Constitutionalism in the Republic of Korea Unit

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Constitutionalismin the Republic of Korea

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Constitutionshave come to characterize modern democracies in the last twocenturies. The constitution has its origins in the written Englishcivil code that comprised of a set of laws. Various governments allover the world have made the laborious journey towards democracy byadapting western constitutionalism in place of previous law systemsbased on various concepts such as religion or culture. This wave ofwestern constitutionalism swept across east Asia to upstage reigningpolitical systems of laws largely influenced by Confucianism andother traditional ways of thinking. First the concept spread to andthen to China and later Korea which had also adopted Confucianismfrom China.1Confucianism, which largely influenced way of thinking, society,religion and governance in East Asia, had major disagreements withwestern constitutionalism. The main issue being that Confucianismpromoted social stratifications while western constitutionalismpromoted equality of human beings and inherent human rights.2Korea was one of the East Asian countries that were faced by thisirruption of western constitutionalism in the region. This journey oflegal reforms arguably started around the 16thcentury but modern changes can be better traced to 1894 after thefamous Kabo reforms.

Ideally,these reforms set the stage for other constitutional reforms andamendments that were to be put in place in the country over the nextseveral decades. However, the progress of these reforms wasinterrupted by the Cold War as the Korean Peninsula split into twocountries North Korea and South Korea.3The west-affiliated South Korea continued to follow thedemocratization process while the Soviet-backed North Korea leanedtowards communism and is today ranked as one of the countries in theworld with the worst human rights record that remains highlysecretive and suffers under trade embargoes imposed on the country.South Korea on the other hand has progressed very well economicallyand socio-politically. It therefore this journey to democratizationthat this paper traces by highlighting the major milestones andhurdles the country has encountered since Kabo reforms up to now froma political perspective.

Briefhistory of Korea

Koreaexisted as a unitary state under the Choson Dynasty (1392-1910)though it underwent numerous splits and reunification over thecenturies. In the late 19thcentury, Korea under the Choson Dynasty was caught up in thecrossfire of the first Sino-Japanese war (1894-1895).4The Japanese Meiji Restoration, which was western reforms-minded,invaded China under the Qing Empire in a war that sought control overthe strategic Korean peninsula. After six months of war, Japan wonthe war and China lost control of Korea. China’s control over Koreahad been critical in spreading Confucianism but the incoming of Japanas the new regional military and political powerhouse spelled drasticpolitical change in Korea. Japan which had succeeded to initiatewestern reforms in her system through the Meiji restoration was keento initiate similar reforms in Korea.5

However,Japan was not alone in the desire to enact political reforms inKorea. There were several Korean technocrats and politicians who hadpreviously made several attempts to initiate the Japanese-likewestern reforms. These calls emanated from the poor and lowlypeasants who felt excluded by the government in a highly stratifiedsociety under Confucianism influence. Other leaders such as PhillipJaishon had sampled and experienced western constitutionalism andwere eager to introduce such changes in Korea.6One such greater leader who initiated the reform agenda was areligious leader named Choe. As a religious leader of the Chengdyoreligious movement, he sought to unite the people under a nationalismand social reform agenda. This unification led to the formation of apro-Japanese independence movement known as the Progressive Party(Kaehwadang). In 1884, the movement staged a coup that did not lastlong as Chinese forces intervened. However, this did not end theirresolve.7

Adecade later, the pro-independence group staged a rebellion namedDongphak revolution or simply Dongphak peasant movement. Therebellion was triggered by increased taxation to farmers who felt aregime change was the only way out.8The Cheondogyo also claimed influence and connection to therevolution.9An attempt by China to suppress the rebellion angered Japaneseauthorities as it violated the Convention of Tientsten between thetwo countries that had provisions on military engagements in Korea.In response, Japan sent in her army to Korea to support the rebelliontriggering the first Sino-Japanese war that also ushered in the Kaboreforms. It is on the background of the war and frozen Sino-Japaneserelations and under Japanese influence that these Korean politicalreforms took place.

