What Miranda rights?
The author is the head of the national news 1 team of the JoongAng Ilbo.
The current Constitution revised in October 1987 not only includes direct presidential elections but also reinforces basic rights and human rights. The most notable one is Article 12 on physical liberty. Clause 5 was newly added, “No person may be arrested or detained without being informed of the reason therefore and of his right to assistance of counsel.”
It contains what’s known as the “Miranda warning.” The U.S. Supreme Court made the ruling in 1966 and most democratic countries embrace it. But it is hard to find another country including it in the Constitution.
Was Korea advanced in human rights awareness to include the Miranda rights in the Constitution. Hardly so. Only nine months before the revision, Park Jong-chul, a junior at Seoul National University majoring in linguistics, was unlawfully taken by six anti-communist police agents and tortured and murdered on Jan. 13, 1987.
Unlawful arrests continued even after the Constitution stipulated the Miranda rights. During the Ssangyong Motors strike in June 2009, lawyer Kwon Young-gook, the head of the labor committee of the Lawyers for a Democratic Society, was arrested for interference with a public official’s duty, and he was not given the Miranda warning.
Eight years later in 2017, the Supreme Court acquitted Kwon and sentenced the police responsible for the unlawful arrest to six months in jail with a stay of execution for two years for abuse of public authority.
In the Moon Jae-in administration, the rate of detention in the investigation process has been declining. The rate of detainment in criminal cases in 2016 fell to 0.98 in 2020 from 1.3 percent in 2016. Meanwhile, court custody during trials is increasing.
After a six-month warrant for Jeong Chang-ok, indicted for throwing a shoe at President Moon Jae-in and assaulting police during a protest rally, expired in July last year, Jeong was put under court custody on the separate charge of insulting the surviving families of the Sewol Ferry incident victims. It is controversial because putting someone under court custody during a trial is limited to “cases of not attending a trial without a justifiable reason.”
But the court explained that there was no legal grounds and that extending the custody of the defendant for additional charges is common. This practice of trial under custody is a serious human rights infringement in itself and leads to serious problems as the principle of “presumed innocent until proven guilty” in the Constitution is violated.