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Lessons from the Korean Constitution and Constitutional Court

SHARE   |   Thursday, 19 July 2018   |   By Dr Letshwiti B. Tutwane
Lessons from the Korean Constitution and Constitutional Court

Africa Awake!

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This week I continue with observations from my recent Korean trip. This was a great opportunity to meet some of the finest constitutional scholars from all  over world who gathered under the auspices of the International Association of Constitutional Lawyers: from countries such as India, Algeria, South Africa, USA, Cameroon, Nepal, Nigeria, Morocco, Kyrgyzstan, Mozambique, Mexico, Brazil, Spain, Germany, Italy, Japan, Russia, Australia and many others. Amongst some of the high profile delegates were Justice Bheki Maphalala, the Chief Justice of Swaziland (a Wits PhD law candidate), the Chief Justice of New Zealand Dame Sian Elias (who spoke at the plenary, Justice Ibrahim Moustapha from the Constitutional Court of Niger, Prof. Miroslaw Granat (a retiree from Poland’s Constitutional Court) and Justice Carlos Bernal-Pulido from Colombia (formerly a law professor at Macquarie University, Australia), who also spoke at the plenary. One of the biggest law conferences in the world, and held every four years, it discussed burning issues such as terrorism and human rights and migration and human rights and prospects of a world constitution.   

 This time I focus on Korea’s Constitutional Court and some outstanding aspects of the country’s Constitution.

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The Korean constitution is one of the most progressive in the world. It is very serious about the protection of fundamental human rights.  One of the sweetest provisions that caught my attention is Article 10 which binds the State to provide quality life for its people:

‘All citizens shall be assured of human dignity and worth and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals’.

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Contrast this with our own Constitution which gives the State a negative responsibility and therefore helps it not to have a positive duty to further the interests of its citizens. Take for instance Section 12 on freedom of speech and freedom of information. In that situation, the State will only do the bare minimum, if anything, to promote rights. It is not bothered about data protection, media pluralism or the Freedom of Information Act.

Article 2 compels the State to protect citizens residing abroad. Under Article 7, ‘all public officials shall be servants of the entire people and shall be responsible to all the people’. Further, ‘the status and political impartiality of public officials shall be guaranteed as prescribed by the Act’. Political neutrality of the civil service is thus guaranteed and this in turn forces government to appoint people on the basis of merit. There are actually public service exams for those wishing to work for the government. When I was in Singapore last year, meritocracy was emphasized to me. This is a principle that has helped catapult Korea and Singapore to exceptional economic growth in just a few decades. Contrast this with Botswana were the nation is denied quality service from professionals who are deemed enemies of the state just because they hold contrary views. On the other hand the country is saddled with incompetent clowns who have brought down the civil service and parastatals but are preferred just because they support the ruling party. According to Article 21 (1), ‘all citizens shall enjoy freedom of speech and the press, and freedom of assembly and association’. This is couched in positive terms and binds the State. In terms of sub-section 2, ‘licensing or censorship of speech and the press and licensing of assembly and association shall not be recognized’. This means people can gather and protest and there are designated places like the famous Gwanghwamun square in Seoul where huge protests normally take place. The government is not bothered by such but consider protests to be their people’s rights. However, the Constitution also proscribes media from violating ‘the honour and or rights of other persons’ and from undermining public morals or social ethics (Article 21 (3).

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The Korean Constitutional Court has 9 justices appointed by the President. Among these, 3 are nominated by the National Assembly and 3 are nominated by the Chief Justice of the Supreme Court. The judges serve a six year renewable term until age 70. The court is committed to dispensing high quality justice and thus has put in place institutional mechanisms that support that. One is the system of Rapporteur Judges. Their responsibility is to investigate and research on deliberation and adjudication of cases under the order of the Constitutional Court President (who appoints them) and support the judges on case law. However, they may be appointed to another responsibility at the discretion of the Judge President. These are normally highly educated people and are required to be people who are qualified to be judges, prosecutors, attorneys-at-law, people in positions higher or equal to an assistant professor of law, a person who has obtained a doctorate in law and engaged in legal affairs for five years or more in state agencies such as Parliament, the Executive, ordinary courts or the Constitutional Court. A person who has obtained a doctorate in law engaged in legal affairs for at least 5 years in an accredited research institution is also eligible for appointment. Koreans value education a lot and I noticed that amongst academics a PhD looks like a must-have qualification. It places one on a higher pedestal in academic circles and improves significantly chances of serving in the higher bench or reputed research/support institutions of the courts. A lot of Korean professors have even broadened their scope by studying at prestigious US universities which broadens their global appreciation of the law.

The Constitutional Court is also bolstered by Constitutional Researchers and Academic advisors. These are law PhD holders who are employed to do constitutional law research. They investigate and research issues concerning deliberation and adjudication of cases. Since 2007, the court has been appointing university professors for these positions.

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Finally, judges in Korea are continually trained and conscientised about the ever-evolving comparative international law. The approach of the Korean Constitutional and Constitutional Courts in this respect is continuous improvement.  The Judicial Research and Training Institute (JRTI) trains judicial officers. Again it is staffed by highly trained personnel including law professors. I had the honour to be lectured by Dr Jin Wook Kim, Head of the Educational Department, Constitutional Research Institute of the Court and Dr Seokmin Lee, also from the same institution (Senior Research Officer).

The court takes its mandate very seriously. It boldly proclaims that it exists for the people of Korea and will administer justice without any fear or favour. To demonstrate its seriousness about independence and impartiality, in March 2017 the Constitutional Court upheld the impeachment of President Park Geun-Hye who is now serving a lengthy prison term.

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In the words of the President of the Court Justice Jinsun Lee:

‘The court’s reason for being is the people, all of us who honourably go about our tough everyday lives. Those who feel discriminated by unfair treatment under law; those whose claim for a legitimate right falls on deaf ears; those who are frustrated by systemic restraints that cannot be overcome by themselves, you can knock on the door of the Court. We will hold your hand and listen to you’.

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I could not think of more reassuring words than this and wonder if there is any African court that can make the same claims and actually live to them.

Next weekend I will look closely at significant case law from the Korean Constitutional Court. 

Dr Letshwiti B. Tutwane

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