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[Voice] Does the Constitution need changing?

After an election in which both main candidates called for a revision ...

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Published : 2013-08-26 20:36
Updated : 2013-08-26 20:37

In an atmosphere of intense dispute and division, the issue of constitutional revision would seem to be a rare source of agreement across the political aisle.

Both then-Saenuri Party candidate Park Geun-hye and her Democratic Party challenger Moon Jae-in included a constitutional amendment in their platforms in last year’s presidential campaign. This common ground was later built upon when the parties agreed in April to form a special committee, the first of its kind, to discuss the issue. Then, in July, National Assembly Speaker Rep. Kang Chang-hee suggested a rough timeframe of within the current Assembly’s term to settle the matter that has arisen periodically since the 1987 revision that gave birth to today’s democratic state.

Perhaps more than any other aspect of the Constitution, the status of the presidency has been the subject of scrutiny. Despite backing off the issue since taking office, Park went on record during her campaign as being in favor of allowing the president to serve two four-year terms rather than a single five-year tenure. Her rival Moon, meanwhile, while sharing Park’s position, also called for the powers of the office to be reduced.
The Constitutional Court in Jongno, Seoul (The Korea Herald file)

Kim Youn-sik, a law professor at Sungshin Women’s University, told The Korea Herald the presidency was just one of several respects in which the Constitution was out of date, likening the country’s relationship with the document to a child that had outgrown its clothes.

“For example, we need to consider a new way to decentralize the overly powerful presidential power. At the same time, the clauses of the presidential term need to be discussed. The current clause is a result of the historical lesson in which Korean dictators increased presidential terms arbitrarily,” said Kim.

“However, as Korean democracy has been firmly developed, we are less worried about dictatorship. On the other hand, the current presidential term is too short to achieve the original policy goals that are promised. Thus, too much power and too short a time lead to undesirable situations such as early lame duck and policy changes that occur too often.”

Yet the organization of government is not the most urgent concern, he added. In his view, past dictatorships have meant too much attention has been paid to political structures, to the detriment of social and economic justice. Any upcoming constitutional revision, then, should prioritize these concerns.

“To make the current democracy more stable and sustainable, the new amendment needs to focus on social justice such as economic democracy and social rights,” said Kim, going as far as to say democracy itself could be threatened otherwise. “One of most dangerous factors in Korean society is the polarization of the poor and the rich. Without fair distribution of welfare, Korean democracy will suffer the risks of dictatorship as seen in Nazi Germany.”

But not all legal scholars see such need to change the founding document of the Sixth Republic. Kyung Hee University constitutional law professor Noh Dong-il is among those who believe it is not the Constitution that is the problem, but the quality of the political establishment. He argues that there is “no empirical evidence that failures in Korean politics stem from the constitutional system.”

“Politicians in Korea find faults with the system, just trying to avoid the true causes of the problems, the shortcomings of themselves,” said Noh.

“I do not think that constitutional reform alone, without changing the political extremism among politicians, will change the political stalemate in Korea. Figuratively speaking, will a student be able to do better on a test, without working hard, if he gets a new Mont Blanc fountain pen instead of MonAmi ballpoint pen? I don’t think so.”

From this perspective, the Constitution can only really be as effective as its adherents. In Noh’s opinion, however, the Korean political establishment and general public alike have persistently demonstrated a lack of respect for the document.

“The important thing is whether and how you observe and follow the rules and the systems proscribed in the constitution,” said Noh. “There has been constant disregard, among the politicians as well as the ordinary citizens, of the rules proscribed by the constitution, including the election results. Political turmoil surrounding the Kim, Roh and Lee administrations and current Park administration is the evidence thereof. If things like the Bush v. Gore incident happened in Korea, we would have a civil war.”

Observance of the Constitution is of course not the only factor in determining how the text plays out in the real world. The Constitutional Court, having the authority to rule on the constitutionality of laws and hear public petitions, is also crucially important. Established in 1988, the court has settled more than 20,000 cases.

Among its significant rulings was its finding of the government to be in breach of the Constitution for not doing enough to seek compensation from Japan on behalf of the comfort women. The court has also often been a force for liberalization and social change, such as when it overturned the centuries-old ban on marriage between distantly related members of the same paternal lineage in 1997.

