As promised, this week I examine the jurisprudence of the Korean Constitutional Court. With just 30 years in existence, the Korean Constitutional Court has achieved a lot in this short period of time. It has been busy interpreting the law and reshaping it in a progressive manner consistent with human rights law. Some of the decisions we are about to look at will remind one of the jurisprudence of the European Court of Human Rights (ECtHR) or the American courts. The approach is a delicate balancing act of competing rights, with doctrines such as proportionality, prescription by law and necessity given much weight.
Under Article 1 (Section 1) of the Constitution of Korea, the Constitutional Court (CC) has jurisdiction in five areas: adjudication on the constitutionality of statutes, constitutional complaint, adjudication on competence dispute, adjudication on impeachment and adjudication on dissolution of a political party.
I will depart from the conventional way in which cases are cited in Botswana and in the West and cite them the way it is done in Korea. The first case will look at is the Motion Picture Pre-Inspection Case [8-2 KCCR 212, 93 Hun-Ka 13 et al., Oct. 4, 1996]. In this case the court threw out Article 12 of the Motion Picture Act (MPA) as unconstitutional and an infringement of freedom of speech and freedom from censorship. As we saw last week, Article 21 (2) of the Korean Constitution expressly bans censorship, licensing of speech and the press and licensing of assembly and association. The MPA required pre-inspection of motion pictures before they could be shown in public. The law prescribed that motion pictures be screened by the Ethics Committee of the Ministry of Culture and Sports. Failure to do the pre-inspection was punishable by a jail term of up to 2 years or a fine of up to 5 million Won (now about P46 000). Since then, provisions of many Acts requiring prior screening have been declared unconstitutional.
The MPA is similar to our Cinematograph Act (Act No. 73 of 1970). This is a law meant to regulate the making and exhibition of Cinematograph films, licensing of films and associated issues. Under this law no film can be made for the purpose of public exhibition without a filming permit issued by the Minister responsible. A full description of the scenes and the full text of the spoken parts of the entire film to be made has to be availed to the Minister in writing, states the Act. Section 10 provides for the establishment of a Board of Censors appointed by the Minister to screen the film permit applications. This Board is led by a Chief Censor and an unlimited number of other censors prescribed by the Minister from time to time. France and other colonisers had such laws for their colonies in the 1800s. It shocks me that Botswana still keeps such antiquated, anachronistic laws such as this. However I am sanguine that if an application on this law came before any serious judge at the High Court he/she would without hesitation strike it down.
In another freedom of speech case, in June 2002, the CC declared unconstitutional a provision in the Telecommunications Business Act (Act No. 5220 of 1996) which empowered the Minister of Information and Communication to order an Internet Service Provider (ISP) not to carry content that could potentially harm social order or public norms. ISPs that did not adhere to this law could face at least 2 years imprisonment or a fine of at least 20 million Won. This provision was found by the court to be broad and vague. Broad and vague law fails ‘the prescribed by law’ test. In short, such a law is not law and falls to be struck off. Clearly a broad and vague law risks failing the proportionality test. The CC has over the years also struck down administrative measures meant to proscribe certain behaviour. For instance, the Promotion of Motion Pictures Industry Act had a clause that permitted an agency to withhold a rating for movies that ‘harm public morals or disrupt the social order by their excessive description of violence and lewdness’. In 2001 the CC ruled that such a provision was unconstitutional as it introduced prior restraint that is prohibited by the Constitution of Korea.
In another interesting case [26-1 (A) KCCR 136, 2012Hun-Ma409 et. Al., Jan. 28, 2014] that shows that Korea is in a different league when it comes to human rights, the CC ruled that prisoners and probationers with suspended sentences should be allowed to vote in national elections. The Public Official Election Act Criminal Code had limited rights of prisoners and probationers with suspended sentences. The part relating to probationers with suspended sentences was found to be in violation of the constitution. With regard to prisoners, the court also found that it was not compatible with the constitution, given that details of granting the right to vote to prisoners can be exercised ay parliament on its own discretion.
Finally, in yet another fascinating case, the CC ruled that citizens could be allowed to protest at night. In this case, petitioners were charged with violating the Assembly and Demonstration Act (ADA) by allegedly staging a demonstration from 1915 hours to 2150 hours. During the criminal proceedings at the lower court, they filed motions asking for a constitutional review of this statute. Article 10 of the ADA states that no one can hold any outdoor assembly or stage any demonstration either before sunrise or after sunset. However the head of the competent police authority may make a special dispensation and grant the permit if advance arrangements are made. The penalty in breach of this provision is a fine of 500 000 Won, penal detention or a minor fine.
The CC noted that the prohibition of night time demonstrations was an appropriate means to achieve a legitimate purpose of protecting the safety and order of society. However it did not accommodate daytime workers or students especially during winter when daytime is shorter. The freedom to demonstrate was thus substantially infringed. In the modern, urbanised and industrialised society, the broad and variable traditional meaning of night time was no longer appropriate, the Constitutional Court reasoned. The court noted that Parliament had the responsibility to determine the most appropriate means to achieve the legislative objective and restrict freedom of expression in the least intrusive manner. The court thus declared the impugned provision unconstitutional. Once again proportionality and necessity were considered by the court. In the Korean system, once the court makes a provision of unconstitutionality in a matter and the legislature does not respond appropriately, the changes made by the court will take effect after the stipulated time!
I have here just discussed a few cases to give the reader a sample of Korean jurisprudence. Compare these with some of our most terrible decisions from both the High Court and the Court of Appeal. I will just mention two recent ones, the Mokone sedition case at the High Court and the Dintwe freedom of speech case at the Court of Appeal. I deal with the latter in full in an upcoming issue of the Commonwealth Law Bulletin. Interestingly, the Court of Appeal in Lesotho recently abolished sedition. In these two Botswana cases, there is absolutely no reference to a human rights framework and no attempt to weigh rights and interests. You cannot determine human rights cases without regard to comparative international law.