Questions about South Korea’s Constitutional Court


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    Paper instructions:
    . Read the article below and prepare answers for the questions that
    follow it, contrasting constitutional review in Korea and the United
    States.
    Questions about South Korea’s Constitutional Court
    When South Korea’s authoritarian regime collapsed in 1987 after three
    decades, the victorious political forces rushed to transform their
    country into a liberal constitutional democracy. The Constitution was
    quickly revised, and in the process an unfamiliar new institution was
    created: the Korean Constitutional Court – a tribunal composed of judges
    with the power to overturn legislative enactments and executive orders
    if they were found to be inconsistent with the highest law in the
    country, the Constitution.
    The Korean Constitutional Court is outside of the hierarchical system
    of the ordinary courts, which consist of the Korean Supreme Court and
    the lower courts. The Korean Supreme Court hears appeals from judgments
    by the Appellate Courts. In contrast, the Korean Constitutional Court
    exclusively exercises constitutional review of statutes. Ordinary courts
    are barred from so doing, though they may refer constitutional
    questions to the Constitutional Court.
    The rationales for granting a special court the exclusive power of
    judicial review are as follows. First, it strengthens the independence
    of the ordinary courts by taking the constitutional review of statutes
    away from them, so that they can be free from political influence by
    lawmakers. Second, the special court’s efficiency and expediency secures
    effective protection of human rights and the Constitution because the
    power of judicial review is concentrated with an independent court and
    exercised under a unitary procedure.
    Unexpectedly, since its creation in 1988, the Constitutional Court
    has successfully introduced into the political system a new dimension of
    constitutional review, and has substantially helped the democratic
    transition in South Korea. Nevertheless, the Constitutional Court has
    often aroused resentment and opposition from powerful political elements
    in society. It has frequently had to say no to the legislature, the
    executive branch, or powerful private entities in its decisions. A very
    large proportion of the high-profile cases brought to the Constitutional
    Court have involved intense political controversies, which grew out of
    power struggles between opposing political forces.
    The dominant characterization of a court as a legal institution leads
    to a general belief in judicial objectivity and neutrality, which is
    derived from the doctrine of separation of powers, and which makes it
    wrong for judges to let their value preferences influence judicial
    deliberations. But there is an opposing perspective that in the course
    of settling disputes in accordance with existing law, courts often have
    no choice but to make new rules. It is this policymaking function, much
    more than dispute resolution, which places the judiciary at the center
    of controversy.
    Source: Cha Dong-wook, “The Constitutional Court: Political or Legal?,” The Korea Herald, (February 1, 2008).
     
    Questions:
    a. Traditional theories of judicial review hold that neutral or
    principled grounds are the only legitimate bases for judicial decisions
    and reject political motives in judicial decision-making. Do you believe
    this is true? Do you see principled v. political motives in important
    U.S. Supreme Court constitutional decisions which overturn laws passed
    by legislatures (such as restrictions on gun ownership, or marijuana
    use)?
    b. Interestingly, those behind high-profile cases brought to the
    court are often those who seek political agendas. In Korea, they defer
    to the Korean Constitutional Court when a political deadlock is reached
    (and they were unwilling or unable to settle contentious public disputes
    in the legislature). Politicians may invite judicial intervention
    deliberately to avoid public criticism of their incapability of action
    and to divert responsibility to the Court. Do you think this is true in
    the United States? If so, can you provide a specific example?
    c. When people cannot get decisive action from their political
    leaders, they are very likely to turn to courts and judges instead. That
    is, when any political group cannot gain electoral support enough to be
    a dominant ruling party or coalition, the court becomes perceived as
    the most reliable civil institution in the country. In controversial
    cases, such as gun ownership rights or marijuana use in the U.S., do you
    see similarities or differences from this trend occurring?
    d. Judicial review is a double-edged sword. If exercised
    courageously, but prudently, to defend the rights of those politically
    and economically disadvantaged or hold the line against abuses of power.
    On the other hand, judicial review can easily become a formidable
    instrument for legitimating the interests of existing political and
    economic elites. Can you provide examples of cases where the U.S.
    Supreme Court, like the court in Korea, attempted to walk the line
    between government power and the rights of individuals without that
    power?

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