Inspite of Japan’s supporting the rebellion and Korea’sindependence from China, the majority of Korean leaders were noteager to be dominated by Japan. The nationalistic ideals that hadbeen triggered by the Dongphak movement were still alive and thusover-domineering rule by the Japanese military that remainedstationed in the country after the Sino-Japanese fueled reformdemands.10Additionally, leaders and scholars who had spent time in the US andJapan had a better understanding of the need for Korea to remainsovereign in order to achieve political, social and economic successjust like the US and Japan.11At the same time, Japanese leaders were keen to exert itsgeopolitical influence in the region and thus instigated the Kaboreforms as way of stamping out the Chinese influence.12

Reforms1894-1900

TheKabo reforms (Kabor referring to the year 1894), which took placeunder the Qing dynasty, were steered by an advisory council headed byKim Hongjip. Some scholars indicate that these reforms were tooradical for Korea at that time and hence were forced Japan whileothers argue that Korea initiated the reforms willingly. The reformsincluded over 210 articles and were enacted in three phases.

Thefirst phase contained recommendations from the Japanese government.It included denouncing unfair treaties with China, introduction ofmodern public schools, introduction of meritocracy in awardinggovernment positions, reduction in king’s responsibilities with astrengthened parliament (constitutional monarchy), new monetarysystems, banning underage marriages among others. The second phase ofreforms completed in December 1894 to July 1895 addressed matters ofa new cabinet, reorganization of administrative structures,reorganization of the judiciary, reorganization of the police and themilitary as well changes in financial institutions. The second phasewas interrupted by the assassination of Queen Min by Japanese agents.The assassination forced King Gojing to temporarily relocate to theRussian embassy in Seoul for fear over his life. The third phase ofreforms enacted several acts that addressed among others banningslavery and liberalizing trade.

Basically,the reforms set to combine western ideas of codified laws and theexisting customs in Korea. The Japanese influence in the Koba reformswas not only driven by Japanese ideals of codified laws but alsodriven by Korean culture. In this case, the Japanese influenced theKoreans to codify their culture into a modern legal order. 13This is very different from some of accusations leveled against theJapanese colonizers mainly by the Dongphak movement that they hadapplied imperialistic tactics witnessed elsewhere in Africa, America,Canada and Australia where native’s culture and customs were deemedprimitive and the subjects were assimilated into new cultures andcustoms.14Thus, in Korea, matters of land ownership, slave ownership, whichwere perceived to follow western ideals, were accompanied byethnological issues in the reforms such as marriages, mourning andfuneral rites.15Again, slavery was abolished and position of the yangban as thedominant social class was ended. However, these reforms only lastedup to 1896.

PostKabo reforms

Thisperiod is dominated by failure of the Kabo reforms and activities ofthe independence club. King Kojong disbanded the cabinet of ministersthat was supposed to cap his powers. He also not interested inRussia’s attempts to interfere with the independence of the countryas were the commoners. The pursuit of a new Korean identity led toanother set of conservative reforms known as the Kwangmu reforms.Under these reforms, Kojong changed his reign tie to Kwangmu anddeclared his kingdom the empire of great Korea with him as emperor. The reforms came in the form of a new constitution that sought tostrike a balance between modernization and tradition and creatingKorean laws.

Forexample, a new land ownership law as drafted as well as new nationalland and population surveys being conducted in 1898-1901. All thesemeasures were geared towards galvanizing the monarch’s financialpower. Some industries were nationalized in order to keep out foreignbusies interests.16Members of the independence club who were vocally opposed to thesereforms, especially the dissolution of cabinet, were imprisoned. Thisgave the emperor more space to impose his rule on the people. Suchmoves alienated the emperor from his loyalists, the public and eventhe foreign powers mainly Russia and Japan.17

Inresponse to the excesses of the emperor, a group of scholars andcitizens created an ‘enlightenment movement’ to inform andsensitize the public on governance. The majority of the leadership ofthis movement comprised of former independence club members. Theymobilized masses and proposed radical measures to streamlinegovernance and social order. One of the leaders, Yu Kiljin wrotewidely on leadership ethics and the need for commoners to enroll inmodern education to qualify for better jobs. Again, education wasused to cultivate patriotism advocating texts celebrating Koreanlegends and myths which.18Another leader, Pak Unisk, who was considered a moderate reformist,developed new philosophical concepts combining Darwinism, Marxism andConfucian ideologies. Central to his philosophy was viewing politicalorganization of society as a family.19This would, in one way or another, harmonize society and evokenationalistic tendencies. However, this did not last long as theJapanese and the Russians were in conflict (1904-05) over control ofKorea and Manchuria. In resolving the conflict, Japan ceded Manchuriaand took over Korea.

