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3.11.2010

South Korean Constitutional Court (barely) upholds the death penalty

By a 5-4 vote, South Korea's Constitutional Court has upheld the constitutionality of the death penalty, per this report in the Hankyoreh. Notably, two of the justices in the majority called for legislative modification or abolition of the death penalty. The Korean Bar Association's statement in response to the ruling describes "the prestige of the state" as being at stake, which suggests that South Korea might be feeling the pull of constitutional convergence on this issue. Having not carried out an execution in 13 years, South Korea is classified by Amnesty International as "abolitionist in practice," which suggests that formal abolition of the death penalty might be of mostly symbolic value. Then again, constitutional law arguably serves more of a symbolic function than ordinary law.

4 comments:

  1. "Having not carried out an execution in 13 years, South Korea is classified by Amnesty International as "abolitionist in practice," which suggests that formal abolition of the death penalty might be of mostly symbolic value. Then again, constitutional law arguably serves more of a symbolic function than ordinary law."

    In the Republic of Ireland there was a constitutional amendment on the death penalty in 2002 that you could argue was largely symbolic.

    The Republic hasn't carried out an execution since 1954, and abolished the death penalty in law in 1990. Nonetheless a constitutional amendment was made in 2002 to forbid the penalty being ever reintroduced and remove vestigial references to capital punishment from the text.

    The amendment (and the referendum on the amendment) was arguably unnecessary because there is no realistic possibility that the penalty will be reintroduced. It is forbidden by international agreements and the EU, and opposed by all major political parties.

    (http://en.wikipedia.org/wiki/Twenty-first_Amendment_of_the_Constitution_of_Ireland)

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  2. Interestingly, Taiwan's Minister of Justice just resigned last night because she refused to execute capital punishments. There are 44 cases piling on her desk, waiting for the Minister's orders to execute. Though Taiwan has not carried any execution for four years, the president declared, soon after the Minister's resignation, that the death penalties handed down by the court should be carried out by law. It might be very interesting to see how the constituion (or constitutional values) would be played out in this debate. But so far, the constitutional court hasn't been involved and no judgments was rendered yet. (Here is the source: http://www.taipeitimes.com/News/front/archives/2010/03/12/2003467850)

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  3. Perhaps it is not entirely a coincidence that in Taiwan also for the past two days Minster of Justice, Ms. Wang, was embroiled into a debate on the non-execution of death penalty and consequently had to step down today. For the news in English, see http://www.taipeitimes.com/News/front/archives/2010/03/12/2003467850

    Two days ago, Minister Wang made an official announcement that she would continue the current practice of non-execution as she contended that death penalty is in violation of the Constitution that protects human rights. She also urged the Constitutional Court to hand down the ruling -without any further delay- on the pending request for the (un)constitutionality of death penalty that was petitioned by a collaborative effort of human rights groups. However, Minister Wang’s announcement was criticized by the opposition party as well as her ruling party, major newspapers and NGOs that represent the interests of victims and their families. Apparently, both President Ma and Premier (President of the Executive Yuan) Wu did not support her stand and as a result she had to resign today.

    For readers’ reference, Taiwan has not had any execution of death penalty since 2005 and as a result of that, I believe, Taiwan has been also listed as a country of non-execution. The Constitutional Court sustained the constitutionality of death penalty in a very early case, and since then, there have been many petitions, particularly from human rights groups, requesting the Court to re-visit the issue.

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