5․18 광주학살 이후, 비상사태 하에서의 인권보호체제는 구축되었는가?

Enactments for States of Emergency after Gwangju Massacre

Acts relating to states of emergency under authoritarian governments give some good grounds for suppressing resistant civil society in order to protect the dominant group of the authoritarian regime. Our history has seen so many typical abuses of emergency power during states of emergency. After Gwangju massacre, no emergency action or martial law was declared under the constitution of the Fifth Republic, but de facto martial law by combat police was continued. The authoritarian government made gross human rights violations like fraction activities on all areas of social movements, torture, unlawful detention, suspicious death, forced enlistment, and the Green Project. Systems and practices that caused serious human rights violations under the prior authoritarian governments, remain largely unchanged. The pattern established in Gwangju in May 1980 is repeated in Yeouido in November 2006 and in Daechuri in May 2006. It is reconfirmed that, before the name of national security, state is not a field of rational argumentation, but merely a monopoly of violence. Citizens are still exposed to violence and deceived by all sorts of plausible lies of state power.Article 37, Section 2 of the Constitution stipulates that acts may limit freedom and rights of the citizens if necessary for national security, maintaining order, and social welfare, and cannot simultaneously violate the essential contents of the freedom and rights. Citizen’s freedom and rights should not be violated unlimited in the name of national security. The substance of the nonderogable rights needs to be identified and specified more correctly. The constitutional court and the legislative should take the International Covenant on Civil and Political Rights, the Paris Minimum Standards of Human Rights Norm in a State of Emergency, and the Declaration of Minimum Humanitarian Standards into consideration. Recently, a few improvement schemes related to military justice are suggested. The problem is that they rationalize or embellish the current system, not completely rebuilding it from the constitutional viewpoint. A broader plan should be designed. Liberal constitutionalism will be realized only when recognizing that the biggest enemy to human rights was reason of state in Korea’s modern history.