The current constitution of the Republic of Korea, a product of the historic democratic transition in 1987, has been in force for over three decades. By Korean standards, this is no small feat given that the average lifespan of the nine previous constitutions, counting from the Founding Constitution of 1948, has been a little over four years. The longest was eight years. Perhaps more important than the longevity of the constitutional text may be the fact the constitution is no longer a nominal or decorative document but a normative one that is enforced and “lived” by both the political rulers and citizens.
This remarkable change may be attributable to the fact that the 1987 Constitution was adopted through a relatively inclusive process which enabled the input of all major opposition parties at the time. Given that most of the previous constitutions had been made by authoritarian leaders to legitimize their own rule, this endowed the constitution with what Jon Elster calls “upstream legitimacy.” Aside from its provenance, of course, its content was considered a vast improvement over its predecessors. It provided for direct popular election of the president and significantly reduced the powers of that office, increased the legislature’s oversight of the government, and provided better protection for individual rights, which could be enforced through a newly established constitutional court.
Needless to say, the constitution’s performance after its adoption has also been crucial in its being perceived as legitimate by the general public. It has overseen three peaceful transfers of power, two presidential impeachments, numerous legal and political measures for redressing injustice committed under past authoritarian regimes, and the flourishing of a vibrant civil society. It has enabled Korea’s development into a stable constitutional democracy with the world’s twelfth largest economy.
Yet, all is not well with South Korea’s constitutional order. We might call it a “crisis of success.” With further consolidation of democracy, what used to be regarded as achievement or improvement is increasingly being regarded with dissatisfaction, if not disdain. The opposition parties’ participation in the drafting of the 1987 Constitution is now seen as evidence that the process was “elitist” and excluded the voices of “civil society.” Never mind that there was not much of a civil society back then—the fact that the drafting was led by politicians and legal scholars is now grounds for arguing that “the people” have yet to become masters of the constitution.
As for the content of the document, many are unhappy that it allows for an “imperial presidency” and does not include a more expansive bill of rights. The single-term presidency, mandated by the current constitution, used to be seen as critical for the task of democratization, for it ensured the prevention of a permanent one-person rule. Now, the same system that disallows the president from seeking re-election is being criticized for enabling the president to be unresponsive to the people’s will. As for individual rights, the absence of express provisions on certain rights which have recently received popular attention is seen as a critical defect. Some argue, for example, that the right to life or the right to live in health and security should be specified in the text—especially after a series of large-scale tragic accidents that claimed the lives of many citizens.
On the performance side, attention is naturally focused on the role of the constitutional court and its track record. Included in the 1987 Constitution almost as an afterthought, the court has emerged as the enforcer of the constitution and one the most trusted public institutions to which citizens turn to have their rights vindicated. Yet, it now faces more scrutiny and criticism. Some charge that it is only acting in the interest of whoever is in power or that it is not being as solicitous as it could be toward the underprivileged members of the society. Others point to its so-called “democratic deficit.”
Dissatisfaction with the current constitution seemed to reach a new height following the impeachment and dismissal of former president Park Geun-hye. In the presidential election that followed, all of the five major candidates pledged that he or she would revise the constitution if elected. Current president Moon Jae-in attempted to follow through with his pledge by actually introducing a bill earlier this year for constitutional revision, for the very first time since 1987. Although the bill never reached the floor of the National Assembly for various political and technical reasons, it appears that constitutional reform will continue to be on the nation’s agenda for some time to come.
As Korea faces the prospect of constitutional revision, some reflection may be in order regarding the role of the constitution and its relation to the “the people.” First is that the people of contemporary Korea is to a great extent the product or reflection of the remarkable constitutional development over the last thirty years. We would not be where we are—indeed, we would not be who we are—today without the intense and innumerable effort that went into implementing the 1987 Constitution. This does not mean merely that Korean citizens are beneficiaries of that constitution. It means that democratic people of modern Korea are in a sense “constituted” by the constitutional debates and struggles of the past three decades. The views and goals as well as the interests and desires that we hold have been significantly shaped and structured by our constitutional order. It would be a mistake, therefore, to think that the will of the Korean people can somehow be identified outside the constitutional order, which might then be embodied in a new constitution.
To be sure, if it is the case that some citizens were consistently shortchanged during the past three decades and that this can be remedied by changing the constitution, we should by all means consider revising it. And this leads to the second point, which has to do with the role of a constitution in a democratic polity. The constitution is not, and should not become, a grab bag into which we throw everything that might address any and all forms of grievances or the latest fashion in rights-talk. It is utter folly, for example, to think that disasters such as the terrible ferry-sinking incident could have been prevented had there been a constitutional provision on right to life. Constitutional reform should be in the direction of seeking a better distribution of power and an enduring framework for dealing with unforeseen problems and conflicts that may arise as time goes by.
Besides, even without clear textual basis, many unenumerated rights have been recognized through the constitutional court’s decisions. Of course, there is much to be desired regarding the court’s jurisprudence. Some say that this is because the court is out of touch with the sentiments of ordinary people. Yet, it would be a mistake for the court to attempt to track the wishes and desires of “the people.” This brings us to the last point—that constitutionalism is not a majoritarian enterprise. The whole point of having a constitution is to prevent the tyranny of the majority cloaked in the name of “the people.” This means that the court’s role and legitimacy depends on the power and persuasiveness of its legal reasoning rather than its ability to accurately mirror the sentiments of the average citizen or to provide popular political commentary. Korean citizens are now mature and critical enough to discern a badly reasoned decision, even when they agree with the result. If and when the constitution is revised, it will be for the purpose of upgrading the practice of Korean constitutionalism. It is hoped that the constitutional court will be up to that task.
Chaihark Hahm is a Professor at Yonsei Law School.