05 September 2008

South Korea's Constitution

Now turning back my attention to South Korea, now that my trip is approaching fast.

I found the official English translation of South Korea's Constitution, posted at the nation's Constitutional Court. Of course, the original Constitution is in Korean, and uses many Chinese characters to clarify concepts. (See preamble at Wikipedia)

Constitution of the Republic of Korea

Wikipedia says that the first Constitution was born in 1948 to establish the South Korean government, then amended nine times since, mostly to allow the President to stand for more re-elections and grab more power than constitutionally allowed. The most infamous of these amendments was the 1972 "Yushin" Constitution, which provided for absolute power of the Presidency, with no term limits at all. It bore frightening similarities to W's unitary executive theory, advocated by none other than John Yoo, a product of South Korea of this very era.

The current Constitution was passed through a referendum in October 1987, as a result of massive pro-democracy protests earlier that year. It is noteworthy in that it provides for freedom of conscience and the right to organized labor, among other things. Economic equity is also an ideal to be pursued by the government. On political issues, the national territory is defined as the Korean Peninsula and its surrounding islands, and this is used to give defecting North Koreans automatic South Korean nationality. The Constitutional Court is itself a product of this Constitution, established in 1988 and declaring hundreds of governmental laws/actions unconstitutional ever since.

The Constitution is influenced by American and European democracies. The separation of powers in three branches of the government, and the President as the head of state, parallels the United States Constitution, though instead of the Vice President, there is a Prime Minister who heads the Cabinet, much like France (though his power is weaker than in France). The separate Constitutional Court is another European-style institution, as in the US its role is played by the Supreme Court.

It is still to be noted that constitutional rights can be qualified as provided by laws, including the National Security Act which bans communist activities and support of North Korea. The National Security Act was used in the past to arrest and execute liberal political opponents, but that is no longer the case. Most South Koreans support revision and weakening of the Act, though few support outright repeal, due to continuing North Korean conflicts. Amnesty International wants it repealed outright. Also, martial law is still allowed, though the President can no longer dissolve the National Assembly. The Korean Wikipedia also says that the Constitutional Court has also ruled that "customary law" can sometimes trump constitutional provisions - much like in European nations, and unlike the US - and that the Constitution is NOT the absolute supreme law of the land.

The 1987 Constitution has been used to affirm the rights of various demographic groups. Married women were allowed to own their own property and retain custody of their children after divorce, and more recently the patriarchal family census register was thrown out in favor of a more egalitarian system (I dwelled on this topic quite a bit last month). For LGBTs, court rulings in 1997 and 2002 declared that the constitutional guarantee of free speech didn't apply to them - but from 2003 on, that has been reversed, leading to outright recognition of transgender rights in 2006. The current legal situation for South Korean LGBTs seems to mirror that of South Africa - strong public disapproval, but expanding legal rights. Foreigners, especially low-wage blue-collar laborers from China, Southeast Asia, and Central Asia, seem to still be left out when it comes to constitutional rights, however.