[Prepared for presentation at the Conference on Law and Democratization in Taiwan
and South Korea, University of Wisconsin Law School, October 19-20, 2007. This is a
work in progress. Please do not cite or quote without the author’s permission.]
Korean Constitutional Court at the Crossroads:
Countermajoritarian Difficulty and the Idea of
Constitutional Adjudication
Hahm Chaihark
A few years ago, Michel Rosenfeld posed an interesting paradox arising from a
comparison of constitutional adjudication in Europe and the United States.1 Why is it,
he asked, that charges of undue politicization have been made “much more
vehemently” against the American practice of constitutional review, when in fact the
European constitutional courts exercise much more expansive and more “political”
power?
The French Constitutional Council has the power to invalidate laws even
before they are promulgated, even without a concrete case or controversy. Given that
parliamentary sovereignty is a strong part of the French political tradition, it would
seem that such a “court” should be more subject to criticism. In Germany, the Federal
Constitutional Court has the power to enshrine and enforce certain substantive values
and policies.
This results in an atrophy of the sphere of ordinary politics in regard to
certain issues which are effectively taken over by the Court. And yet, according to
Rosenfeld, it is the U.S. Supreme Court, and not these European courts, which has
become the target of vociferous attacks for behaving too politically. An example is the

Associate Professor, Yonsei University, Seoul, Korea. S.J.D. Harvard Law School (2000); J.D.
Columbia Law School (1994); M.A.R. Yale Divinity School (1989); LL.M. Yale Law School (1987);
LL.B. Seoul National University (1986).
Michel Rosenfeld, Constitutional adjudication in Europe and the United States: paradoxes and
contrasts, 2 INT’L J. CONST. L. 633 (2004).
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contentious debate on the so-called “counter-majoritarian difficulty” which continues
to exercise many American legal scholars, but which apparently has no parallel in the
European context.
In a way, Rosenfeld’s article is an attempt to solve this riddle.
Without going
into the details of his argument, it is worth noting that for Rosenfeld the paradox has a
logical explanation. It turns out that in the U.S. a combination of historical, structural,
institutional, and societal factors conspire to create an environment in which the
legitimacy of constitutional adjudication by the Supreme Court is particularly liable to
be challenged. Among the causes discussed by him are the common law background
of American constitutional tradition, the lack of express textual authorization for
judicial review, the specific terrain of American political landscape, and the dynamics
between the judiciary and the political branches of the government.
Suffice it to say
that, according to Rosenfeld, the American practice of constitutional adjudication all
but invites the charge of undue politicization, whereas in the European context—
despite the patently political powers wielded by their constitutional adjudicators—
such concerns are rarely raised.
More knowledgeable scholars on American and European constitutional
traditions may find Rosenfeld’s analysis overly reductionistic or generalized, though
perhaps that is unavoidable to some extent in any comparative work. It is not my
intention in this paper, however, to criticize or dispute Rosenfeld’s article. Rather, my
aim initially is to show how a new paradox seems to emerge if we apply his
conclusions to the Korean context.
Why is it that the Korean practice of constitutional
adjudication, which is modeled on the European system of having a separate and
specialized Constitutional Court decide on constitutional matters, is now becoming the
target of criticisms so similar to those directed at the U.S. Supreme Court?
2
Although
generally understood to be inspired by the German system, the Korean Constitutional
Court has attracted much criticism that it is exceeding its limits to meddle with issues
that should more properly be left to the people and their representative—that it is
becoming too politicized.2
Attacks focusing on its alleged democratic deficit are now
commonplace in Korean political and legal discourse.
According to its critics, the
Court has been guilty not only of overreaching, but also of staging a “judicial coup
d’état.”3
What is it about the supposedly “European-style” Korean constitutional
adjudication system that invites such charges of politicization and challenges to its
legitimacy?
An easy sociological answer, one that is actually suggested by Rosenfeld
himself, may be found in the fact that contemporary Korean society is deeply divided
on many issues of substantive values and ideals. Discussions of deepening divisions
within Korea—along class, generational, and regional lines—have become a staple of
recent analyses of the country.4
According to Rosenfeld’s analysis, even the German
Federal Constitutional Court is increasingly finding itself at the center of criticism as
the general consensus on substantive values that used to obtain previously is steadily
weakening.5
There is no doubt that Korea’s polarization—between progressives and
conservatives, between supporters and critics of the “Sunshine Policy” of engagement
toward North Korea, between supporters and critics of free trade and globalization—is
providing fertile grounds for criticism of constitutional adjudication.
