The Rule of Law in South Korea

The Rule of Law in South Korea

by Jongryn Mo, David W. Brady
     
 

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Expert contributors examine the challenges of fully implementing the rule of law in South Korea's fledgling democracy and market economy. The expert contributors detail the obstacles that must be overcome, such as corruption in politics and corporate governance and a deep-rooted cultural indifference to the rights of the individual, and offer suggestions on what

Overview

Expert contributors examine the challenges of fully implementing the rule of law in South Korea's fledgling democracy and market economy. The expert contributors detail the obstacles that must be overcome, such as corruption in politics and corporate governance and a deep-rooted cultural indifference to the rights of the individual, and offer suggestions on what can—and what should not—be done.

Product Details

ISBN-13:
9780817948924
Publisher:
Hoover Institution Press
Publication date:
12/01/2010
Series:
HOOVER INST PRESS PUBLICATION Series
Edition description:
First Edition, 1st Edition
Pages:
180
Product dimensions:
6.00(w) x 9.00(h) x 0.60(d)

Read an Excerpt

The Rule of Law in South Korea


By Jongryn Mo, David W. Brady

Hoover Institution Press

Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8179-4896-2



CHAPTER 1

The Constitution Should Not Be Tampered With

Lee Hoi-Chang


Introduction

Arguments for revising the Korean constitution seem to be taking on momentum these days. A number of prime ministers of the Roh Moo Hyun administration first intoned the need for a constitutional revision. They were followed by the Speaker of the National Assembly, whose first public statement was a proposal to revise the constitution so as to make it more fit for the 21st century. Discussions on constitutional revision are also spreading fast among constitutional scholars and specialists.

Roughly speaking, arguments for revising the constitution can be divided into two positions. One claims that the current constitution is inconvenient or deficient in some of its parts and therefore needs to be supplemented. The other camp claims that what is needed is to draft an entirely new and more perfect constitution better suited for the 21st century.

The Korean constitution, however, is a "rigid constitution" in the sense that the procedures for its revision have been made intentionally more difficult than in the case of ordinary laws. A proposal for a revision must be passed by a vote of at least two-thirds of the members of the National Assembly, then it must be ratified by a national referendum in which it must be supported by at least half of all votes cast by at least half of all voters eligible to vote in a general election. This is intended to ensure that the constitution will be revised only with the utmost circumspection. As such, the argument for revision based on mere inconvenience or partial deficiency is, I think, misguided.

Regarding the argument for total revision based on the alleged need for a new and future-oriented constitution, I think this too is without merit. As I shall show below, the very idea of an ideal constitution better suited for the 21st century has no substance or practicality. Moreover, it is my belief that the proper time for a total revision should be when we are at the stage of preparing a new constitution for a unified Korea.

Although there may be points worth listening to in the discussions among constitutional scholars and experts, the arguments originating from the politicians seem mostly intended to enhance their own sectarian interests. We need to guard against constitutional revisions being used as a tool for interest group politics. Here, I shall survey the major reasons put forth by people calling for a constitutional revision as well as the counterarguments that may be made in response.


Why Should the Constitution Be Revised?

The major points presented as grounds for a constitutional revision follow. Before I proceed any further, however, I should make it clear that I am neither a scholar nor an expert on this matter, and what I present here is not meant to be a scholarly or expert opinion. These are just my candid thoughts on the recent discussions on constitutional revision, from the perspective of someone who has had a chance to participate, as a justice of the supreme court and as a prime minister, in the actual operations of the government and to experience, as the leader of the opposition and as a presidential candidate, the political realities surrounding the relationship between the president and the National Assembly.


Allowing the President to Seek Reelection

On the relative strengths and weaknesses of a single-term presidency as against a system that allows reelection, much was discussed during the last constitutional revision in 1987. My recollection is that at the time, the single-term presidency was preferred out of a critical response to a system that allowed a second term.

Interestingly, recent advocates of constitutional revision are now criticizing the single-term presidency for encouraging short-term policy objectives due to the fact that longer-term objectives are not realizable within the incumbent's term of office; for promoting an early lame-duck situation due to the fact that the there is no chance for the incumbent to be in power long; and for eroding democratic accountability because the people have no chance to pass judgment on the incumbent's performance.

