hankyoreh

where three Yushin-era measures were deemed unconstitutional. (by Park Jong-shik

By Yeo Hyeon-ho, legal correspondent

The Constitutional Court ruled that the first, second, and third emergency measures proclaimed by President Park Chung-hee in the 1970s were unconstitutional.

The unanimous Mar. 21 ruling by eight judges under acting chief Song Doo-hwan came in response to a constitutionality appeal lodged by six people over Article 53 of the Yushin Constitution, which was the basis for the three measures and their promulgation. One of them, 72-year-old Oh Jong-sang, had been sentenced to three years in prison for violating the measures by allegedly aiding North Korea with criticisms of the same Constitution.

With this decision, people who were found guilty of violating the measures in the past may be entitled to restitution through retrials in accordance with the Criminal Procedure Law.

The court ruled the three measures unconstitutional because they “not only lacked legitimacy of legislative purpose and the appropriateness that must be present in any restriction of basic rights, but also go against the principle of legality and excessively restrict or violate such basic citizen rights as freedom of expression, the requirement of a warrant and freedom of physical person, the right to a trial by a judicial officer, and the right to study.”

Article 53 of the Yushin Constitution, which served as the basis for the emergency measures, was not addressed in the trial because it had not been applied in the cases in question. But the court said in no uncertain terms that it found the Yushin system to be in error.

“The sovereign people of this country decided to amend the Constitution after seeing that certain provisions in the Yushin Constitution and the emergency measures excessively violated basic rights and compromised the basic order of liberal democracy,” the court observed.

It also argued that the Constitutional Court, and not the Supreme Court, had the right to review the constitutionality of the emergency measures, since they had the same force as laws.

“Because the Constitutional Court’s decisions on the unconstitutionality of criminal provisions have the effect of a sentence and provide grounds for retrial, it may make decisions on whether or not they are constitutional” regardless of Supreme Court rulings, it said.

This ruling has been expected since the Supreme Court found the first of them unconstitutional in December 2010.

The ruling and opposition political parties greeted the decision positively. The Blue House also issued a statement that it respected the ruling, but President Park Geun-hye - the daughter of Park Chung-hee - has not commented on it yet.

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