This has been particularly so ever since the Court decided on a number of
2
[cite]
3
[Newspaper cite]
Hahm Chaibong, The Two South Koreas: A House Divided, WASH. Q., Summer 2006, at 57;
Jongryn Mo, What Does South Korea Want?, POL. REV., Apr. & May 2007, at ?.
4
5
Rosenfeld, supra note , at ?
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high-profile cases in 2004, all of which dealt with, though in different ways, deeply
divisive and political issues.
For example, the decision on the impeachment bill
passed by the National Assembly against President Roh Moo-hyun 6 triggered a
cascade of criticisms.
Even though the Court ultimately rejected the bill and
reinstated the President to his office, charges of politicization came from not just Roh’s
critics but also from his supporters.
Similarly, after it dismissed the case that
challenged the constitutionality of the government’s decision to dispatch Korean
troops to Iraq as part of the United Nation’s Peace-Keeping Operations,7 the Court was
attacked for playing politics, or at least for being too deferential to political power.
Later that year, when the Court blocked the administration’s move to relocate the
nation’s capital southward,8 accusations of politicization flared up again, with charges
of “judicial coup” leading the way. In sum, the issue of “politicization” has become a
common topic among observers of the Court.
To be sure, these were not the first time that the Court dealt with a politically
sensitive or divisive issue.
From the point of view of Korean constitutional
jurisprudence, they may not be the most significant decisions, either. Nevertheless,
these cases did have the effect of putting the Court under the media spotlight, and
caused many people who had been previously unconcerned about the Court’s business
to cast a watchful gaze over its conduct.
Perhaps, this was unfortunate for the Court
because in these particular cases, whichever way it decided, it was almost inevitable
that it would be criticized for being too “political.” For one thing, emotions were
running very high on both sides, which meant that any decision would have invited
6
Case No. 2004 HeonNa 1 (judgment of May 14, 2004).
7
Case No. 2003 HeonMa 814 (judgment of Apr. 29, 2004).
8
Case No. 2004 HeonMa 554 (judgment of Oct. 21, 2004).
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the charge of failure to maintain “neutrality.” More importantly, the cases themselves
involved highly political disputes generated by politicians over political issues.
Particularly in the impeachment case, given the inherently political nature of an
impeachment proceeding, it was all but impossible for the Court to reach a decision
that was not “political.” Under such circumstances, it may even be unfair to criticize
the Court for being concerned with the political dimensions of the case, or acting in a
political manner.
This debate, or accusations, caused by the recent controversial decisions by the
Court reveals a number of implicit understandings and attitudes held by most people
regarding the role of the Constitutional Court in Korea. First and most obviously, it
shows a widespread expectation and demand that the actions of the Court be
“politically neutral.”
This in turn suggests that many people regard the Court as
essentially a “legal” institution. Underlying this is the common view that law and
politics must be kept rigorously apart, and that political influence on legal institutions
necessarily spells the corruption and perversion of law.
In other words, it is because
the Constitutional Court is seen as a “legal” institution that its politicization becomes a
ground for criticism.
This is the commonly held notion that law should be above the
partisan squabblings of politicians and instead should represent some form of
impartial wisdom, if not transcendent truth.9
After all, if the Court were to make no
effort at all to maintain neutrality and objectivity, it would probably lose the
respectability and legitimacy it currently enjoys in Korean society. The argument is
that the Korean people, when they adopted the current constitution, would not have
Among American legal academics, this view was perhaps best reflected in the famous idea of
“neutral principles” espoused by Wechsler. Herbert Wechsler, Toward Neutral Principles of
Constitutional Law, 73 HARV. L. REV. 1 (1959).
9
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created a separate Court if all that they wanted was just another political agency
representing partisan viewpoints. Indeed, that is why the constitution specifically
forbids the Justices’ membership in political parties as well as any involvement in
politics.10
The very ideal of judicial independence seems to be premised on a sharp
distinction between law and politics.