First of all, the point about single-term presidency causing undue focus on short-term policies is not as serious as one might expect. The fact is that during the term of past several presidents, all of whom were in office for a single term, many important long-term projects at the national level were formulated and are still being implemented. (Examples include projects on the high-speed railway system and the new airport in Incheon during the Roh Tae Woo administration, and restructuring the agricultural production system and constructing the information superhighway during the Kim Young Sam administration.) By contrast, a system that allows a second term may actually encourage short-term projects as the incumbent will wish to attain some "achievements" during the first term that will help him get reelected.

Also, the point about single-term presidency causing early lame-duck phenomena is considerably exaggerated. As a general matter, any president who has just been elected enjoys a high approval rating at the beginning of his term, which allows him to exercise great powers. Right after their inaugurations, Presidents Kim Dae Jung and Kim Young Sam's approval ratings were 87 percent and 81 percent, respectively. Typically, an incumbent president becomes a lame duck when there is about a year or so left in his term. Thus, a president facing a few difficulties at the beginning of his administration or politicians being embroiled in some conflicts should not be mistaken as a sign of a lame-duck presidency. By contrast, it has been reported that under a system that allows reelection, the president is likely to become a lame duck from the very beginning of the second term. President Roh Moo Hyun's troubles in the management of state affairs, which started from very early on in his term, should not be regarded as a lame-duck phenomenon caused by the single-term system; rather, the president's difficulties are a result of ineptitude and lack of experience on the part of his administration.

Next, the argument that democratic accountability is undermined because the people are deprived of a chance to pass judgment on the incumbent's performance is also weak and unpersuasive. If that were true, we would still face the same problem under a two-term system if an incumbent chose not to seek reelection or if the president had already served a second term. Since neither of them would be subjected to the people's judgment, we would have to conclude that a two-term system likewise undermines democratic accountability. Moreover, even under a single-term presidency, the people do have the ability to express their approval of the president at the next presidential election through their votes toward the candidate from the president's party and at the general and local elections held during the president's term. The results of the 1997 presidential election held in the midst of the Asian financial crisis and the local elections held on May 31, 2006, are good examples.

In fact, a system that allows reelection has some flaws not found in a single-term system. As the president's first priority will be to secure reelection, during the first term it is highly likely that he will concentrate on implementing policies designed to curry favor with the people so as to win their votes. Further, a president running for reelection will no doubt be in a much more advantageous position than the opposition candidate, which is problematic in terms of fairness and impartiality of the election.

Advocates of constitutional revision also claim that under the current five-year single-term system elections are too frequent because the terms for the president and members of the National Assembly are different and that this mismatch is likely to result in a so-called divided government in which the ruling party holds minority seats in the National Assembly. Therefore, they argue, a four-year two-term system is needed so as to synchronize the election terms. It is certainly true that different electoral terms mean that elections come around very often, and it may indeed be more convenient to synchronize them. Yet does this amount to a defect that has to be corrected immediately through a constitutional revision?

First of all, presidential elections and general elections for the members of the National Assembly have completely different meanings, both of which must be respected. If the two elections are held simultaneously, however, it is very probable that one will receive relatively less attention. Candidates in the general election may be too occupied with their own campaigns, and thus the presidential race will be determined by the individual personality or image of the candidates, turning it into a popularity contest. On the other hand, the general elections may be overshadowed by national issues that determine the presidential elections, in which case local issues will not receive the proper consideration. On the issue of divided government, I shall have more to say later.

In light of the preceding, it may be difficult to say with certainty which is better, a single-term presidency or a system that allows reelection, but I am convinced that at present there is no logically superior and urgent reason for a constitutional change toward a two-term system. If anything, given the possibility which I will show below that even a partial revision such as this may trigger a more fundamental discussion on the basic principles and identity of the constitution, I believe that it is improper to broach the topic of revision at all.


Abolishing Prime Ministership and Creating the Position of Vice President

Some argue for the elimination of the position of prime minister based on the rationale that this system promotes confrontation and discord in the government because the president tends to regard the prime minister as the head of the administration while seeing himself as the head of state, which causes him to view criticism from the legislature or opposition party as selfish, politically motivated obstructions thrown at his attempt to implement a supposedly higher vision for the whole nation that transcends the political divide. In other words, the existence of the prime minister tends to cause the president to be either dismissive of or confrontational toward such criticism, thereby undermining the government's capacity for dialogue and conciliation.

It is true that past presidents have regarded themselves as the head of state rather than the head of administration and tended to assume an imperious attitude in their management of state affairs, with no room for negotiation or compromise, which only intensified conflict and friction. It is incorrect, however, to attribute this to the system of prime ministership. The cause should rather be found in the past presidents' failure to understand the status of the president under a government of separation of powers. Even with no prime minister, they still would have regarded themselves as heads of state rather than heads of administration, and acted as if they were superior to the legislative or judicial branches of the government.

