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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part I: The Constitutional Court’s Role in South Korea’s Democratization

[Editor’s Note: This is the first entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here.]


Ilwon Kang, Former Justice, Constitutional Court of Korea

“South Korea shows the world how democracy is done,” wrote a Washington Post columnist, praising the March 10, 2017, decision of the Constitutional Court of Korea to uphold the National Assembly’s vote to impeach President Park Geun-hye.[1] He continued: “The Court’s act of institutional defiance is especially remarkable when you consider that democracy in South Korea is a mere 30 years old.”

Despite its relatively recent nascency, Korean democracy is highly regarded. The Democracy Index of the Economist Intelligence Unit, a measure of democratization, ranked Korea 21st among 167 states and territories in 2018. Korea was the highest-ranking country in Asia, one notch above Japan.

Many factors have contributed to Korea’s rising democratic profile over the past 30 years. But the Constitutional Court is indisputably one of the most important enablers of Korean democracy.

Background

Koreans’ nationwide democracy movement in 1987 forced the Korean government to amend its authoritarian Constitution. Cooperation between the ruling and opposition parties—a first for Korean history—led to a proposal for constitutional revision, and a bipartisan compromise during the revision process led to establishment of the Constitutional Court. Hence, the Court’s relations with the executive branch and the National Assembly have not been antagonistic, and its decisions have been readily accepted by the Blue House and the National Assembly. Such deference to the Constitutional Court has given the newly established Court considerable power.

The amended Constitution and the Constitutional Court Act provide for a right to individual constitutional complaint. Anyone whose constitutional rights are infringed on by the exercise or non-exercise of governmental authority may file a constitutional complaint with the Constitutional Court. Koreans soon recognized the value of this unique judicial review system.

The Supreme Court of Korea was displeased with the Constitutional Court’s emergence as the final arbiter of constitutional law in Korea. In 1996, the Supreme Court refused to follow the Constitutional Court’s conditional unconstitutionality decisions.[2] The Constitutional Court responded by nullifying the Supreme Court’s open challenge to its rulings.[3] This tension resulted in some confusion over the jurisdiction of the key Korean courts—and generated a rivalry over which institution should serve as the legitimate guardian of the people’s fundamental rights.

The Court’s Expanding Role

Before 1987, Koreans had endured a series of dictatorships for about 40 years. These authoritarian governments produced numerous laws and decrees that violated basic rights; some were unquestionably unconstitutional. Ironically, this provided a favorable milieu for the newborn Constitutional Court: Koreans embraced the Court because of its significant role in eliminating these regulations and protecting their freedoms.

During its first decade (1988–1998), in addition to striking down laws that infringed on people’s fundamental rights, the Constitutional Court voided all statutes giving the president unlimited power to issue certain decrees. During the 1960s to 1980s, Korean presidents administered many decrees concerning matters that rightfully belonged to the National Assembly; the court decisions improved the balance of power between the president and the National Assembly. Furthermore, the Constitutional Court invalidated several election laws. In 1994, for example, the Court took issue with the Presidential Election Act, which prohibited election campaigns.[4] This and similar rulings facilitated fairer and freer elections; and in 1997, the opposition leader Kim Dae-jung won the presidential election as the first liberal candidate in Korea. Koreans have since witnessed several peaceful regime changes, an undeniable indicator of a functioning democracy.

During its second decade (1998–2008), the Constitutional Court handed down a number of decisions affecting foundational issues of democracy. In 2002, it ruled that the ban on “improper communication” on the internet violated the Constitution.[5] This ruling increased the exchange of information via the internet and made Korean society more open. In 2005, the Constitutional Court found the patriarchal family registration system unconstitutional.[6] Given the male-oriented Korean culture and strong opposition of the Korean Confucians, this was a courageous decision.

During its third decade (2008–2018), the Constitutional Court became the most trusted institution in Korea. The Court addressed almost all major issues of Korean society, settling various sociopolitical conflicts. In 2013, for instance, when relations between North Korea and South Korea led to the brink of war, the Unified Progressive Party (UPP) leaders were arrested for plotting treason. This controversy polarized Korean society. When the Constitutional Court disbanded the UPP, in part because the party’s objectives and activities violated the basic democratic order of South Korea,[7] the majority of people supported this decision, which resolved the social and political dispute.

For the past 10 years, the Constitutional Court has expanded the fundamental rights of Koreans by interpreting the Constitution in a more human-rights-friendly way, even overruling some well-established precedents. In 2015, it declared that punishing adultery as a crime was unconstitutional.[8] In 2018, the Court found that the code denying conscientious objectors alternative options to military service was incompatible with the Constitution.[9] It also ruled against a statutory ban on outdoor assemblies in the vicinity of the National Assembly[10] and court buildings.[11] Most importantly, the 2017 impeachment ruling against President Park was a landmark decision establishing the power of Korea’s democratic constitution over imperialism.

Conclusion

When the Constitutional Court of Korea was created in 1987, few expected the Court to establish itself so quickly as a powerful institution. The Court immediately asserted its authority by eliminating many unconstitutional laws, and the widespread support of the people then allowed the Court to expand its judicial oversight. To date, the Constitutional Court has struck down almost all of the undemocratic relics of Korea’s past regimes while expanding fundamental rights for Koreans. Because of the Court’s towering record of 30 years as an independent and trusted constitutional tribunal, the world now recognizes Korea as a true democracy. Justifiably so.  

Suggested Citation: Ilwon Kang, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part I: The Constitutional Court’s Role in South Korea’s Democratization, Int’l J. Const. L. Blog, Mar. 7, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—part-i:-the-constitutional-court’s-role-in-south-korea’s-democratization


[1] Constitutional Court [Const. Ct.], 2016Hun-Na1, Mar. 10, 2017, (2017 D.K.C.C. 1) (S. Kor.).

[2] Supreme Court [S. Ct.], 95Nu11405, April 9, 1996, (44(1) JIP 762) (S. Kor.).

[3] Constitutional Court [Const. Ct.], 96 Hun-Ma172, Dec. 24, 1997, (9-2 K.C.C.R. 842) (S. Kor.).

[4] Constitutional Court [Const. Ct.], 93Hun-Ka4 etc., July 29, 1994, (6-2 K.C.C.R. 15) (S. Kor.).

[5] Constitutional Court [Const. Ct.], 99Hun-Ma480, June 27, 2002, (2002 D.K.C.C. 49) (S. Kor.).

[6] Constitutional Court [Const. Ct.], 2001Hun-Ka9–15, Feb. 3, 2005, (2005 D.K.C.C. 99) (S. Kor.).

[7] Constitutional Court [Const. Ct.], 2013Hun-Da1, Dec. 19, 2014, (2014 D.K.C.C. 300) (S. Kor.).

[8] Constitutional Court [Const. Ct.], 2009Hun-Ba17, Jan. 2017, (2015 D.K.C.C. 1) (S. Kor.).

[9] Constitutional Court [Const. Ct.], 2011Hun-Ba379, June 28, 2018, (30-1B K.C.C.R. 370) (S. Kor.).

[10] Constitutional Court [Const. Ct.], 2013Hun-Ba322, 2016Hun-Ba354, 2017Hun-Ba360, 398, 471, 2018Hun-Ka3, 4, 9 (consol.), May 31, 2018, (30-1B K.C.C.R. 88) (S. Kor.).

[11] Constitutional Court [Const. Ct.], 2018Hun-Ba137, July 26, 2018, (262 K.C.C.G. 1259) (S. Kor.).

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Published on March 7, 2019
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