1905-1945

TheJapanese government imposed a protectorate on Korea on 17thNovember 1905 and assumed control of the country’s foreign policyand posted her military there. In 1910, Japan fully annexed thePeninsula. Although emperor Kojong was opposed to the annexation, hisministers were forced to sign a five-point treaty with his sealgiving Japan’s occupation some legitimacy.20There was nationwide opposition to the development. In response, thecolonizers adopted a model borrowed from British-Egypt relationshipand retained a Korean monarchy. Japan’s political mandate in Koreawas placed under a resident general.21The rebellious factions in Korea managed to murder the residentgeneral. This turned the country into a military state with politicaland social organizations banned as Japan sought to suppress dissent.

Onthe 22ndof August 1910, Japanese resident general Terauchi Masatake signed atreaty on Korea’s annexation that ended the Chosun Dynasty.Traditionally, Koreans perceived the Japanese to be inferior to themhence they did not submit willfully.22Violence and threats were used persistently to suppress Koreans andmake them adopt Japanese culture and laws. Thousands of Koreans wererelocated to Japan to work as slave with some women working as sexslave to Japanese soldiers based in Korea. As a result, relationshipworsened between Koreans and Japanese. Patriotic Koreans sabotagedJapanese rule, more so, the forced cultural assimilation.23In the end, capitalistic ideals in Korea did not flourish as much asin Japan. With Korea still a Japanese colony, the country sung thetune of her colonial master during the First World War and there nomajor constitutional changes. However, in 1919, some Korean leaderssigned a declaration of independence to establish a provisionalgovernment of Korea exiled in Shanghai that did not last. This wouldbe named as the March first independence movement that would playsignificant roles in subsequent governments. Major changes came withthe end to the Second World War of 1945 when Japan lost the war andKorea gained independence.24

Creationof South Korea and the first constitution

Theend of the Second World War saw Japan retreat and surrender tocoalition forces. This also meant giving up any territories that shecontrolled including Korea. With the Soviets and the Americaninvolved in liberating Korea, disagreement over the creation of atrustee government by both parties led to creation of two parallelgovernments Soviet backed North Korea and UN-backed South Korea.Although this division was meant to be temporary, it still lives on.The first Korean republic was established on 15 August 1948 withSyngman Rhee as the first president.25

Toguide the nation into a path of constitutionalism was a newconstitution based on the semi-presidential representative democracy(Weimar system) borrowed from Germany. The constitution was draftedby Dr. Chin-O Yu and was first adopted on July 17, 1948.26The original constitution was largely informed by the wishes of theFirst March Movement that were closely similar to the Weimar systemthat placed emphasis on social justice largely aimed at promotingequality, education, public harmony and individual capabilities amongothers.27 However, President Rhee rejected the first draft of the constitutionas it included a parliamentary system while the president favored apresidential system similar to the American system with a strongpresidency.28

Atthe same time, Rhee’s government was keen to reunite the north andthe south through military means. With the country secretly spoilingfor war, there was little time and fewer resources to attend to otherconstitutional provisions. Again all government agencies weremandated to force through reunification agendas with the ROKgovernment perceiving the north both as a partner in negotiatingreunification and a subversive organization who activities can becensured by law. Thus the first constitution recognized ROK as theonly legitimate government in the Korean peninsula with a mandate tounite the whole of Korea.29With such preoccupations of reunification, some provisions of theconstitutions such as separation of powers and social justicesuffered.

Originally,the constitution made clear provisions for the various arms ofgovernment and their roles. The parliament was mandated with makinglaws and formulating a constitution. Parliament was also charged withthe role of electing the president as opposed to a direct popularvote by the people. The state council made up of the president,prime minister and state councilors was the highest decision makingorgan within the executive.30This was primarily intended to reduce the executive powers of thepresidency to prevent the creation of a dictatorial regime where thepresidency possesses too much power. However, President Rhee was notcontent with this provision and thus directly undermined theconstitution by ignoring the other executive organs in decisionmaking. He further used his position to suppress the opposition inthe national assembly and opposition parties that are the mainstaysof democratic systems.31Such differences in the adoption of the constitution vis a vis thetheory in writing brought about a total of nine constitutionalamendments whereby in five instances it was almost fully rewritten.

Firstamendment- 1952

Asa result of President Rhee wielding too much power, there was apolitical wave in the country that persistently pushed for reformsthat culminated in the first constitutional amendments of 1952. Whilesome activists felt that president had too much power against theconstitution, his supporters were keen to give executive powers tothe presidency alone in the same way as other western nations such asthe US had at that time. To his supporters, this would ultimatelydefeat the calls by the opposition that the president wasoverstepping his powers.32The timing of the amendment also highly influenced the process.