Do we then really need the position of prime minister? According to the constitution, the prime minister is to aid the president and to direct the various ministries of the government. In reality, however, past presidents were in direct control of both domestic and foreign affairs, thinking that the role of the prime minister and other ministers was merely one of assisting them and faithfully implementing their will. Thus, the prime minister's role was often limited to being an "on-behalf-of" prime minister or a "cannon-fodder" prime minister.

Yet this was based on a misunderstanding of the institution of the prime ministership. It is practically impossible for the president to personally manage every aspect of the affairs of the state. That is why the constitution gives the prime minister the power to direct the various ministries, so as to allow him to have a role in the governance of the state. In this connection, the expression "Prime Minister Responsibility System" used by some is inappropriate. According to the constitution, the prime minister is an assistant to the president and therefore even if he had a role in administering the affairs of the state, he is not constitutionally responsible to the people or the National Assembly.

The prime minister's power to direct the ministries is truly important as a means for ensuring consistency and continuity over time in the policies formulated and implemented by the various ministries as well as for coordinating the interests and operations of those ministries. The president, for his part, must respect the prime minister's power over the ministries and should establish a tradition of always going through the prime minister when dealing with the individual ministries. If the president or the Blue House were to call on each of the ministers personally and get involved with their daily operations, the ministries will start competing for the president's favor and there will no longer be any consistency or cooperation among the ministries. As a result, the president and the Blue House will be faced with a burden too heavy to handle.

When I served as prime minister in the Kim Young Sam administration, I strongly urged the president to put this into practice, but I was refused. Eventually, I resigned from the position due to increasing conflict with President Kim over my attempt to implement this understanding of the prime minister's role. As far as I know, President Roh Moo Hyun is the first to pledge a significant role for the Prime Minister and to actually practice some kind of division of labor between the prime minister and the president. Although his efforts came to naught due to the overbearing and arrogant actions of then–Prime Minister Lee Hae Chan, President Roh's attempt to implement a division of labor deserves recognition.

Next, the argument for creating the position of vice president in lieu of that of prime minister is based on the supposed benefit that derives from having the vice president perform emergency duties in case the president becomes incapacitated as well as the possibility of power-sharing and of having the views of certain minorities or regions represented in the government. According to the current constitution, however, the prime minister is authorized to be the acting president during the president's incapacity, and since this arrangement is a temporary measure expected to last for only a short period of time, I see no serious problem posed by the prime minister's acting as the president. In fact, back in 2004, we actually saw Prime Minister Goh Kun assume the powers of the presidency for a short time when President Roh Moo Hyun's powers were suspended as a result of the National Assembly's decision to impeach him.

As for the alleged benefits of power-sharing with the president, I believe the current system of division of labor between the prime minister and the president is a more realistic and workable arrangement. Historically, there were cases, under President Syngman Rhee's government, in which the vice presidency was used to satisfy the interests of minorities and regions. But Vice President Yi Si Young and Vice President Kim Sung Soo all resigned because of their clashes with the mainstream faction in the government. These examples lead me to be skeptical of the arguments for creating the position of vice president.

Some advocates of the vice presidency argue that in Korea, where parties are highly cohesive and hierarchical, running mates from the same faction or at least similar factions will not be prone to such power struggles. Yet if both the president and the vice president are from the same political faction, what would be the point of adopting the system of vice president? Furthermore, the argument is based on flawed assumptions, because nowadays, Korean political parties are showing less and less cohesiveness internally and are becoming much less hierarchical than in the past.


On the So-Called Problem of Divided Government

Advocates of constitutional revision claim that the current system encourages the emergence of governments in which the party of the president is the minority party in the legislature, that is, a divided government. They argue that due to the different electoral cycles, there is little room for the president's popularity to have any impact on the general elections and that, if anything, a desire to check the president's activity is likely to be stronger, which will result in giving majority seats to the opposition parties. They further point out that under such a divided government, the effectiveness of government administration will inevitably suffer.


(Continues...)

Excerpted from The Rule of Law in South Korea by Jongryn Mo, David W. Brady. Copyright © 2009 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Meet the Author

Jongryn Mo is a research fellow at the Hoover Institution and an assistant professor in the Graduate School of International Studies at Yonsei University in Seoul, Korea. David W. Brady is deputy director and senior fellow at the Hoover Institution.

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