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FEATURECOVER STORY
Changing Constitutions, the Cornerstone of a Country
Kwon HyukJoon, Choi Hyunbin  |  hjkwon97@korea.ac.kr, khyrst@korea.ac.kr
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승인 2017.05.31  23:12:15
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▲ National Assembly building of Korea. Provided by Wikisource
 
Countries stand upon the cornerstones called law, and laws stand upon the shoulders of giants called the constitution. Constitutions define a country and establish its core values, and to change one would be to alter the course of that country for decades and generations to come. During its history, Korea has seen six different renditions of the constitution, each Republic bringing about different ideologies and its interpretation of Korean democracy. Now, in the 21st century, calls for constitutional amendment are stirring Korea to rise from the smoldering ashes of Park’s presidency.
 
A constitution, as defined by the Oxford Dictionary, is “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” Its definition contains both “body” and “precedent,” because a constitution is not always codified. Countries such as the United Kingdom (UK) lack a written constitution and instead rely on court rulings and precedents. On the other hand, South Korea’s constitution, like that of the United States (U.S.), is codified, and a single document exists as the constitution of the country.
 
Although every constitution is unique in its way, it is generally true that constitutions—particularly written ones—are difficult to amend. Over the two and a half centuries of U.S.’s existence, the U.S. constitution was never rewritten; there have been only 17 amendments. South Korea, on the other hand, saw nine revisions and was rewritten five times over the seven decades of its existence.
 
 
   
▲ Professor Cha Jina. Photographed by Sohn Sumin.
 
Constitutions of Yesterday
 
The first constitution of South Korea was drafted by the Provisional Government of the Republic of Korea in 1919, but the first effective constitution was promulgated on July 17, 1948.This constitution was first amended in 1952 ahead of Rhee Syngman’s reelection, and provided for direct presidential elections and a bicameral legislature. The vote was carried out under irregular processes and without due process, setting precedent for a history of political and constitutional turmoil for Korea in the days to come.
 
In 1954, Rhee forced another amendment, which removed term limits for him and emphasized a capitalistic economic model. By 1960, however, Rhee’s actions had caught up with him and a democratic movement instituted the Second Republic. The 1960 Constitution created a cabinet, a figurehead president, a bicameral legislature, an election commission, and a constitutional commission. In addition, it provided for elections for Supreme Court justices and provincial governors, as well as individual rights based on natural law.
 
The Second Republic was still in its infancy when on May 16, 1961, Park Chung-hee instigated a military coup. By 1962 the Third Constitution—the Yusin Constitution—was ratified. It provided for an unlimited number of six year terms, the right to appoint one-third of the National Assembly, the authority to suspend constitutional freedoms, and to rule by decree. The new document, in essence, allowed a president to become a legal dictator. As its implications would suggest, the constitution was met with enormous controversy.
 
Park’s reign during the Fourth Republic can be described as a time void of due process and legitimacy. A newspaper article from that period reported that Park Chung-hee was elected with 99 percent of the vote. In a harrowing parallel, North Korean elections often feature one candidate who always wins over 99 percent of the vote.
 
When Park was assassinated on October 26, 1979, Choi Kyu-ha assumed interim presidency. On December 12, 1979, however, Chun Doo-hwan led an armed coup d’etat against Choi’s provisional government. His actions were met with fierce opposition as well as armed resistance in Gwangju. Opposition was violently suppressed, much to the dismay of the international community, and Chun sought yet another constitutional change.
 
   
▲ Original constitution of the Republic of Korea. Provided by Wikisource.
 
On October 27, 1980, the ninth Constitution of Korea was promulgated. Unlike Park Chung-hee, Chun did not have the political freedom or leverage to establish a powerful presidency, and thus limited the presidency to a single seven-year term. However, the constitution guaranteed that the party in power would not lose the majority in the National Assembly. For example, in the 1985 elections, opposition parties earned 49.0 percent of the votes while Chun’s party earned 35.2. If proportional, the opposition would have earned 120 seats compared to the ruling party’s 119. In reality, the ruling party earned 148, compared to 103 of the two opposition parties.
 