Theamendments were suggested at the height of the Korea war (1950-53).The war was fought between a UN backed south against the Soviet andChina-backed north. The war was mainly fought over the legitimacy ofeach of the Korean governments precipitated by the tensions betweenthe US and the Soviets that emerged after the end of the Second WorldWar that turned out into the Cold War. During this war, PresidentRhee faced a huge opposition in the national assembly that mademaking decisions in a time of war very hard for him. Gripped by thefear that the war posed to the country, members of the opposition inin the national assembly were easily cowed into passing theamendments. In fact, the national assembly voted to carry out theamendments was made in the middle of the night with all 166 memberspresent.33All members voted for the amendment. Among internationalcommentators, there was general agreement that constitutionalism asit was then in the first republic had failed. Gregory Henderson wroteabout to say:

America’sattempt in Korea to build new cohesion around democratic institutionshad, in an embattled place and unplanned setting, been rapidlyovergrown by autocracy…the institutions of democracy were eitherdisregarded, overridden, corrupted, or turned against themselves34

Theassembly voted to amend one article. This was article 53 of the 1948constitution which provided for an indirect vote for the president bythe national assembly. It was replaced with a direct vote by thepublic. Such ease in passing the law was also simplified by anearlier declaration of martial law that banned all politicalactivity. With fear over escalating war and government machinations,president was easily reelected through popular vote with a promise toend the war and reunify Korea with the backing of the UN. However,President Rhee was not done with the amendments.

Secondamendments-1954

PresidentRhee pushed for further amendments to the constitution. This timeround, he wanted the removal of presidential terms limits from theconstitution in order to ride on his popularity among the citizenrybased on his commitment to the independence of Korea during thecolonial era.35However, this amendment was even more acrimonious. A shockingirregularity allowed the amendment bill to pass in the nationalassembly although it had not attained the constitutionally mandatedtwo-thirds majority. Thus, the bill passed that allowed PresidentRhee a chance to be elected for an additional two terms. Theamendment also had provisions for creation of a referendum withpropaganda to strengthen democracy. His goals were not to be as hewas forced to resign following relentless protests and revoltsagainst a disputed election in 1960. This gave Koreans another chanceto amend the constitution.

Thirdamendment-1960

The1960 protests ushered in a civil revolution. With the Korean peoplewell informed on constitutionalism, the rigged elections of 1960 gavethem a chance to enforce the need to respect democracy in writing andin law. With Rhee out of the way, a new constitution was put inplace. The changes were so drastic that the new government was namedthe second republic.36The amendments introduced a parliamentary system thereby eliminatingthe risk of dictatorship by presidents. A bicameral parliament wasestablished and the powers of the president were vastly reduced adthe post of a prime minister was created. To further avert the risksof rigged elections, an Electoral Commission was constitutionalized.Another issue addressed by the amendments pertained to thestrengthening the safeguards of fundamental rights. Any legislativelimitations of these basic human rights such as martial law which hadbeen used by President Rhee in the past were removed. Again, tofurther prevent arbitrary constitutional amendments, a constitutionalcourt with the power of constitutional review was put into placethough it never achieved its objectives due to further amendments.37However, the rush to create a new constitution created severalproblems. Differing views were not accommodated in the newconstitution and there were not enough consultations for provide forprocedural justice.

Fourthamendment

Afourth revision was thus put in place same year to accommodatelegislation on retroactive punishment for election irregularities,corruption and misappropriation of public funds. The amendment also“provided for a constitutional exception to the principlesprohibiting ex-post facto penalties.”38Even with two amendments in one year, the second republic did notlast long as the government headed by the nearly-ceremonialpresident, Yun Po Sun and Prime Minister Chang Myon was ousted by themilitary led by Major General Park Chung Lee on 16 May 1963 followingpolitical instability.39

Withnew military leadership, the constitution was subject to a fifthamendment and with it came the third republic. With the military inpower, parliament was dissolved and all constitutional bodies wereinvalid meaning that the process of making a government stared anew.The military authorities drafted the fifth constitution in 1962 withthe major purpose being reinstatement of a presidential system withthe president elected by popular vote. General Chung-Lee was alsoeager to reaffirm South Koreas position as a democratic state thatupholds capitalism as an economic system by modifying the economicprovisions of the constitution and adopting anti-communism as anational policy. With the assembly already dissolved, theconstitution could only be passed through a referendum garnering over78% of the votes. General Park viewed of the 1963 presidentialelections and won narrowly.40

