Judicial politics

1. Judicial politics • What explains the “high equilibrium” judicial review in Korea? 2. Has judicial review contributed to consolidating democracy in Korea?

2. Democratic Party Women DelegationWelcome to Korean Politics class!! • CHO Bae Sook, Member of Supreme Executive Council of Democratic Party; three-term member of National Assembly; member of Planning & Finance Committee of National Assembly; former Chair of Culture and Tourism Committee of National Assembly. Graduated from Seoul National University Law School; first female Prosecutor, Seoul Higher Court judge; president of Women's Bar Association • YOU Seung Hee, PhD, Chair of National Women's Committee of the Democratic Party; former member of National Assembly; Member of Science, Information & Communications Technology Committee during 17th National Assembly;  Director of Women’s Leadership Center of the Democratic Party. Graduated from Ewha Womens University & received a doctorate in public administration from HanYang University • CHUNG Choon Saeng, Director of Women's Bureau of Democratic Party

3. Important Announcements (posted on the course webpage) 1.    Readings: I will limit the number of readings for each class to two. For Thursday class, chapter 10 (Diamond & Shin) will be removed from reading assignment.2.    Attendance policy: I will not increase the penalty but very frequently check attendance and give extra credit for attendance. 3. Quiz policy 4. Midterm 5. Final 6. Recommendation letter

4. Judicial Review • Decline of parliamentary sovereignty • Rise of constitutionalism, safeguarded by judicial review: -Even an elected government cannot suppress basic liberties. • Paradox: One unelected governmental body tells an elected body that its will is incompatible with fundamental aspirations of the people. • Tension between democracy and constitutionalism

5. Type of judicial review body and access Centralized Decentralized Open access Limited access

6. Authorities of Constitutional Court and Supreme Court Constitution of Republic of Korea Article 107 [Constitutional Review] • (1) When the constitutionality of a law is at issue in trial, the court requests a decision of the Constitutional Court, and judges according to the decision thereof. • (2) The Supreme Court has the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.

7. Constitutional Court • Constitution, Article 111 [Competence, Appointment] • The Constitutional Court is competent to adjudicate the following matters: 1) The unconstitutionality of law upon the request of the courts; 2) Impeachment; 3) Dissolution of a political party; 4) Disputes about the jurisdictions between State agencies,between State agencies and local governments, and between local governments, 5) Petitions relating to the Constitution as prescribed by law.

8. Constitutional Court Constitution, Article 111 [Competence, Appointment] (2) The Constitutional Court is composed of nine adjudicators qualified to be court judges, and they are appointed by the President. (3) Among the adjudicators referred to in Paragraph (2), three are appointed from persons selected by the National Assembly, and three appointed from persons nominated by the Chief Justice. (4) The head of the Constitutional Court is appointed by the President from among the adjudicators with the consent of the National Assembly.

9. Independence of Judges and the Court • Article 112 [Term, Incompatibility] • The term of office of the adjudicators of the Constitutional Court is six years, and they may be reappointed under the conditions as prescribed by law. • The adjudicators of the Constitutional Court may not join any political party nor participate in political activities. • No adjudicator of the Constitutional Court can be expelled from office except by impeachment or a sentence of imprisonment or heavier punishment. • Article 113 [Majority, Internal Regulations] • When the Constitutional Court makes a decision on the unconstitutionality of a law, impeachment, dissolution of a political party, or a petition relating to the Constitution, the concurrence of at least six adjudicators is required.

10. Case Statistics of the Constitutional Court of Korea(as of Mar 31, 2009)

11. What explains the “high equilibrium” judicial review in Korea? • Constitutional design? • Parties of similar power? • What else?

12. Did the Constitutional Court contribute to democratic consolidation?

13. Tension between (popular) democracy and (liberal) constitutionalism Hahm & Kim: Formal, procedural justice vs. substantive-democratic justice 1st phase of democratization (1987-2002): Happy partnership between constitutionalism and democracy 2nd phase of democratization (2002- ): Heightened tension between constitutionalism and democracy

14. High-Profile Cases • Special law suspending the statute of limitations for two former presidents • “Acting” Prime Minister • Presidential referendum • Presidential impeachment -Influence of candle light vigils & general election results • Capital relocation: -“customary constitution” theory • Comprehensive real estate tax -“discrimination against the married” -conflict of interest?

15. Liberal or conservative? • Mostly liberal • Conservative in some issues:

16. Liberal or conservative? • Mostly liberal • Conservative in some issues: • Labor issues • Comprehensive real estate tax

17. The Judicialization of Politics • Juristocracy? • Reflection of the immature state of Korean democracy? • Inability of the political parties to compromise • Not so immature? • Learning to cope with the tension between democracy and constitutionalism • Citizens’ democratic self-restraint & due respect for the constitutional order