This book examines the role that the Constitutional Court of Korea has performed since the transition from an authoritarian to a democratic regime in 1987. Reflecting the nature of the transition as well as the political divides on the Korean peninsula, the new constitutional order has retained repressive elements and institutions from the authoritarian era. The court, according to the author, has worked to adapt these elements and institutions to the current era, while carefully asserting its role to limit the abuse of power and protect the rights of citizens. There is an “ambivalence” in which the court is simultaneously assertive and deferential in this role, and its decisions have led to both liberal and illiberal outcomes, reflecting the nature of the constitutional order.
Chapters 1–3 provide the background for constitutional politics in Korea. In Chapter 1, the author introduces the paradoxical role that the Constitutional Court of Korea has performed—namely “curbing existing security instruments while confirming their contemporary relevance” and “dismantling authoritarian remains while consolidating the non-inclusiveness of South Korean democracy” (p. 14).
Chapter 2 traces the origins of this role to the nature of the transition to democracy in 1987. The author finds that the transition was conducted through elite-controlled, exclusive reform talks among established political parties, to the exclusion of civil society and minjung forces seeking further democratization. The Constitutional Court was then created as a product of compromise between the established parties, in which the executive, the judiciary, and the parliament would each nominate three judges.
While the court was thus not particularly designed to be activist, human rights lawyers representing those who have been marginalized from mainstream politics have brought forth a continuous stream of constitutional challenges, especially regarding the use of the National Security Act to prosecute those deemed dangerous to the state.
Chapters 4 through 7 each offer a case-study of the paradoxical role that the Constitutional Court has performed.
Chapter 4 focuses on how the court has dealt with the National Security Act—a repressive instrument carried over from the authoritarian era. Article 7, section 1 of the Act provides for the imprisonment of “any person who praises, encourages, sympathizes with… an antistate organization” and section 5 criminalizes the “production, importation, duplication, possession, transportation, distribution” of expressive articles that support such activities.
The Constitutional Court, while expressing concern for the abuse of Article 7 if read literally, nonetheless chose to uphold its constitutionality. The court narrowly construed the provision to be applicable only to expressive activities that pose a “clear threat to the integrity and the security of the nation and the basic order of free democracy” (p. 75). In doing so, it imposed limits on the usage of these provisions while simultaneously giving them a new meaning, namely as an instrument to sustain “the basic order of free democracy,” including such matters as the “economic order based on private property and market economy” (p. 76).
Chapter 5 deals with how the court has upheld the political exclusion of residents of the North, as well as ethnic Koreans in Japan who have had contacts with North-leaning ideas and people, which the government had targeted for “ideological conversion.” Such policy was replaced with a “pledge to abide by the law” in 1998, but political dissenters have continued to be imprisoned for refusing to submit this pledge. The majority of the court has upheld the constitutionality of this system by holding that it merely reconfirmed the duty to abide by the law and did not touch upon matters of conscience (p. 113).
Chapter 6 examines the court’s jurisprudence surrounding the rights of criminal defendants in national security cases. While the court seems to have taken an active role in expanding the rights of such defendants, the author finds that the reasoning the court has applied in such cases has tended to be “tailored” to the case at hand, thereby limiting its applicability in other cases (p. 139).
Finally, Chapter 7 deals with cases surrounding the national defence framework of Korea. The court has largely abstained from decision-making in this area, whether in cases challenging the dispatch of troops to Iraq, relocation of a US base, or joint military exercise with the US, though the rationale for doing so has varied. Cases challenging the compulsory conscription system have also been unsuccessful. For example, the court has upheld the punishment of conscientious objectors, such as Jehovah’s Witnesses. Even the majority opinion noted that this potentially imposed a sacrifice of freedom of conscience and demanded that the legislature consider the issue, to no avail.
The image of constitutional courts, at least from a Western perspective, is that of a rights-protective institution that serves as a check against abuses of power by the majority. This role has been considered to be coextensive with the idea of constitutionalism itself, in which Constitutions are made to define and limit government power and to protect the rights of the people. This study meticulously puts forth a different image of constitutional courts—one in which constitutionalism and the effort of the court to defend it could paradoxically result in “illiberal outcomes,” depending on the nature of the Constitution itself. It shows that the role of constitutional courts are confined by a nation’s political history, and that its jurisprudence is governed by strategic and institutional concerns in this political context.
This reviewer notices an overlap between the Korean Constitutional Court’s jurisprudence and the Japanese Supreme Court’s jurisprudence in the area of national security. Both countries have a national defence framework that has its origins in the Cold War and their alliances with the US, and have been faced with constitutional challenges regarding the extent of military co-operation with the US. Courts in both countries have found reasons not to rule on those challenges, despite occasional dissent. How the courts in both countries have acted in such politically sensitive cases, and the factors that differentiate them, would provide the subject for an interesting comparative study in judicial politics.