Thethird republic helped normalize constitutionalism in ROK. PresidentPark pursued a different path from previous governments by makingeconomic growth a serious priority as opposed to reunification. Hisreign thus adopted a slogan “DevelopmentFirst, Unification Later&quotwhich saw formulation of economic policies that encouraged ForeignDirect Investment (FDI) mainly from Japan, US and other westernnations.41His sound economic policies saw him elected into office for anotherterm in 1967. At that time, the presidency was limited to two terms.Towards the end of his second term, the president commissioned thesixth amendment to the constitution in 1969.

Thissixth amendment was primarily intended to extend presidential termlimit for general cum President Park. Members of the opposition inthe assembly were fiercely opposed to the new amendments of theconstitution. To avoid losing the constitution amendment motion inthe national assembly, President Park convened assembly members ofhis party away from parliament and at night to pass the motion.Attempts by the opposition members of the assembly to storm thesession and contest the voting were too late.42Thus, the motion to amend the constitution was passed and theamendment attained through a national referendum that approvedextending the presidential term limits to three terms. The referendumresults were highly contested and demonstrations broke out all overthe county. In spite of the huge opposition to the Park presidency,he won the 1971 elections though the opposition occupied the majorityof the seats in parliament.43

Withthe opposition controlling parliament, the president was threatened.On December 6, 1971, martial law was imposed occasioned by Americandeclaration of attempts at reunification of the north and south whichwas directly contrary to Park’s stand. The declaration of martiallaw also dissolved parliament and thereby technically addressing thethreat of opposition. Without a parliament, President Park planned toforce through another constitutional amendment to secure unlimitedpresidential term. This would mean that the amendment was not open todebate but would be presented to the public for a referendum withoutdebate in 1972.

Nonetheless,the president fearing public reprisal changed the electoral process.This time round, the president changed the constitution from a directpopular for the presidency vote to an indirect process. A new specialelectoral body was created whose members would be elected directly bypopular vote but the candidates were to be thoroughly screened byPresident Park’s regime.44This did not give the public much choice in the candidates. As aresult, the president was elected again by the electoral body.

Anotheramendment was thus made to the constitution. Ideally, thepresidential term was extended to six years with room for furtherextension. Again, the president was given powers to override otherbranches of the government. New restrictions on the Bill of Rightswere introduced that directly sought to limit the activities of theopposition parties and fight government criticism. It these majorrestrictive revisions that created what came to be known as thefourth republic (1972-1979).45This republic was famous for limiting democratic freedoms but at thesame time for economic progression in the country. Education wasconverted into a government propaganda program and the judiciary lostits independence to the regime. As such, political activists andstudent bodies staged many protests that helped to awaken thedemocratic spirit and create awareness of political rights. Thiscontinued for several years until Park’s assassination in 1979.

Fifthrepublic

Theend of Park’s reign spelled another chance for constitutionalamendment for South Korea in 1980. The assassination of the presidentby his security chief allowed the prime minister to ascent to thepresidency. However, he prime minister was overthrown after just sixdays by Major General Chun Doo-hwan on December 12. The militaryregime sought to distance itself from dictatorial tendenciesassociated with military rulers by amending the constitution. By May1980, the country faced widespread protests mainly from studentsopposed to military rule. In response, the government imposed martiallaw and major opposition leaders were arrested. The national assemblywas dissolved to be replaced by the National Defense Emergency PolicyCommittee. The committee then voted Major General Chun Doo-hwan aspresident by September 1980 which marked the beginning of the fifthrepublic.46

Thefifth republic embarked on significant constitutional amendments. Thechanges included maintaining a presidential system with thepresidential term limit set at one seven-year term electedindirectly. The national assembly was given more powers to controlthe presidency. One defining article of the constitution pertained tothe extension of the presidential term limit. The constitution statedthat any changes or extension of the presidential term limit wouldnot apply to the president in office at that time. However, suchchanges did little to appease the citizenry. Protests anddemonstrations persisted towards the end of the decade in 1987, thepresidency conceded to public demands and resigned. This marked a newbeginning in the democratization process of South Korea wheregovernment showed a response to popular public demands and protestsand political activism was shown to bear results.47