The 2,550 days from March 3, 1981 to February 24, 1988 under Chun were essentially an authoritarian regime punctuated with state-sanctioned terror and torture and the weakening of democracy. It also was a time of explosive economic growth and was a hub to Korea’s fastest growth rate yet. These oppressive times came to an end with the June Democratic Uprising and the 1987 Constitution, the document that established the Sixth Republic—the current and longest surviving system of Korea.
 
For the 70 years’ history of the Constitution of Korea, this roadmap may appear tumultuous and volatile. However, the nine revisions over those years “is in fact not a large number,” claims Professor Cha Jina (School of Law). “While it differs by each version, amendment processes have been and are complicated. Also, the current constitution has been maintained for over 30 years.”
 
 
   
▲ Icelandic citizens who drafted the new constitution. Provided by kvennabladid.is.
 
Constitution of Today
 
Korea’s Constitution today is its 10th rendition, adopted on October 29, 1987 by means of complete revision. The promulgation of the 1987 Constitution loosely coincides with the establishment of the Sixth Republic system. The Constitution of South Korea is composed of a preamble, 130 articles, and 6 addendums that seek to “guarantee citizen’s basic rights and duty and define the government and its working principles.”
 
The history of this Constitution dates back nearly four decades and has served as the foundation of seven governments. The Roh Tae Woo, Kim Yeong-sam, Kim Dae Jung, Roh Moo Hyun, Lee Myung Bak, and Park Geun Hye administrations are all part of the Sixth Republic’s timeline. Although the constitution is, by relative standards, an extremely long-lived one, there have been talks of amending it since the Roh Tae Woo administration.
 
In many accounts, discussions for amending the 10th Constitution surfaced quite early on. With the 1990 merger of three political parties, the party leaders (Roh Tae Woo, Kim Yeong-sam, and Kim Jong Pil) secretly pledged to seek constitutional reforms for a parliamentary system. As such, earliest discussion of a parliamentary system in the Republic of Korea dates as far back as the 90s, and only three years since the adoption of the 10th Constitution.
 
Even so, the constitution is yet to be changed. “The ’87 Constitution was designed to be difficult to amend in order to prevent dictatorships from being formed in the future,” says Professor Cha. “Changing term limits or form of governments is extremely limited. New constitutions cannot apply to the incumbent government, and must receive a supermajority as well as go through a referendum to pass.”
 
In 2007 during the Roh Moo Hyun administration an effort to amend the constitution and change presidential and congressional term limits surfaced but was quickly shot down. In 2016, as the 20th general elections concluded with three major political parties, the story was different. As the two-party system crumbled in the aftermath of the elections, constitutional amendment was once again a hot issue for all parties. Flipping her previous stance on amendments, then-President Park suggested constitutional reforms on October 24, 2016 though within the day, the infamous Choi Soon-sil scandal began to rise.
 
As such, details surrounding constitutional amendments have passed from Park’s administration to the next administration. While there  had been voices suggesting that the Constitution  could be amended before the May 9 presidential elections, the vast majority of politicians believed that time was too short for amending a constitution, not to mention making meaningful progress in discussing the various details and intricacies of the new Constitution.
 
Only a month into the new administration, details surrounding the amendment efforts are still hazy and offer the bare minimum at best. The more common suggestions such as instituting a parliamentary system and changing presidential term limits to a maximum of two four-year terms have surfaced as expected. Even so, president Moon Jae In maintained that they cannot agree with a constitutional amendment right before elections, and Ahn Cheol-soo has gone on to state that the amendment must be carried out through general elections in 2018.
 
Changing political systems is not the only discussion on the table, however. Most of the suggested articles related to this category pertain to updating the constitution so that it encompasses and acknowledges structural changes in government made after 1987. For example, the National Human Rights Commission of Korea (NHRC) was established in 2001, and as a result the constitution lacks an article or addendum constitutionally defining its parameters and authority.
 
Redefining the fundamental rights guaranteed by the Constitution of Korea has also been suggested by the Justice Party. Party leader Shim Sang Jung maintains that environmental protection, animal rights, and equal pay for equal work among others are all items that must be guaranteed by the constitution. In addition, Shim claims that the article preventing double indemnity must be removed, stating that people must be able to receive their due payments for their services that ended with the ultimate sacrifice, death.
 
