Editors' Introduction: South Korea at a Crossroads: Reflecting on Constitutional Change

Adem Abebe, Erika Arban & Tom Gerald Daly

Co-hosted Symposium

This Symposium is co-hosted by ConstitutionNet, which is a leading project of International IDEA created to support legislators, constitutional lawyers and other constitutional practitioners in finding useful and relevant information, sharing knowledge and building a community of best practice. Selected posts from the Symposium will also be published on ConstitutionNet. 

Introduction

The Republic of Korea (‘South Korea’) finds itself at a crossroads in 2018. 30 years after the transition to democratic rule and adoption of a democratic Constitution in 1987 the state has much to celebrate, including an embedded tradition of peaceful electoral transitions, independent courts, a vibrant civil society, and economic success. Yet, spurred by government scandals and deficiencies in the political system, there has been growing impetus for reform and renewal. The recent, unsuccessful, effort by President Moon Jae-in to reform the Constitution sought to enhance basic rights; to consolidate local autonomy, introduce new checks and balances among state powers, and reinforce public welfare, in order to tackle a perceived crisis in the representative democratic system and growing social and economic inequality. At the same time, the state’s relationship with the Democratic People's Republic of Korea (‘North Korea’) has entered a tentative renewal of rapprochement, possibly further adding to a complex multi-strand constitutional transformation. 

Aims of the Symposium

This Symposium is being organised in advance of the World Congress of the International Association of Constitutional Law (IACL), hosted in Seoul, which provides an opportune moment to reflect on constitutional development, design and change in South Korea. As well as providing a window onto South Korea, its constitutional development, and the recent constitutional reform process, the Symposium will focus on the successes, design and implementation of the 1987 Constitution, and the perceived need for significant constitutional amendment to meet today’s challenges.

More broadly, the Symposium aims to contribute to debates on constitutional change within South Korea itself, and to encourage reflection on what lessons the South Korean context can provide for constitution-builders in other countries in Asia, as well as other world regions. 

Contributors

• Wednesday 13 June: Adem ABEBE, Erika ARBAN and Tom Gerald DALY, Joint Editorial: ‘South Korea at a Crossroads: Reflecting on Constitutional Change’
• Friday 15 June: Jong-cheol KIM: ‘Presidential Proposal for Constitutional Revision in South Korea: Unlikely to be Passed but Significant Step Forward’ [cross-post from ConstitutionNet]
• Monday 18 June: Fabian DUESSEL: ‘A Successful Constitutional Design: The Constitutional Court at 30’    
• Wednesday 20 June: Patricia GOEDDE: ‘Breathing Life into the 1987 Constitution: The Role of Public Interest Lawyers’
• Friday 22 June: Chaihark HAHM:  ‘Reflections on South Korea’s Constitutional Future’ 
• Monday 25 June: Cheryl SAUNDERS, ‘Comparative Approaches to Constitutional Change in Asia’ 

To aid readers in understanding the South Korean constitutional context, at the end of this editorial we have provided some background information, which is an abridged and slightly altered version of a summary provided on the ConstitutionNet website. 

We hope you enjoy the Symposium, and we welcome feedback on its contents.

Erika Arban and Tom Daly (IACL Blog) and Adem Abebe (ConstitutionNet)

Constitutional History of Korea

1948-1987: Occupation, Independence, and Authoritarian Rule

In the aftermath of WWI and of the Japanese occupation, the Korean peninsula was occupied by the Soviet troops in the North and by US troops south of the 38th parallel. The first Constitution of the Republic of Korea was adopted in 1948. Two years later, the South declared its independence from the North, triggering the invasion of North Korea and the subsequent Korean War, which lasted until 1953. Following these crucial events, the Constitution was amended several times and six different republics were established before the implementation of the current democratic constitution in October 1987.

The 1948 Constitution established a system where the President was elected by the National Assembly. The first constitutional amendment of 1952 introduced a directly elected president and a bicameral parliament. In 1960, the constitution was amended again to introduce a parliamentary system of government, thus beginning the Second Republic. In 1962, another constitutional amendment gave rise to the Third Republic: however, the installed government was incapable of asserting its authority and this led to a military coup in December 1962, with the military junta dissolving the parliament and establishing a committee to draft a new constitution, which retained a parliamentary system. The constitution was amended for the sixth time in 1969 in order to authorize a third term for President Park Chung-Lee. The Fourth Republic was launched soon after President Park invoked martial law in anticipation of a projected North-South Korean dialogue in the end of 1972. The amended constitution was designed to expedite reunification and provided for a president vested with nearly unlimited powers overriding the other branches of government and free to serve as many terms as the National Congress for Reunification decided. In the aftermath of the assassination of the president, the Fifth Republic was established after another constitutional amendment was approved in 1980: while this amendment removed many undesirable provisions introduced in the preceding years, it still left a vast authority in the hands of the President. 

1987: A New Democratic Constitution

The present democratic constitution of 1987 was the result of further amendments following the desire and aspiration of Korean people for more democracy. Promulgated in February 1988, this constitutional change was achieved through government-opposition collaboration for the first time in Korean constitutional history. Pivotal in this amendment was the election of the president by direct popular vote, restored after several years of indirect vote. Furthermore, the power of the legislature was strengthened and individual rights were further protected. The 1987 constitution provides for an executive branch headed by the president and an appointed prime minister, a unicameral legislature (the National Assembly) and a judiciary consisting of a Constitutional Court, a Supreme Court and lower courts. 

The unicameral National Assembly, which currently has 300 seats, is vested with legislative powers. Three-quarters of its members are elected from single-member districts for a term of four years, while the remaining members are appointed through a proportional allocation of seats to political parties. 