Sixthrepublic

Thistime round, the constitutional amendments involved majorcollaboration and debate between the military government and theopposition as well as other special interest groups such as politicalscholars and activists. This was a huge change from the pastconstitutional amendments where incumbent regimes sought to makechanges to the constitution to serve their own interests andspecifically retain power through unjust means masked in facades oflegality.48The amendments were also made in accordance with the existingconstitution that stipulated the procedures for any constitutionalamendment. Again, the revisions reinstated election by popular votesfor presidents and a presidential term set to one five-year term. Thepower of the national was strengthened in order to protect individualrights and provide adequate checks and balances to the presidency.49

The1987 elections were held under the new constitution. The incumbent,President Chun, made history by handing over power peacefully afterlosing the elections narrowly to his military compatriot in theopposition, Roh Tae-woo. This marked another significant moment forthe people of South Korea to start believing in the constitution as ameans of creating political order and democracy as opposed to being ameans by which autocratic leaders could legalize their unfair hold onpower. Nonetheless, this trust in the constitutional system couldnot be trusted fully because Roh also had a military affiliation andhad acted together with Chun in the coup after generals Park’sassassination.

The1987 constitutional amendments were the last. The Korean constitutionhas remained as it although new bills have been added. It is underthis constitution made almost three decades ago that has overseenimpressive economic growth in the country. The country has alsoemerged as a global player and has somehow abandoned itsreunification ambitions with the North given that the north hasdeviated democratically and economically from the path of the South.50Again, ROK has emerged as an important global and regional player.Nonetheless, there have been discussions in ROK’s political circlesover potential amendments but no active measures have been takentowards amendments.

Keyconstitutional issues in Korea

Separationof powers

Separationof powers has been one of the most contentious issues in the journeyto constitutionalism in ROK. Ideally, since the establishment of therepublic, there have existed strong executives and weak legislatures.These assemblies have been used as a rubber stamp by authoritarianleaders specifically to extend their terms in office and makeconstitutional amendments to suit their own selfish needs. This hasbeen accomplished easily because for many terms prior to 1987,governments held majority of seats in parliament. In such asituation, the legislature is not run on the basis of healthy debateand dialogue but rather a procedural formality where tyranny of themajority is manifest.51

Throughseparation of powers, there is greater chance to protect basic humanrights from the excesses of the government. In the English law thatSouth Korea has adopted, separation of powers is one of thefundamental principles of constitutionalism. This concept can betraced to Greek thinker Aristotle who wrote that every constitutionsshould be made up of three parts the deliberative, magisterial andjudicial. John Locke and Montesquie have reiterated that the powersof these divisions should be separated. However, how individualgovernments pursue to enforce the separation of powers is differentfrom government to government.52

Passivejudiciary

Theconstitutional process in ROK has been characterized by passivejudicial review process. Under constitutionalism, the judiciaryensures that government activities and legislative processes arewithin the boundaries of the constitution. In some of theconstitutional amendments under military rule as discussed above, theconstitutionalism and legality of some amendments or governmentactions were not exposed to a judicial review process making theirlegality questionable.53Although a constitutional court was also established and abolished,the judicial review process itself was not targeted.in fact, allmajor constitutional amendments concentrated on the executive’srelationship with the legislature.

Duringthe different republics, the constitutional judicial review processwas most visible in only seven cases.54Only two laws were determined to be unconstitutional theAgricultural Land Reform Act, which limited appeals to the Court ofAppeal only, and article 9(1) of the Special Decree for CriminalPunishment Under Emergency.55Another major case that the constitutional court handled thathighlighted the role of the judicial review process pertains to theKukje case in 1993. In this case, the court intervened through aruling in which the president’s intervention to liquidate a privatecompany was ruled as illegal. This set a strong path for futuregovernment interactions with private entities.56

Conclusion

Theprocess of constitutionalism for the ROK has been one full ofcontroversies. The numerous amendments to the constitutions to servepolitical interests over the years have eroded public trust in theconstitution as a means of achieving democracy and protecting humanrights as intended. Ideally, a constitution provides a framework foreffective government and means to protect the individual rights andprovide a guideline on the distribution of political power. However,the turning point came in the final revision of 1987 where agreementto make amendments was arrived at by the opposition and otherstakeholders as opposed to the decisions being made by the incumbentpresident as was the case before.

