[경향신문] 2010년 12월 17일(금) 오후 01:57
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| Unanimous Supreme Court verdict: "violation of the essence of democracy"
'Yusin government' invoked it groundlessly ... All previous rulings based on Emergency Measure's constitutionality rejected
The Supreme Court of South Korea has ruled that emergency measures issued by former president Park Chung-hee have been in violation of the constitution.
The presidential Emergency Measures number nine in total and these were based on Article 53 of former president Park's Yusin Constitution of 1972. The Yusin government of the late President Park used the Emergency Measures, which were legally enforceable, to suspend the freedom and rights of the people and reinforce his military dictatorship.
On December 16, the Grand Bench of the Supreme Court, presided over by Justice Cha Han-sung, unanimously delivered "a not guilty verdict" at the retrial of O Jong-sang, who was convicted in 1975 of violating the Anticommunist Law and an Emergency Measure by the Supreme Court. Proclaiming Mr. O not guilty of violating the Emergency Measure, the Supreme Court stated as its reason the fact that Emergency Measure No. 1 was unconstitutional.
The Supreme Court gave two reasons to explain why the Emergency Measure violated the constitution. Firstly, it judged that although the measure was based on Article 53 of the Yusin Constitution, it violated the essence of democracy and was therefore unconstitutional. The court stated that "Emergency Measure No. 1 seriously restricted freedom of expression and personal liberty, which are essential elements of democracy, thereby violating basic rights that were guaranteed even by the Yusin Constitution."
It also judged that the measure did not satisfy the grounds for issuance specified in Article 53 of the Yusin Constitution, saying that "The Emergency Measure was (groundlessly) invoked, despite the fact that the state was not facing a serious crisis or under a direct security threat at the time."
The Supreme Court's verdict of unconstitutionality means that all existing judicial precedents have lost their legal validity. The court stated that it repealed all its verdicts passed since 1975 which were based on Emergency Measure No. 1 being constitutional.
Starting in 1975, the Supreme Court delivered guilty and not guilty verdicts with the view that Emergency Measure No. 1 was constitutional. Then, from the beginning of the 2000s, applications were made for retrial of cases of forced indictments and were accepted by courts.
Retrials began in lower courts, but cases were dismissed because the Emergency Measure no longer existed. Case dismissals, rather than not guilty verdicts, made it hard to receive criminal indemnity and impossible to receive damages from the state.
The Supreme Court stated, "This is highly significant in terms of judicial history, as it repeals the Supreme Court's judgment that Emergency Measure No. 1 was constitutional under the Yusin Constitution." Commenting on the verdict, the group MINBYUN Lawyers for a Democratic Society said, "This judgment corrects past mistakes where courts made rulings incompatible with the constitution and with justice."
In 1974, Mr. O was sentenced to three years in prison and three years' suspension of qualification after saying on a bus, "the government encourages people to eat flour-based foods, but high officials and rich people eat wheat-based food that consists mostly of eggs and meat, with just a few noodles. How can the people adapt to the government's policy?"
In 2007, however, the Truth and Reconciliation Commission recommended that Mr. O's case be retried, saying that he must be given an opportunity to restore his honor. A court also decided that his case must be retried. Seoul High Court last year declared Mr. O not guilty of violating the Anticommunist Law, but dismissed the part of his case related to the Emergency Measure.
Q: Emergency Measures?
A: A series of nine Emergency Measures passed by President Park Chung-hee in accordance with Article 53 of the Yusin Constitution of 1972. Emergency Measure No. 1, passed on January 8, 1974, banned denial of, opposition to, distortion of and maligning of the constitution, as well as the suggestion or instigation of such acts or telling others about them. It was criticized as a violent measure to suppress criticism of the Yusin system, and did in fact produce many innocent victims. (General news. Dec 17, 2010)
- ⓒ 경향신문 & 경향닷컴(www.khan.co.kr), 무단전재 및 재배포 금지〈경향닷컴은 한국온라인신문협회(www.kona.or.kr)의 디지털뉴스이용규칙에 따른 저작권을 행사합니다.〉
'Yusin government' invoked it groundlessly ... All previous rulings based on Emergency Measure's constitutionality rejected
The Supreme Court of South Korea has ruled that emergency measures issued by former president Park Chung-hee have been in violation of the constitution.