The president, who is the head of state and government, is elected by direct popular election once every five years through the first-past-the-post plurality system and cannot serve more than one term. The president cannot dissolve the National Assembly and is also prohibited from issuing emergency decrees covering the whole range of state affairs. However, the president can still proclaim martial law and grant amnesty.  Upon the proclamation of martial law, the president must notify the National Assembly without delay. If the Assembly requests the lifting of martial law with an absolute majority of its total membership, the president must comply. The president appoints a cabinet consisting of no more than thirty posts for the State Council, among them a prime minister and a deputy prime minister. The appointment of the prime minister requires the consent of the National Assembly. The president and the central bureaucracy continue to be the dominant forces in South Korean policymaking through the presidential authority to table bills before the legislature, which outnumber the number of bills proposed by the legislature itself, and through decrees. The National Assembly can propose to the president the dismissal of the prime minister and state ministers. The recommendation is not binding.

Finally, the judicial branch consists of the Constitutional Court, the Supreme Court, and lower courts, such as the Family Court and the District Courts. The president appoints the Chief Justice and other justices of the Supreme Court upon the recommendation of the Chief Justice and with the consent of the National Assembly. Judges other than the Supreme Court justices are appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices. There is no jury system. The Constitutional Court was formally established in September 1988. Based on the European model, it is a specialized court that determines (1) the constitutionality of laws upon the referral of regular courts; (2) impeachment; (3) the dissolution of a political party up on the request of the government; (4) competence disputes between central government agencies, between central government agencies and local governments, and between local governments; and (5) constitutional complaints as prescribed by law. Notably, decisions of the Court on the unconstitutionality of a law, impeachment, dissolution of a political party, and constitutional complaints require the concurrence of at least six of the nine judges. The nine members of the Constitutional Court are appointed for a renewable six-year term by the president (three members), the National Assembly (three members), and the Chief Justice (three members). The head of the Court is appointed by the president with the consent of the National Assembly.

Amendment of the 1987 Constitution

The constitution has not been amended since its enactment in 1987, although there is growing public demand for a constitutional revision. In particular, there is the need to find a better balance for the executive power under a hierarchical political tradition. Over the past couple of years, the scandal that ensued the removal of President Park from office elicited a debate on the need to limit presidential powers: in fact, presidents have the possibility to exercise concentrated and personalized presidential powers, thus undermining democratic political institutions. In addition to proposing the reduction of presidential powers and the parallel enhancement of the powers of the Parliament and of the Prime Minister, support also exist for the removal of the prohibition on reelection. Furthermore, the current court structure is considered too overbearing and authoritative, and would thus need to be changed. Additional reform proposals might include the entrenchment of certain rights that exist in theory but that have never been incorporated into case law (eg the right to live safely, the rights to information, consumer rights, asylum rights, and right to conscientious objection). Finally, proposals exist to decentralize powers and include mechanisms for direct democracy.

Timeline

1945                End of Japanese occupation. Soviet troops occupy the area north of the 38th parallel, while US troops occupy the south

1948                Republic of Korea proclaimed

1950                South declares independence, sparking North Korean invasion

1953                Armistice ends Korean War, which cost two million lives

1950s              South sustained by crucial US military, economic and political support

1960                President Syngman Ree steps down after student protests against electoral fraud. New constitution forms Second Republic, but political freedom remains limited

1961                Military coup puts General Park Chung-hee in power

1963                General Park restores some political freedom and proclaims Third Republic. Major programme of industrial development begins

1972                Martial law. Park increases his powers with constitutional changes

1979                Park assassinated. General Chun Doo-hwan seizes power the following year

1980                Martial law declared after student demonstrations. In the city of Gwangju, army kills at least 200 people. Fifth Republic and new constitution

1981                Chun indirectly elected to a seven-year term. Martial law ends, but government continues to have strong powers to prevent dissent

1986                Constitution is changed to allow direct election of the president

1987                President Chun pushed out of office by student unrest and international pressure in the build-up to the Sixth Constitution. General Roh Tae-woo succeeds President Chun, grants greater degree of political liberalisation and launches anti-corruption drive

1988                First free parliamentary elections. Olympic games in Seoul

1993                President Roh succeeded by Kim Young Sam, a former opponent of the regime and the first freely-elected civilian president

2002                December - Roh Moo-hyun, from governing Millennium Democratic Party, wins closely-fought presidential elections

2007                December - Conservative Lee Myung-bak wins landslide victory in presidential election

2012                July - South Korea begins move of most ministries to ‘mini capital’ at Sejong City, 120km south of Seoul. Key ministries will remain in Seoul

2012                December - South Korea elects its first female president, Park Geun-hye, of the conservative Saenuri party. She takes office in February

2014                April - Sewol ferry sinks off west coast, killing at least 281 people, mainly high-school students

2014                December - Constitutional Court bans left-wing Unified Progressive Party, accused of being pro-North Korean

2015                November-December - Mass protests in Seoul against government's economic policy and insistence on schools' using state-approved history books

2016                October - President Park Geun-Hye is embroiled in a political crisis over revelations that she allowed a personal friend, with no government position, to meddle in affairs of state.

Dec 9 - Parliament votes to impeach Park. She is stripped of powers while awaiting a court decision on the vote. Prime Minister Hwang Kyo-ahn becomes acting president.

2017                March 10 - Constitutional Court upholds parliament’s vote to impeach Park, removing her from office.

May 10 - The center-left candidate Moon Jae-in is elected president.