The Constitutional Framework

The Constitutional Framework

Despite centuries of authoritarian and autocratic rule, reform thinkers in nineteenth-century Korea had debated the subject of government and advocated the rule of law and eventual constitutional government as early as the 1890s. The notion of a government limited by checks and balances under a constitutional order was not entirely new to the Korean political setting in 1945. Organizations such as the Self-Strengthening Society (Chaganghoe) used translations to promote the study of numerous European constitutions and legal codes during the years just before Japan annexed Korea in 1910. During Japanese rule (1910- 45), a self-styled Korean government in exile in China drafted several charters and constitutions. Within colonial Korea, a small Protestant community conducted self-governing denominational meetings in accordance with rules of parliamentary procedure. Japanese rule in Korea, however, was itself largely exempt even from Japanese constitutional constraints. Despite Korean interest in the idea of constitutionalism, therefore, the colonial experience provided Koreans with little opportunity to experience the practice of limited government.

Since the formation of an independent South Korean republic in 1948, the term constitutionalism--as it is popularly understood in Western democracies--has become a major focus of political strife. Although the concept has been interpreted in various ways, there has been at least a nominal consensus that constitutionalism would foster, if not guarantee, a general framework for benevolent and effective government. The constitution would help protect certain individual rights and provide safeguards against the concentration of power in the hands of a dictatorial group.

There have been numerous difficulties in adapting constitutionalism to South Korea, not the least of these being the reluctance of incumbent leaders to step down peacefully and prepare for a transfer of power through the constitutional process. The politics of constitutional manipulation has been deadly serious, calculated to bolster or prolong the tenure of incumbent presidents or to lend an aura of legitimization to a regime brought to power by a coup. South Korea experienced its first peaceful transfer of power since independence only in 1987. In most of the leadership changes prior to 1987, the incumbents used forceful tactics--including martial law and other surreptitious parliamentary maneuvers--to change the constitution. The 1990s began with discussions of possible further changes in the fundamental law. It appeared that South Korea had yet to escape a pattern, in which both powerholders and their political rivals perceived a constitution as a tool for holding power, rather than as a framework for long-term governance, and in which each administration required one or more constitutional revisions.

The constitutional framework of the Sixth Republic, which started in 1987, was based on a constitutional bill that was passed by the National Assembly on October 12, 1987, and subsequently approved by 93 percent of the voters in a national referendum on October 28. The bill was the product of painstaking negotiation and compromise among the major political parties in the National Assembly, unlike the preceding two constitutions, which were essentially unilaterally drafted by the executive branch and then submitted to referendums under emergency measures or martial law. The 1987 Constitution became effective on February 25, 1988, when Roh Tae Woo was inaugurated as president. The new Constitution, which consisted of a preamble, 130 articles, and supplementary provisions, strengthened the power of the National Assembly and considerably reduced the power of the executive. Its adoption marked only the second time that the government and opposition parties had produced a constitutional amendment bill by consensus in South Korea's modern history--the first occasion, in 1980, was cut short by a military coup d'état--and the first time that such cooperation had been successful. The new fundamental law, the first since 1960 not intended to extend the rule of the incumbent president, provided for direct election of the president, an issue the opposition parties had campaigned for since 1985. It also eliminated or modified a number of provisions that had come under criticism since the yusin (revitalization) constitutional amendment in 1972.

The 1987 Constitution declares South Korea a democratic republic, its territory consisting of "the Korean Peninsula and its adjacent islands." Popular sovereignty is the norm of the state; all public officials are described as servants of the people; and the tenure and political impartiality of these officials are protected by the provisions of law. In language not found in earlier constitutional amendments, the Constitution states that the "Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy." In another innovation clearly aimed at the past influence of the military on politics and political succession, the Constitution stipulates that "political neutrality shall be maintained" by the armed forces.

The section on fundamental rights reflects continued evolution toward the affirmation of civil rights and due process of law. Individuals may not be punished, placed under preventive restrictions, or subjected to involuntary labor "except as provided by law and through lawful procedures." The protection of habeas corpus, restored in the 1980 constitution but rarely honored in practice in political cases under the Chun government, is further reinforced. People detained or arrested must be informed of the reason and of their right to be assisted by counsel. Family members of those arrested or detained must be informed of the fact "without delay." Prosecutors' failure to indict a criminal suspect or accused person placed under detention might entitle the person to claim compensation for wrongful arrest. Warrants must be issued by a judge "through due procedures" rather than at the mere request of prosecutors, as had often occurred, especially in political cases, in the past. Other new provisions include the right of citizens to receive aid from the state if they suffered injury or death due to the criminal acts of others; the autonomy of institutions of higher learning; and recognition of extended labor rights.

The articles on rights, like other portions of the Constitution, originated during a process of political compromise that deferred a number of complex or controversial issues until a later date. A number of new social welfare provisions were left to subsequent legislation. These measures included aspirations to protect working women from unjust discrimination, state protection for citizens incapacitated by disease and old age, environmental protection measures, housing development policies, and "protection for mothers".

As in earlier constitutions, the formal provision of a right was often qualified by other constitutional provisions or by related laws. The most significant of these pre-existing laws was the National Security Act, which severely truncated rights of due process specified in the Constitution and the Code of Criminal Procedure (1954) for persons accused of a variety of political offenses.

The Constitution affirms both the right and the duty to work and requires legislation for minimum wages and standards of working conditions to "guarantee human dignity." Special protection is provided to working women and working children. Except for workers in important defense industries, workers have the right to independent association, collective bargaining, and collective action--a marked change from the 1980 constitution, which stated that collective action could be regulated by law. By 1990, however, not all of the numerous laws that restricted the exercise of labor rights had been thoroughly subjected to the scrutiny of the Constitution Court.

Chapter Nine of the Constitution, which is concerned with the economy, continues the theme of the previous constitution in committing the state to fostering economic growth and foreign trade. As was the case under the 1980 constitution, tenant farming is technically prohibited, but leasing or proxy management of farmland is recognized in the interest of increasing agricultural productivity and rational land utilization. The new Constitution permits regulations designed to "ensure the proper distribution of income" and prevent "abuse of economic power." In an implicit recognition of severe disparities in regional development in the past, the state is also charged with ensuring balanced development of all regions of the country. The government is responsible for establishing national standards and for developing technical, scientific, and human resources.

Separation of powers came from the political process as well as from the formal structure of government embodied in the Constitution. The Sixth Republic's Constitution provides greater formal balance than earlier constitutions among the three branches of government. In important substantive areas, it strengthens the legislature and the judiciary. In other areas, it sets broad policy guidelines but leaves legislation to the legislators. The resulting formal checks and balances were reinforced by the outcome of the April 1988 general elections, in which the president's party--the Democratic Justice Party--lost a working majority in the legislature for the first time since the establishment of the Republic of Korea.

The process for amending the Constitution received public attention in early 1990 when the Democratic Justice Party and two of the three major opposition parties announced plans to merge and to amend the Constitution to provide for a cabinet- responsibility system. Proposed amendments to the Constitution could be introduced by the president or by a simple majority of members of the National Assembly. A favorable vote of two-thirds of the National Assembly members is required before amendments could be placed before a national referendum. To be successful, amendments require a majority vote by at least one-half of the electorate eligible to vote in general elections. An incumbent president may not benefit from an amendment extending the term of the presidency.

http://countrystudies.us/south-korea/58.htm
http://countrystudies.us/south-korea/


Country Studies main page | South korea Country Studies main page