“There is a cultural need as well as a need to adapt to changes and they have brought forth the public support for constitutional amendment,” states Professor Cha. “I believe there is a high chance that the constitution will be amended within the term of the new administration. Unless the constitution is generally repaired, there will be scandals and presidents such as former President Park.”
 
   
▲ Professor Yi Zoonil. Photographed by Park Tae In.
 
 
What About in Other Nations?
 
Constitutional amendment is a political hot potato in other countries as well. Since constitutions exist in most societies, whether codified or not, there exist different cases that should be closely scrutinized to enable a more constructive discussion in Korea. One notable example is the case of Japan. After its defeat in World War II, Japan adopted a pacifist constitution that prohibited its use of force in all circumstances except self-defense. However, the conservative government, led by Prime Minister Abe Shinzo, has been putting in efforts to amend the constitution to enable militarization. Consequently, conflicts between politicians and citizens who oppose to the movement are still ongoing.
 
While discussions about constitutional amendment revolve around the turbulent political condition of each nation, the case of Turkey displays how the process can be abused for political purposes. President Recep Erdogan, in order to consolidate his authoritarian regime, changed the current parliamentary system into a presidential system, allowing himself to continue his tenure possibly until 2029. Surprisingly, the amendment received 51.4 percent of popular support, and therefore gained procedural legitimacy as well. Professor Yi Zoonil (School of Law) explained that, “As seen from Turkey’s case, it is important to keep away from the superficial belief that modification of a constitution will necessarily lead to progress.”
 
On the other hand, there also exist successful precedents that should not be overlooked. Ireland legalized same sex marriage in May 2015 through a constitutional amendment that passed with 62.1 percent of public support. Considering that Ireland is one of the most conservative nations in Europe with approximately 80 percent of its population being Catholic, the ruling came as a meaningful surprise. In the Republic of South Africa, constitutional amendment was adopted in 1997, after eight years of profound discussion and preparation, to abolish racist policies including the apartheid. These cases exhibit how constitutional amendment can function as an effective means to reflect changes in social perceptions and to eliminate evil practices.
 
Some cases provide useful guidance regarding the procedural aspect of constitutional amendment. In 2010, Iceland adopted participatory methods including crowd sourcing that enabled direct participation of citizens throughout the entire process of amendment. 950 citizens were able to take part in public discussions about the content of the new constitution, and a council composed of 25 representatives who were selected through popular election created the draft. Interestingly, the occupations of representatives were diverse, including a college professor, theatre director, and even a physician. Ordinary citizens were also able to engage in the drafting process by delivering their suggestions through an online platform.
 
Even though the constitution was not ratified, the case of Iceland implies that it is indeed possible for citizens to play a leading role in establishing the new foundations of their society. In other words, citizens, who become the subjects of the constitution, get to determine their own system. “While popular voting allows citizens to merely determine whether to accept the draft made by authorities, such methods enable citizens’ participation in the creation of the draft in the first place,” explained Yi. Especially, considering the fact that Korea is one of the nations that are equipped with outstanding Informational Technology (IT), the implementation of participatory procedure does not seem to be unrealistic.
 
Nevertheless, a cautious approach will be necessary when implementing such methods in Korean society. The system might have worked in Iceland, which has a small population, but it might lead to unforeseen consequences in a more populous society where diverse interests fiercely collide with each other. Furthermore, the issue of representativeness might still remain in question in spite of such methods. Since completely direct participation is impossible to realize, representatives will still have to be chosen among the population. “Whether these chosen people will properly represent the interests of ordinary citizens and reconcile differences compared to regular politicians is still unpredictable,” said Yi.
 
