. Read the article below and prepare answers for the questions that
follow it, contrasting constitutional review in Korea and the United
States.
Questions about
South Korea’s Constitutional Court
When South Korea’s authoritarian regime collapsed in 1987 after three
decades, the victorious political forces rushed to transform their
country into a liberal constitutional democracy. The Constitution was
quickly revised, and in the process an unfamiliar new institution was
created: the
Korean Constitutional Court – a tribunal composed of judges
with the power to overturn legislative enactments and executive orders
if they were found to be inconsistent with the highest law in the
country, the Constitution.
The Korean Constitutional Court is outside of the hierarchical system
of the ordinary courts, which consist of the Korean Supreme Court and
the lower courts. The Korean Supreme Court hears appeals from judgments
by the Appellate Courts. In contrast, the Korean Constitutional Court
exclusively exercises constitutional review of statutes. Ordinary courts
are barred from so doing, though they may refer constitutional
questions to the Constitutional Court.
The rationales for granting a special court the exclusive power of
judicial review are as follows. First, it strengthens the independence
of the ordinary courts by taking the constitutional review of statutes
away from them, so that they can be free from political influence by
lawmakers. Second, the special court’s efficiency and expediency secures
effective protection of human rights and the Constitution because the
power of judicial review is concentrated with an independent court and
exercised under a unitary procedure.
Unexpectedly, since its creation in 1988, the Constitutional Court
has successfully introduced into the political system a new dimension of
constitutional review, and has substantially helped the democratic
transition in South Korea. Nevertheless, the Constitutional Court has
often aroused resentment and opposition from powerful political elements
in society. It has frequently had to say no to the legislature, the
executive branch, or powerful private entities in its decisions. A very
large proportion of the
high-profile cases brought to the Constitutional
Court have involved intense political controversies, which grew out of
power struggles between opposing political forces.
The dominant characterization of a court as a legal institution leads
to a general belief in judicial objectivity and neutrality, which is
derived from the doctrine of separation of powers, and which makes it
wrong for judges to let their value preferences influence judicial
deliberations. But there is an opposing perspective that in the course
of settling disputes in accordance with existing law, courts often have
no choice but to make new rules. It is this policymaking function, much
more than dispute resolution, which places the judiciary at the center
of controversy.
Source: Cha Dong-wook, “The Constitutional Court: Political or Legal?,” The Korea Herald, (February 1, 2008).