THE ESTABLISHMENT OF THE CONSTITUTIONAL ADJUDICATION SYSTEM AND ITS DEVELOPMENT IN KOREA
1. Background to the Creation of a European-Style Constitutional Adjudication System
The People’s Uprising of June 1987 and the June 29 Declaration paved the way for the ninth constitutional revision, the thrust of which is the institutionÂalization of constitutionalism by adopting direct presidential election, curtailÂing the president’s power, and the establishment of the Constitutional Court.
The Korean people’s struggle for the restoration of constitutional democracy before 1987 tactically focused on the democratic election of the president, who used to have immense constitutional power but was elected by an indirect electoral college system that has been mocked as a â€?gymnasium election.’ Therefore, the first aim of the June 1987 Uprising was the establishment of direct presidential elections, which then-President Chun Doo-whan’s authoriÂtarian government, its own political power stemming from a 1980 military coup, was reluctant to accept. Actually, the general election on 12 February 1985 expressly represented the Korean people’s desire for the restoration of constitutional democracy challenging authoritarian regimes. This election made the New Korea Democratic Party, which had been organized just before the election by the then political dissidents Kim Young-sam and Kim Dae- jung, the main Opposition party. Beginning with that election, Chun’s governÂment had to face strong popular demand for the revision of presidential election law that called for a reform of the indirect electoral college system into a direct voting system. Chun’s last resistance to that demand, namely his 13 April 1987 Declaration that the next presidential election would take place by the indirect system, ignited popular uprisings that were supported by almost all parts of the country. Surrendering to the people’s demand, the ruling party presidential candidate Roh Tae-woo dramatically accepted the revision of the Constitution on 29 June 1987.The new Constitution was drafted by the common initiative of the ruling and opposition parties on 12 October 1987 and finally came into effect via referendum on 27 October 1987. The resulting Roh Tae-woo government, the first government under the new Constitution, put into practice the constituÂtional democratic ideas represented in the constitution by establishing the Constitutional Court and amending controversial laws enacted in former authoritarian regimes to oppress the opposition and the governed.
As a matter of fact, it is true that debates among politicians about the new constitution after the June 1987 Uprising focused on forms of government with relatively less attention paid to the new constitutional adjudication system. However, the Korean people, who had seriously suffered from arbiÂtrary abuse of power during the prior periods of authoritarian rule, strongly demanded a new substantive device for the protection of human rights. Such sincere public demands resulted in the creation of a European-style constituÂtional adjudication system, much as the European countries who had previÂously suffered from totalitarian autocracy did after the Second World War.
2. Performance of the Constitutional Court since 1988
The 1987 Constitution was not the first attempt to adopt a constitutional adjuÂdication system in Korean constitutional history. However, due to not only an oppressive political environment but also to institutional restraints, the previÂous constitutional adjudication bodies[317] were anything but successful and were derided as mere rubber stamp institutions for the military dictatorship or as institutions existing only nominally on paper (Yang 1998, p.161). Institutionally, the Constitutional Commission (or occasionally the Supreme Court) in charge of constitutional adjudication under previous constitutions did not have authority equivalent to its constitutional importance as the final arbiter of the constitution.
In particular, since the Supreme Court’s decision striking down the State Compensation Act in the Third Republic (1962-1971), which caused a political dispute between the Judiciary and the President, politÂical power tended to view the system of constitutional review as an inroad to the efficient execution of state policies. Therefore, in the Fourth Republic, called the Yusin period (1972-1979), the Constitutional Commission took over the authority of constitutional adjudication from the Supreme Court but was not free from the president’s political influence and did nothing in relation to its main function, i.e. constitutional review. This situation continued under the 1980 Constitution, which itself expressly excluded laws enacted by the Special Committee for National Security that had unconstitutionally taken over legislative functions from the National Assembly regarding the Constitutional Commission’s jurisdiction over the review of laws’ constituÂtionality. Furthermore, the Supreme Court, which was hesitant to refer cases to other institutions due in part to institutional egoism, had the power of prior review of the constitutionality of statutes. The agonizing situation was verified by statistics that illustrated that no case was overturned by the Constitutional Commission during the 15 years between 1972 and 1987. This was precisely the reason why there was widespread and deep skepticism about the success of this new institution and uncertainty about its proper functioning when the new Constitutional Court of Korea was established in the wake of the Korean people’s victory over President Chun Doo-whan’s iron-fisted rule in 1987.However, with the people’s strong will for further democratization and their growing awareness of constitutional rights, the court has successfully overÂcome this early skepticism by taking an activist role in wielding its powers of constitutional review and hearing constitutional complaints.[318] Indeed, since there were a great number of laws passed in haste and for unjustifiable purposes, as well as many unreasonable governmental practices under the authoritarian regimes, the early court faced little problem in striking them down and thus establishing the image of the protector of the people’s fundaÂmental constitutional rights.
As of 31 January 2009, in the 20 years after its establishment, the court has invalidated or partially repudiated legislative Acts in 516 cases, of which 189 cases were referred by the ordinary courts for rulings on the constitutionality of laws and 327 cases were heard in the form of constitutional complaints.[319] Given that the number of cases the court disposed of in the form of norms control or constitutional review[320] amounts to 2,178 cases, the proportion of the judgments resulting in unconstitutionality (unconditional or conditional), is relatively high. Although a high rate of unconstitutionality decisions is not always desirable, it would be safe to say that as far as the protection of human rights is concerned, the statistics show the active performance of the court in their function as opposed to its predecessors’ dormancy. Now most Koreans know at least roughly what the constitutional adjudication system means to their lives and which institution they have recourse to when their human rights are infringed.
III.