 
   
▲ Protest against the recent constitutional amendment in Turkey. Provided by global.handelsblatt.com
 
Constitution of Tomorrow
 
Whether amendment of the constitution is necessary has been a subject of stark controversy. Advocates of amendment claim that the current constitution is already 30 years old, and therefore needs to embody changes that have occurred in our society. On the other hand, some claim that the current discussion related to amendment was first initiated by the former president to avoid political crisis, and therefore does not reflect the will of the public. However, according to the survey conducted by Maeil Broadcasting Network (MBN) in March, 62.6 percent of 1509 respondents answered that they agree with amendment. This implies that there is a general consensus about a need to implement some kind of changes to the current constitution.
 
Then what kind of change is called for? As mentioned before, discussions regarding constitutional amendment have been mostly centered on reformation of power structure to allocate authorities that currently reside with the president. “The current discussion was first initiated by politicians to take the political initiative, so the spectrum and range of further discussions should be more diversified,” explained Yi. Besides changing the institutional frame, clauses related to fundamental human rights should perhaps be a major topic of debate. It will be necessary to specify the ambiguous ones to allow the constitution to function properly as a means to protect individuals from different threats of modern society.
 
One good example is the clause related to social rights. Social rights refer to fundamental rights to demand necessary assistance from the government for an individual to maintain a living worthy of human dignity. Compared to other types of fundamental rights, social rights are active rights to ask for the government’s actions, and therefore need to be as specific as possible to clarify the responsibilities of the government. However, the current constitution merely stipulates that the government has the responsibility to realize social security without articulating precisely how to do so. Such ambiguous clauses should be clearly defined through amendment so that the citizens can better understand and exercise their guaranteed rights.
 
Another aspect is related to individuals who will be subject to the constitution. Compared to the 1980s, Korean society has become more multi-cultural, meaning the inclusion of foreigners has become important as well. Therefore, some claim that parts of the constitution that guarantee human dignity and fundamental rights should apply to every human being, irrespective of nationalities. Furthermore, in the long term, the constitution should embrace sexual minorities by guaranteeing legal equality and their fundamental rights, such as the right to marry. Even though Korean society still remains defensive about same-sex marriage, such matters should be included in the discussion later on after achieving a social consensus on the issue.
 
Besides the content of constitutional amendment, there is also a debate about modification of the procedure. Since the recent amendment that passed with 51.4 percent of public support, Turkey has been overwhelmed by massive protests led by people who oppose the outcome. Some hold the view that constitutional amendment should require a super-majority of the popular vote in order to prevent such disorder and chaos from happening in Korea, while others maintain that modification should certainly become easier so that the constitution can be more flexible. “Regardless of the process, it is indisputable that there should be more procedural channels for the general public of Korea to more actively and directly participate throughout the process,” added Yi.
 
 
The Blurred Future of the Constitution
 
Whether Korean society will encounter its tenth constitutional amendment in a near future is still unpredictable. All of the major candidates of the 19th presidential election emphasized that a referendum on the amendment will take place along with the local elections that will be held in June 2018. However, the reality might be much more complicated because the length and complexity of the process will be determined by the range of the amendment that politicians and the public agree upon. “The draft will include a set of controversies, ranging from political system to social issues, that reflect different stakes and interests, making it difficult to form a united consensus regarding the entire draft in a short period of time,” anticipated Yi.
 
As explained so far, there are diverse perspectives regarding the direction and procedure of constitutional amendment, so it is unlikely that it will happen soon. However, discussions about it might continue since it could be an effective tool for some politicians to divert political interest from crises that jeopardize their interests. Therefore, regardless of when it happens, it is essential to pay sharp attention to the discussions surrounding it so that it will not be abused by the authorities. Instead, the public should be able to determine the new pillars of their society by deciding when it will take place and what will be included in the new constitution. Thus, even though the process of amendment will be an exhausting journey, it is important to guard against political apathy.
 
The constitution is the ultimate custodian of social will and its making should be accorded all due diligence,” said Mwai Kibakr, the third President of Kenya. The most important part of constitutional amendment is perhaps the integrity of the movement. Since a constitution should remain solid and stable as the mainstay of a society, even the slightest flaw or negligence in amending it will eventually undermine order of democracy. In other words, there is no right or wrong in the matter of constitutional amendment. It should begin whenever a wide consensus is formed among the public, and it should end only after thorough discussions take place. In that way, a constitution will be able to function as the true cornerstone of a society.
 
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