Monday, November 29, 2004

On Another Front 

All is not quite on the constitutional front in South Korea. Twice in one year, the Constitutional Court has found itself in an unenviable position of having to �interpret the Constitution� on cases of blatantly political nature.

In May, the court turned down the National Assembly�s clumsy motion to impeach the nation�s President. Five months later, the court struck down a hastily-written law to move the country�s capital out of Seoul. Relocation of the capital had been the President�s signature policy.

Both times, the court�s rulings were received, with or without applause depending on your politics, as nothing more than politically-dictated decisions.

I have written an opinion pointing out theoretical deficiency in the court�s decision against the capital�s transfer. I argued that the court�s invocation of unwritten constitutional law in this case (�Seoul as the country�s capital amounts to customary constitutional law�) lacks jurisprudential grounds. Since then, I came to realize that my piece may have led some Korean readers to label its writer as a supporter of capital�s move and, ergo, pro-government.

This is unfortunate. Apart from being miffed by having my own view misunderstood, I find it rather disheartening that constitutional and legal arguments do not seem to matter much in Korea. Not many seem willing to debate constitutional matters on juridical grounds these days; instead, they simply zero in on the political implications of the rulings.

To be sure every constitutional case is a political case and the court cannot avoid the political dimensions of its responsibilities. Brushing off controversial decisions as mere partisan politics does not, however, help constitutional development in Korea.

Yesterday�s Korean newspapers reported that there is a movement to file a suit against the court�s refusal to disclose pre-decisional records relative to this case. This is just another in a series of challenges by those who disagreed with the ruling. They demanded that the court turn over justices� deliberations, draft memoranda, draft opinions, and research memos.

Those behind this newest challenge claim that the court�s closed-door proceedings, something supposedly akin to Byzantine secrecy, are intrinsically opposed to democracy.

They are not. Court deliberations sheltered from public scrutiny and political pressures are necessary to provide for an effective and candid discussion among the court members.

It is dubious what can be achieved from disclosing court deliberations, other than a sort of witch-hunt, singling out individual justices for their political views. This attempt is squarely based on the assumption that the justices merely acted out of their political allegiances. Some members of the ruling party even called for the resignation of the justices. We may as well forget about judicial independence.

The majority of the court can be chastised for failing to interpret the constitution faithfully. But allowing individual justice to be judged and blamed for his or her political value orientations is treacherous. The court should try to avoid political thickets as much as possible, and the public should refrain from treating it as a popular instrument of politics.

Once Koreans begin to give up on the belief that the court need be supported even when we disagree with it, it�s only a dismal slippery slope. Once you prefer exposing the court to political pressures, there is little hope to expect it to protect your fundamental rights and liberties. Then Korea�s constitutional order will indeed be in trouble.

Pohang, South Korea