Constitutional Adjudication in the Republic of Korea: The Past and Future. Justice Min, Hyeong-ki Constitutional Court of the Republic of Korea

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1 Constitutional Adjudication in the Republic of Korea: The Past and Future Justice Min, Hyeong-ki Constitutional Court of the Republic of Korea Honorable Guests, Ladies and Gentlemen, I am delighted to be here today to celebrate the 20th anniversary of the Constitutional Court of Romania. At the beginning, the constitutional adjudication in Korea had been conducted by various institutions including the Supreme Court and the Constitutional Council. However, the cases began to be heard in earnest only when the Constitutional Court of Korea was established under the Constitution amended in I hope that almost a quarter-century s experience of the Constitutional Court of Korea will set a good precedent for the discussion of the agenda of this international conference, the tradition and perspectives for the constitutional adjudication. A nation's constitutional adjudication system reflects the social progress of the nation. As the society becomes more advanced and complicated, the people s evaluation of the Constitutional Court, the Court s relationship with the other government branches, and the relationship between judicial review and the principles of democracy tend to change continuously. In the early years of the constitutional adjudication by the Constitutional Court, there were plenty of statutes enacted in the past regime when the judicial review was not activated and thus those statutes were beyond the judicial control. As 1

2 almost all Korean people considered the Constitutional Court s decisions holding such law unconstitutional as the protection of the fundamental rights, they supported and agreed on the rulings of the Constitutional Court. In Korean society of early years of the Constitutional Court, compared to society today, the public agencies and institutions played a bigger role than the private ones and the civil society was more homogeneous. In those days, even in the matters concerning the fundamental freedom, we had a lot of regulation-oriented statutes emphasizing on public order. The Constitutional Court of Korea, however, has delivered its decisions of unconstitutionality of the following statutes or governmental conduct: the statute making an arrest warrant to be effective even with the court s judgment of acquittal; the statute allowing an excessive detention period; the statute permitting protective detention without judge s discretion; the statute requiring an excessive amount of deposit to an election candidate; the governmental conduct restricting an attorney's right to meet the accused; and the governmental conduct not allowing an perusal or copying of public documents. Through these unconstitutionality decisions, the Constitutional Court of Korea has ensured that the constitutional provisions of fundamental right, which had been nominal until then, are the real supreme law of the country. In addition, the Constitutional Court made decisions of unconstitutionality against the following statutes which, without a reasonable reason, discriminated in favor of the government against an individual: the statute preventing a provisional execution against the government; the statute excluding the acquisitive prescription of ordinary property of government; the statute allowing one year retroactive application of law for national tax to have priority over the other security rights. 2

3 These decisions of early years making the statutes and the exercise of governmental power unconstitutional were considered as a means to protect the people's fundamental rights from the undue exercise of governmental power. As the Constitutional Court has accumulated precedents with a wide support from the public, it has extended the area of statutes subject to the decision of unconstitutionality. The Constitutional Court has played a big role in making the social and political system of Korea more liberal and equal through the decisions of unconstitutionality of the following statutes: the statute prescribing excessive difference between the populations of election districts; the statute allowing prior censorship of films; the statute prohibiting private tutoring; and the statute following traditional family system where male descendant is more respected than female one. The Constitutional Court of Korea firmly recognized that the protection of the right and the freedom of individuals had an equal value, as well as the protection of the community interest. Meanwhile, as the income levels of Korea has greatly increased with its economic growth, the number of claims for individual rights has also increased. As a result the decisions of unconstitutionality in favor of some groups rather than the people as a whole started to appear. Most of these rulings were agreed by the people because the early decisions of the Constitutional Court were trusted by the people. One of common examples of those judgments can be the Court's holding that many tax provisions even with a justifiable legislative purpose are unconstitutional, because of the excessive delegation of legislative power to the executive branch in prescribing the statutory provisions. 3

4 The Constitutional Court also held a tax on the growth of land values void because of the unconstitutional taxation requirements and tax rate, even the Court approved the legislative intent. These judgments of the Constitutional Court have been the foundations for current constitutional interpretation and have led the legislative and executive branch to enact, interpret and enforce the law complying with the Constitution. With the ensured status, the role to correct the distorted modern history of Korea was also given to the Court. The Constitutional Court of Korea had to deal with a complicated issue of whether an effort to bring delayed justice is a violation of rule of law with respect to the limitation for the prosecution in the punishment process of a former president who seized power in a military coup. As the Court sometimes adopted the constitutional principles of well developed foreign Constitutional Courts, some critics criticized that the Constitutional Court of Korea held too ideal decisions apart from the realities of Korea. People who thought a certain decision was not in accord with their values or economic interests slowly began to voice out their objection. It could be said that this reflected the evolution and diversification of civil sector of Korea. On the other hands, as the Constitutional Court delivered some modified decisions such as decision of limited unconstitutionality and exercised its jurisdiction over certain matters with regard to the judgments of ordinary courts, the Constitutional Court and the Supreme Court expressed different views, raising the issue of allocation of power between two equally highest Courts of Korea. It was a kind of natural results for Koreans to discuss and confirm the scope of jurisdictional power granted to the newly established Constitutional Courts by the Constitution. 4