The presidential Emergency Measures number nine in total and these were based on Article 53 of former president Park's Yusin Constitution of 1972. The Yusin government of the late President Park used the Emergency Measures, which were legally enforceable, to suspend the freedom and rights of the people and reinforce his military dictatorship.
On December 16, the Grand Bench of the Supreme Court, presided over by Justice Cha Han-sung, unanimously delivered "a not guilty verdict" at the retrial of O Jong-sang, who was convicted in 1975 of violating the Anticommunist Law and an Emergency Measure by the Supreme Court. Proclaiming Mr. O not guilty of violating the Emergency Measure, the Supreme Court stated as its reason the fact that Emergency Measure No. 1 was unconstitutional.
The Supreme Court gave two reasons to explain why the Emergency Measure violated the constitution. Firstly, it judged that although the measure was based on Article 53 of the Yusin Constitution, it violated the essence of democracy and was therefore unconstitutional. The court stated that "Emergency Measure No. 1 seriously restricted freedom of expression and personal liberty, which are essential elements of democracy, thereby violating basic rights that were guaranteed even by the Yusin Constitution."
It also judged that the measure did not satisfy the grounds for issuance specified in Article 53 of the Yusin Constitution, saying that "The Emergency Measure was (groundlessly) invoked, despite the fact that the state was not facing a serious crisis or under a direct security threat at the time."
The Supreme Court's verdict of unconstitutionality means that all existing judicial precedents have lost their legal validity. The court stated that it repealed all its verdicts passed since 1975 which were based on Emergency Measure No. 1 being constitutional.
Starting in 1975, the Supreme Court delivered guilty and not guilty verdicts with the view that Emergency Measure No. 1 was constitutional. Then, from the beginning of the 2000s, applications were made for retrial of cases of forced indictments and were accepted by courts.
Retrials began in lower courts, but cases were dismissed because the Emergency Measure no longer existed. Case dismissals, rather than not guilty verdicts, made it hard to receive criminal indemnity and impossible to receive damages from the state.
The Supreme Court stated, "This is highly significant in terms of judicial history, as it repeals the Supreme Court's judgment that Emergency Measure No. 1 was constitutional under the Yusin Constitution." Commenting on the verdict, the group MINBYUN Lawyers for a Democratic Society said, "This judgment corrects past mistakes where courts made rulings incompatible with the constitution and with justice."
In 1974, Mr. O was sentenced to three years in prison and three years' suspension of qualification after saying on a bus, "the government encourages people to eat flour-based foods, but high officials and rich people eat wheat-based food that consists mostly of eggs and meat, with just a few noodles. How can the people adapt to the government's policy?"
In 2007, however, the Truth and Reconciliation Commission recommended that Mr. O's case be retried, saying that he must be given an opportunity to restore his honor. A court also decided that his case must be retried. Seoul High Court last year declared Mr. O not guilty of violating the Anticommunist Law, but dismissed the part of his case related to the Emergency Measure.
Q: Emergency Measures?
A: A series of nine Emergency Measures passed by President Park Chung-hee in accordance with Article 53 of the Yusin Constitution of 1972. Emergency Measure No. 1, passed on January 8, 1974, banned denial of, opposition to, distortion of and maligning of the constitution, as well as the suggestion or instigation of such acts or telling others about them. It was criticized as a violent measure to suppress criticism of the Yusin system, and did in fact produce many innocent victims. (General news. Dec 17, 2010)
- ⓒ 경향신문 & 경향닷컴(www.khan.co.kr), 무단전재 및 재배포 금지〈경향닷컴은 한국온라인신문협회(www.kona.or.kr)의 디지털뉴스이용규칙에 따른 저작권을 행사합니다.〉
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