The various attempts to shield and protect
judges, such as guaranteeing them life tenure, or at least a fixed term, and severely
limiting the means of removing them from office (e.g., only via impeachment) are all
based on the idea that judges may be improperly swayed by politicians and by political
pressure without the independence provided by these and other mechanisms.
Political influence is bad because it is almost by definition partial and biased. This
juxtaposition of law and politics may be seen as an essential foundation of the very
ideal of rule of law. From Montesquieu to Dicey to Hayek, many theorists of rule of
law have considered it necessary to segregate law from politics.11
Whether or not this is an ideal that is realizable, or even worth pursuing, has
been the subject of many critical legal theorists and political thinkers.12
Without
seeking to provide a definitive answer to this seemingly interminable question, this
paper will address a related, but slightly less philosophical, issue which may be more
directly relevant for the understanding the significance of constitutional adjudication
in Korea. By examining the various debates surrounding the Constitutional Court’s
alleged politicization, the paper seeks to raise doubts about the propriety of applying
the conventional “law vs. politics” dichotomy as a conceptual framework for
10
HŎNPŎP [Korean Constitution], art. 112, sec. 2.
THE SPIRIT OF THE LAWS, THE ROAD TO SERFDOM See generally BRIAN TAMANAHA, ON THE
RULE OF LAW: HISTORY, POLITICS, THEORY (2004).
11
12
E.g., Kairys, Unger, Duncan Kennedy,
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understanding the Court’s role and status.
It will be suggested that, despite the
rhetorical force of the charge that the Court is becoming too political, perhaps this kind
of criticism misses the point. Maybe, such criticism is based on a misunderstanding of
the job of the Court, as well as its basic raison d’être.
As a way of highlighting the pervasiveness of the “law vs. politics” dichotomy
in current Korean discussions about the role of the Constitutional Court, Part II will
start with a discussion of the recent controversy over President Roh’s unsuccessful
attempt to appoint Justice Jeon Hyo-suk as the new head of the Court.
The exchange
of accusations and denunciations that took place during the confirmations hearings for
Jeon reveals how the “law vs. politics” dichotomy informs the views of Korean
lawmakers and judges of different political persuasions. While their views do not
reveal anything particularly profound or new, they are an indication of how firmly
entrenched this dichotomy has become.
Part III will be a discussion of the
institutional factors which fuel this controversy over politicization.
While the
sociological fact of polarization in Korea is certainly a major cause of this phenomenon,
there are other legal or institutional reasons that are worth noting. These actually
may explain the “new paradox” that I noted above. It turns out that, despite the
conventional categorization of Korea’s constitutional adjudication system as essentially
a European (or civil law, or German) model, there are actually elements which are
closer to the American system which tend to produce the more vehement accusations
of politicization.
Next, in Part IV, the paper will ask whether such charges of
politicization, based on the “law vs. politics” dichotomy, are appropriate for
understanding the role of constitutional adjudication in Korea.
It will start by
examining the significance of setting up a specialized constitutional court, and proceed
to analyzing the set of cases over which the Constitutional Court has jurisdiction
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according to the constitution.
The intention here will be to find out whether the Court
was meant to operate in a purely “legal” manner. By tracing the pedigree of the types
of cases that the Court is authorized to resolve, it will ask whether the Court can
properly be understood as a “non-political” institution.
This will be followed in Part
V by a critical review of the different views among Korean scholars on the nature of
constitutional adjudication.
The aim here will be to propose a better understanding of
Korean constitutional adjudication which highlights its role in the context of a country
that has gone through political democratization and is in the process of consolidating
democracy.
The discussion will draw on the growing literature on the role of
constitutional adjudicators in other transitional contexts.
Table of Contents
I.
INTRODUCTION
II. THE APPOINTMENT FIASCO
III. GROWING CHARGES OF POLITICIZATION
A. Another Paradox?
B. Institutional Factors
C. Political Polarization
IV. IS CONSTITUTIONAL ADJUDICATION “LEGAL” OR “POLITICAL”?
A. The Idea of a Constitutional Court
B. The Nature of the Constitutional Court’s Individual Jurisdictions
V. NEITHER LEGAL NOR POLITICAL, BUT CONSTITUTIONAL
A. Scholarly Views on the Nature of Constitutional Adjudication
B. Carving Out a New Category: “Constitutional”
VI. CONCLUSION
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