5 In a country operating in accordance with the Constitution, serious consideration on the separation of powers was an indispensable step to be called for. The next step was a more fundamental discussion on the relationship between constitutional adjudication and democracy. People in Korea started to recognize the relationship between the rulings delivered by the Constitutional Court and the advantages or disadvantages on a certain group. Whilst the surveys have shown for years that the Constitutional Court has been the most trusted public institution nationwide, people in the academy and the press began to make commentary on certain decisions made by the Court. People's comments on the Court's decisions on the statutes regulating various interests concerned were inevitably different from their unconditional support on the Court's early decisions against unjust laws of past government. Those comments or criticisms from the public drove the Court to commit to further efforts to have a meticulous and careful reasoning in proving constitutional and legal bases in order to make its decisions more persuasive. Contrary to some early decisions which declared the whole statute rather than a specific provision unconstitutional, the Constitutional Court gradually limited the statutory provisions to be reviewed. Advanced and complicated society required the Court to limit the statute subject to its review and respect the legislative. From the years of its experience, the Court tried to research deeply the international sources of constitutional law and international laws on human rights, and adopted them. As the Court respected for the other constitutional institution, the numbers of the Constitutional Courts' decisions of 'limited constitutionality' or 'limited unconstitutionality', which had been disagreed by the Supreme Court, have declined. 5

6 As part of its respect for the legislative s discretion, the Court has increased the numbers of decisions of 'non-conformity to the constitution' requiring the legislature to make an amendment of the statutory provision at issue without the Court's immediate invalidating of that provision. Meanwhile, as social conflicts among various interest groups have not been solved well politically, political matters have been filed with the Constitutional Court and tended to rely on the rulings of the Court, showing some symptoms of the so called judicialization of politics. A notable example would be the case of impeachment of the president of Korea. The unprecedented impeachment complaint made the suspension of conduct of presidential duties, and brought the Court to the attention of the public. However, at the same time, the criticism on the Constitutional Court has increased from the public politically split down. The conflicts between the Constitutional Court and the legislative are also magnified and materialized, either when the Court held unconstitutional against the statutory provisions for the relocation of the administrative capital, the control over the press and the increase of real property- tax, which were the major pledges of ruling party, or when the Court upheld National Security Act constitutional, which the ruling party wanted to abolish. Whenever the Constitutional Court delivered a judgment, the groups of people agreeing or disagreeing began to be clearly divided and the conflict with the legislative was also brought to light. The issues of the relationship between the constitutional adjudication and democracy, the bases of legitimacy of constitutional adjudication and the desirable composition of the Justices were required to be publicly discussed. Through fierce debates, the legislations were passed for the remedial measures in order to make the victims of Japanese occupation, the Korean War and the dictatorship to be compensated for their loss and rehabilitated their disgrace. 6

7 Even after then, the Constitutional Court was selected as the place of public opinion in order to correct the distorted modern history of Korea. With regard to these issues, the Constitutional Court made decisions on the constitutional complaint of statutes for reputation recovery, omission of the legislation for compensation, and the negative prescription of the right to be compensated for the torts of the government. The Constitutional Court upheld the law confiscating the properties gained through the pro-japanese collaboration with the Japanese colonial government. The Court also ruled that Korean government has a duty to take measures such as diplomatic efforts to protect its citizens in the case of women forced into sexual slavery by the Japanese military during World War II. Although the Constitutional Court could not deliver decisions more actively for the other matters of the past due to the inherent limitation of a judicial branch, it was a good chance for Korean society to deal with controversial debates and to hear different opinions. After then, ordinary courts made some active interpretation of the negative prescription for the tort damages claims and the legislature and the executive committees have also continued their efforts to compensate the victims of past history. What these were all about, I believe, is that Korean society became more mature and generous. Unlike the early years of the Constitutional Court, private sectors rather than public sectors became to play a leading role in Korean society. As the society has changed into more autonomous one and the values of individuals has become various, the Court extends the protection for the freedom of the individuals including the freedom of expression, privacy rights and rights of selfdetermination on personal information. 7

8 The Constitutional Court ruled an election statute, regulating election campaign through the internet, unconstitutional for infringing the freedom of expression. The Court also ruled a criminal provision unconstitutional when it punished a man who made a pre-marital sex with a woman with a lie to marry her. Now the Court recognizes and respects values of individuals not to mention the matters of ruling system and social structure. The Court, of course, has recognized the community values in its many decisions although they have not been in the headlines. In this regard, I predict that the Court s experience in dealing with discussions on various political and social issues and criticisms will serve as a foundation for the mature operation of the Court. It is inevitable that the constitutional adjudication conflicts with the principle of democracy because it invalidates the statute enacted by majority vote of the National Assembly. In order to resolve this problem, I believe that the Justices in their constitutional adjudication may have options of either applying the neutral legal principle or following certain political opinion by actively reflecting the principle of democracy in appointing the Justices of the Constitutional Court. The determination on which option should be taken shall be made by each country following public consensus. In any case, however, the Constitutional Court will gain public trust only when it draws more persuasive rulings based on a well-founded reasoning. I think every institution taking charge of constitutional adjudication has developed the principle of the Constitution and advanced the systems for better constitutional adjudication, based on its own experience of history and social changes. 8

9 Now the Constitutional Court of Korea appears to have set a stable foundation to build rule of law in the nation and have reached the stage where more elaborated interpretation and application of the constitutional doctrines are required. No advancement of systems for better constitutional adjudication, however, shall make the institutions for constitutional adjudication bureaucratized or closedminded. We shall always make sure that the Court adheres to the universal values and views with respect to the norm of democracy and the human rights. As an institution for social integration, the Constitutional Court of Korea is going to faithfully carry out its duties of resolving the problems and conflicts caused by social transitions which require discussion on the unification of South and North Korea, and better protection of social rights regarding welfare system and environmental issues. In its ongoing effort to bring an advancement of country, the Constitutional Court of Korea also tries to be an institution continuously trusted by the public. Also, I expect that the Constitutional Court of Korea will be able to contribute to bring the promotion of universal human rights through international cooperation with other constitutional courts, and be helpful for the promotion of such institutions of the other Asian countries. Once again, congratulations on the 20th anniversary of the Constitutional Court of Romania. Thank You. 9