Therefore,the experiences of ROK clearly demonstrate that political changeprecedes legal change. Thus there is need for new governments topursue political change in the right away to achieved desired legalchanges. At the same time, legal changes promote political changewhich captures the symbiotic relationship between the two. It isclear that the constitution should not be used as a tool by a fewindividuals in government to subdue the population or simply achievepersonal goals. The state is clearly bigger than the individuals andthe law should be applied to achieve mutual interests in any givennation.

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1 Marie Seong-Hak Kim, “Law and Custom under the Chosŏn Dynasty and Colonial Korea: A Comparative Perspective,” The Journal of Asian Studies 66, no. 4( 2007): 1068.

2 Ibid, 1068.

3 Dae-kyu Yoon, “New developments in Korean constitutionalism: changes and prospects,” Pacificrim law &amp policy review 4, no. 2 (1995): 398.

4 Kim, Marie Seong-Hak, 1067.

5 Mark Caprio, Japanese Assimilation Policies in Colonial Korea, 1910-1945, (Washington DC: University of Washington Press, 2014), 50.

6 Hakjoon Kim, “The influence of the American constitution on south Korean constitutional development since 1948,” Asian Perspective 16, no. 2 (1992), 26

7 Caprio, 71

8 Kristen Bell, Cheondogyo and the Donghak Revolution: The (un)Making of a Religion,” Korean journal 44. no.2

9(2004): 127.

9 Ibid 124.

10 ibid 127.

11 Mary Connor, The Koreas, (New York: ABC-CLIO 2009) 184

12 Connor, 184

13 Kim, Marie Seong-Hak, 1077

14 Chung-gil Kim, History of Korea, (New York, Greenwood Publishing Group, 2005) 25.

15 Kim, Marie Seong-Hak, 1078.

16 Kim, Chung-gil,118.

17 ibid

18 Leighanne Yuh, “In Defense of the State: The Kabo Reforms, Education, and Legitimacy,” International Journal of Korean History 18, no. 2 (2013): 92.

19 Kenneth Wells, Korea: outline of a civilization (New York: Brill: 2015), 141.

20 Jongcheol KIm, “Constitutional law” In Korea legislation Research Institute (ed.) Introduction to Korean Law (New York: Springer, 2012) 31.

21 Kim Chung-gil, 125

22Jinwung Kim, A History of Korea: From &quotLand of the Morning Calm&quot to States in Conflict (Bloomington: Indiana University Press 2012) 323.

23 ibid.

24 Kim Chungil, 186.

25 Yoon, 401

26 Connor, Mary 28.

27 Kun Yang Judicial Review and Social Change in the Korean Democratizing Process. The American Journal of Comparative Law 41, no. 1 (1993):2

28 Kim, Hanjook 28-29.

29 Kim Jongcheol 32

30 Yoon 402

31 ibid

32 Connor, Mary, 42

33 Yuh, Leighanne 89

34 Henderson 168 cited In West, James, and Dae-Kyu Yoon, The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex? The American Journal of Comparative Law 40, no. 1 (1992) 73.

35 West and Yoon 70

36 Kang Ro Lee, Bureaucratic-Mobilizational regime: The Yushin system In South Korea, 1972-1979. Asian Perspective 14, no. 2 (1990): 201.

37 Kim, Jongcheol 34

38 Yoon, Dae-Kyu 401

39 Kenneth Wells, Korea: outline of a civilization, (New York: Brill: 2015) 71

40 Wong

41Uk Heo and Shale Horowitz, Conflict in Asia: Korea, China-Taiwan, and India-Pakistan (New York: Greenwood publishing 2003),23

42 Myung-soon Shin, Democratic transition and consolidation in Korean politics. Korean Observer xxvi, no. 2 (1996): 171

43Kang Ro Lee, “Bureaucratic-Mobilizational regime: The Yushin system In South Korea, 1972-1979,” Asian Perspective 14, no. 2 (1990):198.

44 Yoon, 402

45 Lee, Kang Ro, 201

46 Yoon, Dae-kyu, 399

47 Yoon, Dae-kyu, 400

48 Shin, M. 176

49 Yuh, 87

50 Lord Irvine, Human Rights, Constitutional Law and the Development of the English Legal System: Selected Essays. (London: Hart Publishing 2003)121.

51 Yoon 405.

52 Irvine 160

53 Yoon, Dae-kyu 407

54 Yang, Kun, 2.

55 Yoon, Dae-Kyu 407.

56 James West, Kukje and beyond: constitutionalism and the market, World constitutional law review, 3 (1998): 333.

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