Right to Life

Abstract

In this chapter, I survey the right to life as a constitutional right in Japan, South Korea, Taiwan, Hong Kong, the Philippines, Indonesia, Malaysia, and Singapore. I begin with an account of the history of the right to life. I argue that the right to life before WWII is typically formulated in the “due process model”, such as in the Fifth and Fourteenth Amendments to the US Constitution. After WWII, the second generation of the right to life has been reframed to be a freestanding right with heightened substantive and procedural safeguards. In recent decades, the right to life has been absolutized to the extent that it cannot be subject to any balancing except when it conflicts with itself, such as self-defense, necessity, and other occasions where taking a life is strictly necessary to preserve another life in an imminent timeframe. The direct effect of this development is the decline of the death penalty. The right to life in Asia mainly reflects the first generation understanding. Only along with the Third-wave Democratization did the spirit of the second-generation begin to infiltrate into some Asian constitutions. Most of the apex courts in this region, whether liberal democracies or hybrid regimes, delivered decisions upholding the death penalty per se. On the right to life of the unborn, this region is divided roughly along cultural or religious lines. East Asian societies are generally permissive of abortion. In contrast, Southeast Asian societies with dominant monotheistic religions, such as the Philippines(Catholicism), Indonesia, and Malaysia (Islam) are more restrictive of abortion, with the Philippines having the most restrictive law in this region.

Keywords: right to life, capital punishment, abortion, euthanasia, comparative constitutional law