Constitutional transition and the travail of judges: the courts of South Korea

Abstract

Few jurisdictions are more illuminating of constitutional law and politics than South Korea (‘Korea’). As autocratic legalism gradually shows its face in various corners of the world, Korea’s tumultuous history serves as a cautionary tale with respect to the extent to which autocratic legalism can be stretched. Whereas numerous countries had their first encounter with autocratic legalism only in recent decades, Korea was living under it back in the 1960s. During Korea’s lengthy authoritarian rule, the judiciary was timid and avoided head-to-head confrontations with the authoritarian regime. Nevertheless, it arguably showed signs of independence and an ability to mitigate the effects of authoritarian laws. Additionally, Korea is one of the handful of countries that have emerged from authoritarian rule and managed to stay democratic for an extended period. The Korean Constitutional Court has had a certain role to play in this achievement, challenging conventional scholarly wisdom on the extent to which courts can have a hand in democratization. Legal historian, Marie Seong-Hak Kim’s book is an ambitious attempt to unpack many of these facets, viewed through the lens of Korean courts from 1945 to the present day. Kim’s book comes with two methodological qualifications. Firstly, Kim states that since judges in authoritarian contexts are apprehensive about political reprisals, they rarely speak publicly about laws or their decisions. Therefore, she has tried to infer ‘jurisprudential and juristic belief’ from ‘the terse language in judicial opinions which were pervaded with mechanical and seemingly callous positivistic reasoning’. Secondly, Kim focuses ‘on law rather than politics’ and makes little attempt to do otherwise. After an introductory first chapter that provides background information and outlines the book’s arguments, Chapter 2 discusses Korea’s legal traditions, the making of its 1948 constitution and the Korean courts from 1945 to 1962. In 1948, after almost half a decade of Japanese colonial rule followed by three years of American military occupation, Korea promulgated a new constitution. There were serious attempts by the constitution’s drafters to leave behind the remnants of the colonial past. Simultaneously, to avoid a legal vacuum, they retained several colonial judicial personnel and judges to operate the court system. Since there were apprehensions about giving power to a judiciary with links to the colonial past, the Supreme Court and other lower courts under it, were only given the power to review administrative decrees and regulations. Meanwhile, a new part-judicial, part-political body, the Constitutional Committee, was entrusted with reviewing statutes issued by the legislature of Korea – the National Assembly. The choices made by the drafters generally remained untouched