“Through the brilliant activities of the Constitutional Court since 1988, the Constitution has been actualized and performed in political and social reality and has found her vitality and normative power as well,” said Bang Seung-ju, a professor of constitutional law at Hanyang University.

But Bang added that there was nevertheless a strong case for constitutional revision to address a number of issues with the court’s current setup.

“According to the current Constitutional Act, filing a constitutional complaint against the decisions of (ordinary) courts is precluded. Furthermore, the Supreme Court has partial power to adjudicate the constitutionality of regulations, which are made by administration. Therefore competence or jurisdictional conflicts between the two constitutional organs happen often,” he said.

He recommended several specific changes to the function of the court.

“The exclusion of decisions of the courts from the objectives of the constitutional complaint, due to the massive opposition from the Supreme Court at the time of passage of the Constitutional Court Act in 1988, should be changed,” he said.

“From the point of view of better actualizing the basic rights of people, the decisions of the courts should be included in the objectives of the Constitutional complaint. From the aspect of judicial clearness and stability, all constitutional adjudications, including the constitutionality of regulations, should be decided exclusively by the Constitutional Court.”

By John Power (john.power@heraldcorp.com)

Reader’s voice

Legalizing euthanasia ...

Definitely no, for me. Allowing it will only bring up an environment where people find it normal to end your time or life when you think that you cannot go on in life any longer. Where is the perseverance? Where is the hope and faith in all of those who we love? We were born naturally and freely and we should die naturally and freely! Everyone has the right to live ― we should not just pass this up.

― Freddie Alma Simene, Incheon

Once I saw a documentary, “Choosing to Die” by author Terry Pratchett. It starts with a confession. Pratchett tells the audience that he’s suffering from Alzheimer’s and is scared of becoming dependent and burdensome on his family. Then he travels to Switzerland, where assisted death and euthanasia have been legalized, as it also has in Belgium and the Netherlands. Terry and some families who were in favor of euthanasia and other forms of assisted death criticize the British government, arguing that the U.K.’s law on this subject is ridiculously strict and limited human liberty.

Since we humans were born without being given a choice, should death be done in natural order regardless how much pain the patients suffer and how much money the patients and the family must spend on treatment? This is the question this documentary seeks to address.

I also agree on the matter of choice. I value the choice that could be given to patients to choose the way they die. When given more options on death, I reckon that the people may consider more carefully the given options and the possibilities of preparing for death.

To the extent of giving it as an option, I am in favor of legalizing euthanasia. But what concerns me is the side effects. It is obvious that euthanasia costs money. It probably costs a lot more than the cost of the medical treatments. Some people will stand to make a fortune out of euthanasia.

In addition to this, legalization of euthanasia may lead society to value nihilism. Euthanasia should be restricted to being one of the last “treatment” options for those patients who are suffering from incurable diseases. But when it is legalized, it is obvious that euthanasia can be given on demand even if this is legally banned. Some people who are in despair or have depression may go for this option to end their lives.

I pause to say that birth itself wasn’t made by one’s will and choice. A person was born to live. Death, for religious reasons and the ethical imperative to live “happily,” should be done in a natural way and, hence, in a passive way. If euthanasia is legalized, I am quite sure that this will cause a number of side effects. I am not against it. But I think a number of aspects and possibilities should be considered and studied thoughtfully ― although it seems to be barely feasible - in order to legalize euthanasia.

― Yang Seon-young

Subsidizing ICT firms ...

There are very few borders in the ICT sector ― if they can’t make the best product or a product people want to use, that’s their problem. Kakao Talk didn’t need a handout, I don’t think.

That said, there is a Korean legacy of getting handouts from the government in times of need. The post-World War II period during which Samsung and Lucky Goldstar grew enormously is one way in which the government plays favorites.

― Chris Backe, Thailand

Cost of sports events ...

The Korean local governments have also been caught unprepared when it comes to having enough hotels and restaurants for the influx of visitors. They also lack transportation in many areas. Hopefully this won’t happen at the 2018 Olympics, but who is in charge there?

― Stacy Metzger, Seoul, via Facebook