Suwon District Court concluded that "these cases had been already investigated in the past and cleared." It found Chairman Lee not guilty in connection with these three events. However, when examining one 2017 case, the court found Chairman Lee guilty of having "known and directed" actions misleading the City of Hwaseong into believing that the organiser of the event was a "volunteer organisation", when it was in fact the SCJ. Here, under pressure from anti-SCJ pressure groups, the city of Hwaseong attempted to cancel the agreement it had signed five days before the event, which the lessees did not accept. In the end, officers of the city of Hwaseong attended the event, were satisfied that it was not a proselytisation rally for the SCJ but rather a civil event organised by an NGO, and asked for the payment of the rent (which followed shortly) to close the matter. Nonetheless, Lee was found to have organised an illegal event, as the court found that the event was against the terms of the lease agreement, which prohibited religious ceremonies.
It is difficult to make sense of the additional charges relating to embezzlement and illegal events, as they were substantially and temporally unconnected to the IDCPA or the pandemic. In addition, they had previously been investigated, with the authorities having found that Chairman Lee had no case to answer. However, in adding them to the COVID-19-related indictment, prosecutors ultimately ensured that Lee would be convicted of an offence, thus saving face for the state.
He was sentenced to three years' imprisonment, suspended for four years. This sentence, as well as the verdict (acquittal on the charges related to the IDCPA, conviction on the embezzlement and illegal events charges), was confirmed by the Court of Appeal and ultimately by the Korean Supreme Court (with the suspension extended from four to five years).

Conclusion: Korea and the rule of law
On paper, Korea's response to COVID-19 seemed superior to that of many states around the world. By using regular legislation, crafted for the purpose of pandemic response, Korea managed to avoid enacting broad emergency measures. A certain temptation to allow governments space and time to tackle crises is quite normal. Dealing with a crisis requires flexibility. However, democratic oversight mechanisms and human rights are not just fair-weather friends. They are especially important when no one is looking, or when people's attention is elsewhere. Legislative drafting must take into account the political temptation to use flexible legislation in a non-impartial manner in order to scapegoat and pursue one's enemies. When the government fails to prevent excesses, as happened in Korea, the courts represent the next port of call.
In a society that respects the rule of law, it is essential that courts function as guarantors to counter such excesses by the executive branch. Such guarantees are all the more important in times of crisis, particularly in light of the propensity of such crises to provide opportunities for the repression of minorities, particularly religious minorities. 34 Here again, Korea appears to have failed the test.
Although Chairman Lee was acquitted of the charges pertaining to the matter at issue -namely, failure to comply with the IDCPA -other charges unconnected to the pandemic were added to the indictment. Whether they should properly have been tried together, particularly during a time when Lee and the SCJ were receiving consistent negative media coverage, is questionable, as is the fact that Lee was convicted of what appear, factually, to be tenuous offences that authorities had previously investigated and had determined did not warrant his indictment. 35 Tempering the above, to some degree at least, is the sentence handed down.
The fact that Lee escaped spending time in prison, with the custodial portion of his sentence having been suspended, seems, on the face of it, to lessen the apparent injustice of the verdict. However, such a conclusion ignores the broader context. The events recounted in the present contribution -from the outbreak of the virus in Korea to the confirmation of the verdict by the Supreme Court -took more than two years, during which Lee and the SCJ were scapegoated and castigated by public figures and the Korean media. This caused the SCJ to lose many of its congregants, who suffered due to their association with the religion and who ultimately left the church.
Korea styles itself as a progressive, democratic regime and is a party to a number of important human rights treaties. 36 In addition, Korea's constitution contains multiple provisions concerning human rights. Specifically, the right to