[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here and Part I is available here.]
—Tom Ginsburg, Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago
As the Constitutional Court of South Korea turns thirty years old, we
have an opportunity to reflect back on its remarkable achievements. Established
as part of the founding bargain of the Sixth Republic, which restored the
country’s democracy in 1987, the Constitutional Court is an example of the turn
toward judicial review in the so-called “Third Wave” of democratization. Whereas
prior eras of constitutional reform did not always feature powerful courts, the
wave of democratization that began in the mid-1970s (peaking around 2006) has
been court-centered.
South Korea was at the vanguard of this process. In 1988, there were 37 countries that had a constitutional court or council to interpret the constitution. By 2017, that number was 96—essentially half the countries with written constitutions.[1] Of the many “third wave” courts, South Korea’s has surely been among the most successful on three dimensions: It has assumed a major role in its political system, it has not suffered backlash, and it has become a regional leader. Let me explain each point in turn.
First, the Constitutional Court has assumed a central role in its
political system. As former Justice Ilwon
Kang of the Constitutional Court notes
in his contribution to this symposium, few people in 1988 expected the Court to
play a vigorous role in Korea’s democracy. But by now it has received and resolved
tens of thousands of cases, including hundreds involving the constitutionality
of statutes. It has shown itself quite
willing to strike down government actions and to help clear the channels for
the country’s democratic institutions to operate.
The issues the Constitutional Court has confronted have been
increasingly high profile. In its early years, the Court decided
several cases related to elections and other core features of democracy, and it
also made cautiously progressive decisions on issues like the National Security
Act, which had been abused in the authoritarian period to limit freedoms of
speech and association. In 2014, the Court was confronted with a government
request to ban the Unified Progressive Party, a political group associated with
North Korea. The use of party bans is a sensitive one in any democracy, as it
risks substituting a court’s judgment for that of the people, who could after
all reject the party in an election. Drawing
on the idea of “militant democracy,” countries like South Korea, which
confronts a hostile and dangerous neighbor, have provided mechanisms to ban
parties that seek to undermine the constitutional order. As in postwar Germany,
the South Korean Constitution gives this role to the Constitutional Court. In an 8-1 decision, the Court decided
that the UPP had to give up its seats in the National Assembly.
The highest profile cases have been the two impeachment decisions
involving sitting presidents. In 2004,
President Roh Moo-hyun ran into trouble with the conservative opposition parties
in the National Assembly, which passed a motion for impeachment by the necessary
2/3 vote. Under Article 112 of the South Korean Constitution, impeachment
motions must be confirmed by the Constitutional Court. The Court decided to
bifurcate the issue into the question of whether there was a violation of the
law, and whether any violations were severe enough to warrant removal. While
the Court found that Roh had violated certain provisions of electoral law that prevented him
from campaigning for his party, it also found that these violations were not
severe enough to warrant removal from office. Roh served out the remainder of
his term, though he ended up committing suicide in 2009, after corruption
allegations surfaced. With this
decision, the Constitutional Court confirmed its place as the very guardian of
the constitutional order, taking for itself the role of final arbiter of
impeachment.
This role was again evident in late 2016, when it was revealed that
President Park Geun-hye had been heavily influenced by a Rasputin-like figure
named Choi Soon-sil. Park’s declining popularity led to an impeachment motion
from the National Assembly, and the case came to the Constitutional Court. This time, in a careful and well-written
opinion issued in March 2017, the Court found the violations severe enough to
warrant Park’s removal. Within three months, a new election was held and
President Moon Jae-in was elected. These
cases demonstrate the very central role the Constitutional Court has played in
Korea’s vigorous democracy.
One can also compare the Constitutional Court with other institutions
in South Korea. Polls show that the Court remains popular, and its decision to
remove President Park was supported by nearly four out of five Koreans. One might contrast this popularity with that
of the Supreme Court, whose former Chief Justice Yang Sung-tae has just been arrested
on charges of tampering with cases, including the politically sensitive issue
of wartime liability of Japanese companies.
News
reports also accused Yang of trying to “rein in” the Constitutional
Court, as the two courts had fought in the past as to their respective
jurisdictions.
Second, the Constitutional Court has suffered no great backlash. Whereas constitutional courts in many other
jurisdictions have been subject to withering criticism from politicians, there
is relatively little of this in South Korea. Other courts have found their
jurisdiction limited in the wake of scandals or politically sensitive
decisions, but there has been no such move in these thirty years. Nor have there
been attempts to pack the Court or remove judges on political grounds. Instead,
the Court has reached out throughout Korean society to promote constitutional
values.
Finally, the Constitutional Court has become a leader in what Professor
David Law (Washington University) has called “Judicial Diplomacy.”[2] The Court has
well-institutionalized mechanisms for learning about foreign jurisprudence, and
has also been a leader in organizing courts in the region. Korea is the only
Asian member of the Venice Commission, and Constitutional Court judges like
Justice Kang are the typical representatives. The Korean Constitutional Court
played the leading role in establishing the Association of Asian
Constitutional Courts and Equivalent Institutions. It is a regional and global
leader in constitutional justice.
These achievements become all the more impressive in a comparative a perspective. The other constitutional courts in Asia, with the exception of that of Taiwan, have not enjoyed the same sustained success. The region’s oldest democracy, Japan, is not known for vigorous judicial review. And the other new courts of the Third Wave, particularly in Eastern Europe and Latin America, have in many countries suffered significant politicization. It is sometimes said that the judicialization of politics leads to the politicization of the judiciary, but the South Korean Constitutional Court has managed to avoid the latter fate. The story of its success surely deserves closer study.
Suggested Citation: Tom Ginsburg, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part II: The South Korean Constitutional Court in Comparative Perspective, Int’l J. Const. L. Blog, Mar. 9, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—part-ii:-the-south-korean-constitutional-court-in-comparative-perspective
[1]
Data from the Comparative Constitutions
Project, on file with author.
[2]
David S. Law, Judicial
Comparativism and Judicial Diplomacy, 163 U. Pa. L. Rev. 927 (2015).
