[Editor’s Note: I-CONnect is pleased to feature a special symposium on the 30th anniversary of the Constitutional Court of Korea. The Court marked this historic moment last year in 2018. We are grateful to Professor Kyu Ho Youm for convening this symposium with a diverse array of participants. We hope this symposium will inspire more research in public law with Korea as a comparator jurisdiction.]
—Kyu Ho Youm, Jonathan Marshall First Amendment Chair, University of Oregon
The “Miracle on the Han River,” an expression associated with South Korea’s dazzling economic success after the Korean War, is not the only miracle in that Asian country. Another South Korean miracle—equally significant but less widely known—is political: The country stands out globally for its dramatic change to a robust democracy. South Korea’s transformation since the late 1980s to the rule of law is credited with the judicialization of various conflicts confronting Korean society—and the Constitutional Court of Korea has played an instrumental role in that judicialization, as well as in shaping a society whose Constitution is now interpreted to embrace international human rights law.
The big question for many of us with a sustained interest in the Constitutional Court of Korea is this: How has the Constitutional Court managed to rise to the institutional and non-institutional challenge of establishing itself as the indisputably authoritative voice on constitutional meaning in South Korea? This I-CONnect symposium on the 30th anniversary of the Constitutional Court aims to explore the answer to this question.
Background
The Constitutional Court has undergone quite an evolution. After all, few guessed when it was created in 1987 that the Court would enjoy the kind of unsurpassed trust and respect of Koreans that it is enjoying now. “At best, the Constitution[al] Court will reflect and coordinate a separation of powers instituted through political processes,” two American commentators observed in 1988. “It cannot be relied upon to discharge the threshold task of overcoming South Korea’s long-entrenched military-executive supremacy.”[1]
The history-making “judicial activism” of the Constitutional Court belies the initial skepticism of these and other scholars. By almost every measure, the Court has exceeded many expectations for its active and perceived role in serving as a guardian of human rights while coordinating the checks and balances of the government. Korean government agencies and officials are now “more judicious and discreet” in their official conduct. And ordinary citizens are more conscious of their constitutional rights because they can directly petition the Constitutional Court.[2]
In fact, the Constitutional Court is recognized for having successfully institutionalized a constitutional adjudication system in South Korea. The international constitutional law scholar Tom Ginsburg has called the Court “a major leader” in Asia because it embraces global constitutional norms and is “a model for constitutional court” internationally.[3]
Expert Viewpoints
This I-CONnect symposium features three experts who will explore the phenomenon of the rise of the Constitutional Court of Korea as a powerhouse defender of constitutionalism: Ilwon Kang, former justice of the Constitutional Court; Tom Ginsburg, professor at the University of Chicago Law School; and attorney Yoomin Won, former research officer at the Court.
Former Justice Kang, who served on the Constitutional Court from 2012 to 2018, was the rapporteur justice at the impeachment trial of President Park Geun-hye in 2017. He also participated in the Unified Progressive Party case in 2014. Kang, a member of the Venice Commission, contributed “The Constitutional Globalization in Korea” to Global Constitutionalism and Multi-Layered Protection of Human Rights (2016). His symposium essay, “The Constitutional Court’s Role in South Korea’s Democratization,” contextualizes the Court’s emergence as a sociopolitical stabilizer in the never-ending vortex of Korea’s often-divisive politics. Kang’s article offers an inside look at the Court’s impact on South Korea’s transition to a democracy through the Court’s bold and innovative approach in striking down a number of undemocratic laws.
Professor Ginsburg, an eminent comparative constitutional law scholar, is the author of Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003),one of his critically acclaimed books. The book’s Korea chapter, Rule by Law or Rule of Law?: The Constitutional Court of Korea,” is a detailed, perspicacious analysis of what contributed to the Court’s success in its first 15 years. More recently, he has co-edited Comparative Constitutional Law in Asia (2014). In “The South Korean Constitutional Court in Comparative Perspective” for this symposium, Ginsburg examines the Korean court as a “Third Wave” court that he considers one of “the most successful.” His three-prong analysis is illuminating in that it cogently explains what has made the Constitutional Court a success story for constitutional law comparatists.
Attorney Won, currently a JSD candidate at Stanford Law School, worked as a research clerk at the Constitutional Court from 2011 to 2015. In 2018, she published a major article, titled “The Role of International Human Rights Law in South Korean Constitutional Court Practice: An Empirical Study of Decisions from 1988 to 2015,” in the International Journal of Constitutional Law. Her research areas include international human rights law and constitutional law. In her symposium essay, “The Constitutional Court of Korea’s Jurisprudence: Influence of International Human Rights Law,” attorney Won takes a thoughtful look at the Court’s use of international law on human rights in ruling on Korean statutes. Her analysis, which is anchored to each of the Court’s six presidencies, identifies the Court’s trend in referencing international law and examines the impact (or lack thereof) of such law on the Court rulings.
Thoughts Toward the Future
On this occasion of the 30th anniversary of the Constitutional Court of Korea, it seems appropriate to reflect upon the Court’s future direction. In 30 years, the Constitutional Court has become a significant institution that has affirmed the place of South Korea among the world’s most respected democracies. But the Court has not become complacent, which is evident from its recent activity—in particular, upholding the impeachment of President Park Geun-hye. Clearly, South Korean democracy is firmly entrenched and will continue to gain the admiration of those inside as well as outside of South Korea as the Constitutional Court increasingly embraces international human rights law in its decisions.
Suggested Citation: Kyu Ho Youm, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Introduction: Celebrating the 30th Anniversary of the Constitutional Court of Korea, Int’l J. Const. L. Blog, Mar. 5, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—introduction:-celebrating-the-30th-anniversary-of-the-constitutional-court-of-korea
[1] James M. West & Edward J. Baker, “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence,” 1 Harv. Hum. Rts. Y.B. 135, 165 (1988). For an informative, up-to-date discussion of the Constitutional Court’s organization and jurisdiction, see Secretariat for Research and Development (SRD) of the Association of Association Constitutional Courts (AACC), Jurisdictions and Organizations of AACC Members 115-35 (2018), available here: http://www.aaccsrd.org/en/pubsDtl.do#1.
[2] Dae-Kyu Yoon, Law and Democracy in South Korea: Democratic Development Since 1987, at 167 (2010).
[3] Tom Ginsburg, “Toward an International Human Rights Court for Asia?” in Global Constitutionalism and Multi-Layered Protection of Human Rights 507 (SNU Asia–Pacific Law Institute ed., 2016).
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