Why South Korea's Catholic bishops want dormant death penalty to be fully abolished

South Korea's chequered history with the death penalty is set to come under fresh scrutiny as the country's Constitutional Court on Thursday begins deliberations on the matter for the first time in 12 years.

The country of 51 million is widely seen as abolitionist in practice - it has not hanged anyone for 25 years - but the latest case before the Constitutional Court is raising hopes among anti-death penalty activists that a complete and irreversible abolition is possible.

Thursday's proceedings are the result of a 2019 appeal by the Catholic Bishops' Conference of Korea, on behalf of a prisoner who has been referred only by his last name, Yoon.

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He was handed the death penalty after being convicted of murdering his parents in an earlier trial. The Constitutional Court has heard the matter of the constitutionality of capital punishment twice before, in 1996 and 2010.

The inclusion of liberal justices in the court since 2010 has offered activists hope that there may be a favourable outcome this time around.

In 1996, the nine-judge Constitutional Court ruled the death penalty constitutional by a margin of 7-2. In 2010, it affirmed the constitutionality of the death penalty with a margin of 5-4. At least six of the nine judges must agree for the court to strike down capital punishment.

The claimants in the latest case - the Catholic bishops - are arguing that the justice system uses criminals as a "social shield for society", in addition to the death penalty ultimately posing as an "invasion of human dignity and value".

Neutral observers and anti-death penalty activists alike are in agreement that the public remains firmly in support of retaining the death penalty, even if it is not used.

In a 2021 survey conducted by Gallup Korea, 77.3 per cent of the country's residents said they believed capital punishment had to be retained. Respondents in their 30s had the highest ratio of agreement with 80.3 per cent.

But a 2018 survey by the National Human Rights Commission of the Republic of Korea (NHRCK) showed otherwise, with some 67 per cent of respondents agreeing to a repeal of the death penalty if alternatives were available.

Alternatives such as a life sentence without parole garnered 78.9 per cent of support while a life sentence with possibility of parole received 38 per cent.

"But the current consensus is that a life sentence is not an adequate substitute as one can't measure if justice has been served to an inmate with the possibility of parole," said Chung Tae-ho, a law professor at Kyung Hee University in Seoul.

Some anti-death penalty activists also deem life sentences without parole as unconstitutional, as it eliminates any potential for an inmate to rejoin society.

The South Korean government in 2020 agreed to a moratorium on the use of the death penalty by the United Nations General Assembly. But bills to abolish the death penalty have been short-lived on the South Korean national assembly floor.

"Asian countries in general that have roots in Confucian culture are different from the Western world in terms of culture and religious values," Chung said.

South Korea is among 84 countries that have not abolished the death penalty. It is also one of three nations in the Organisation for Economic Cooperation and Development, alongside neighbouring Japan, that still retains the death penalty.

Chung said despite the Catholic Church's outsize influence in the democratic movement that ended autocratic rule, the general goodwill it enjoyed did not mean the public also shared its views on capital punishment. "Contrary to some popular opinion, religion does not pose itself as a major force in South Korean society," Chung said.

Also seen as factor in the retention of the death penalty is an explicit mention of capital punishment in South Korea's constitution.

Article 110-4 of the constitution states: "In the instance of martial law, the military court can practice a single-trial system. But if the death penalty is given, it cannot do so."

Law experts like Chung are dismissive of such justifications. Still, they say abolitionists should keep their hopes up.

Just as Turkey became an exception within the world's Islamic community by banning the death penalty to meet the standards of becoming a member of the European Union (EU), South Korea too is seen as needing to heed the 27-nation bloc's strong views against the death penalty.

Seoul is among a handful of Asian economies with free trade pacts with the EU. These economic imperatives are likely to remain a "deciding component in South Korea's ultimate decision" on the future of the death penalty, Chung suggested.

Between 1948 and the last enforced capital punishment in 1997, 920 people were executed, according to data from the Ministry of Justice.

There are currently 59 inmates on death row including the most recent case of a soldier who shot and killed five fellow comrades in 2016.

Capital punishment has weighed heavily on the country's past, with the former president and Nobel Peace Prize winner Kim Dae-jung coming to power in 1998 nearly two decades after the country's former strongman regime sentenced him to death.

Kim, a central figure in the country's shift to democracy, later had his sentence commuted and was given exile in the US before he returned to his homeland to participate in its politics.

The former president was a tireless anti-death penalty campaigner until his death in 2009.

This article originally appeared on the South China Morning Post (SCMP).

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