Interrogating Constitutional Justice
Total Page：16
File Type：pdf, Size：1020Kb
The Sciences Po Series in International Relations and Political Economy Series Editor , Alain Dieckhoff This series consists of works emanating from the foremost French researchers from Sciences Po, Paris. Sciences Po was founded in 1872 and is today one of the most pres- tigious universities for teaching and research in social sciences in France, recognized worldwide. This series focuses on the transformations of the international arena, in a world where the state, though its sovereignty is questioned, reinvents itself. The series explores the effects on international relations and the world economy of regionaliza- tion, globalization (not only of trade and finance but also of culture), and transnational flows at large. This evolution in world affairs sustains a variety of networks from the ideological to the criminal or terrorist. Besides the geopolitical transformations of the globalized planet, the new political economy of the world has a decided impact on its destiny as well, and this series hopes to uncover what that is. Published by Palgrave Macmillan: Politics In China: Moving Frontiers edited by Fran ç oise Mengin and Jean-Louis Rocca Tropical Forests, International Jungle: The Underside of Global Ecopolitics by Marie-Claude Smouts, translated by Cynthia Schoch The Political Economy of Emerging Markets: Actors, Institutions and Financial Crises in Latin America by Javier Santiso Cyber China: Reshaping National Identities in the Age of Information edited by Fran ç oise Mengin With Us or Against Us: Studies in Global Anti-Americanism edited by Denis Lacorne and Tony Judt Vietnam’s New Order: International Perspectives on the State and Reform in Vietnam edited by St é phanie Balme and Mark Sidel Equality and Transparency: A Strategic Perspective on Affi rmative Action in American Law by Daniel Sabbagh, translation by Cynthia Schoch and John Atherton Moralizing International Relations: Called to Account by Ariel Colonomos, translated by Chris Turner Norms over Force: The Enigma of European Power by Zaki Laidi, translated from the French by Cynthia Schoch Democracies at War against Terrorism: A Comparative Perspective edited by Samy Cohen, translated by John Atherton, Roger Leverdier, Leslie Piquemal, and Cynthia Schoch Justifying War? From Humanitarian Intervention to Counterterrorism edited by Gilles Andr é ani and Pierre Hassner, translated by John Hulsey, Leslie Piquemal, Ros Schwartz, and Chris Turner An Identity for Europe: The Relevance of Multiculturalism in EU Construction edited by Riva Kastoryano, translated by Susan Emanuel The Politics of Regional Integration in Latin America: Theoretical and Comparative Explorations by Olivier Dab è ne Central and Eastern Europe: Europeanization and Social Change by Fran ç ois Bafoil, translated by Chris Turner Building Constitutionalism in China edited by St é phanie Balme and Michael W. Dowdle In the Name of the Nation: Nationalism and Politics in Contemporary Russia by Marl è ne Laruelle Organized Crime and States: The Hidden Face of Politics edited by Jean-Louis Briquet and Gilles Favarel-Garrigues Israel’s Asymmetric Wars by Samy Cohen, translated by Cynthia Schoch China and India in Central Asia: A New “Great Game”? edited by Marl è ne Laruelle, Jean-Fran ç ois Huchet, S é bastien Peyrouse, and Bayram Balci Making Peace: The Contribution of International Institutions edited by Guillaume Devin, translated by Roger Leverdier War Veterans in Postwar Situations: Chechnya, Serbia, Turkey, Peru, and C ô te d’Ivoire edited by Nathalie Duclos The RAND Corporation (1989–2009): The Reconfi guration of Strategic Studies in the United States by Jean-Loup Samaan, translated by Renuka George Limited Achievements: Obama’s Foreign Policy by Zaki La ï di, translated by Carolyn Avery Diplomacy of Connivance by Bertrand Badie, translated by Cynthia Schoch and William Snow Democracy at Large: NGOs, Political Foundations, Think Tanks, and International Organizations edited by Boris Petric The Gamble of War: Is It Possible to Justify Preventive War? by Ariel Colonomos, translated by Chris Turner The G20: A New Geopolitical Order by Karoline Postel-Vinay, translated by Cynthia Schoch Emerging Capitalism in Central Europe and Southeast Asia: A Comparison of Political Economies by Fran ç ois Bafoil, translated and revised by Michael O’Mahony and John Angell Governing Disasters: Beyond Risk Culture edited by Sandrine Revet and Julien Langumier, translated by Ethan R. Rundell Origins and Evolution of the US Rebalance Toward Asia: Diplomatic, Military, and Economic Dimensions edited by Hugo Meijer The Bureaucratization of the Word in the Neoliberal Era: An International and Comparative Perspective by B é atrice Hibou, translated by Andrew Brown Egypt’s Revolutions: Politics, Religion, and Social Movements edited by Bernard Rougier and St é phane Lacroix, translated By Cynthia Schoch and John Angell Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and Exclusion in South Korean Constitutional Justice by Justine Guichard Regime Transition and the Judicial Politics of Enmity Democratic Inclusion and Exclusion in South Korean Constitutional Justice Justine Guichard REGIME TRANSITION AND THE JUDICIAL POLITICS OF ENMITY Copyright © Justine Guichard 2016 Softcover reprint of the hardcover 1st edition 2016 978-1-137-57507-4 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission. In accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 2016 by PALGRAVE MACMILLAN The author has asserted their right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire, RG21 6XS. Palgrave Macmillan in the US is a division of Nature America, Inc., One New York Plaza, Suite 4500, New York, NY 10004-1562. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. ISBN: 978–1–349–72045–3 E-PDF ISBN: 978–1–137–53157–5 DOI: 10.1057/9781137531575 Distribution in the UK, Europe and the rest of the world is by Palgrave Macmillan®, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Library of Congress Cataloging-in-Publication Data Guichard, Justine, author. Regime transition and the judicial politics of enmity : democratic inclusion and exclusion in South Korean constitutional justice / Justine Guichard. pages cm.—(The Sciences Po series in international relations and political economy) Includes bibliographical references and index. 1. Constitutional courts—Korea (South)—History. 2. Constitutional law—Korea (South)—History. 3. Judicial review—Korea (South) 4. Korea (South)—History. I. Title. KPA2674.G85 2016 347.51959035—dc23 2015021843 A catalogue record for the book is available from the British Library. CONTENTS List of Illustrations ix Acknowledgments xi Note on the Romanization of Korean Nouns and Names xiii Prologue xv One Interrogating Constitutional Justice: Contingency and Ambivalence of the South Korean Court’s Role as Guardian of the Constitution 1 Two Transitioning by Amendment: The 1987 Revision of Constitutional Norms and Institutions 23 Three Post-Authoritarian Contentious Politics: Constitutional Empowerment from Below 47 Four Reviewing How the Enemy is Defined: From the Security of the State to the “Basic Order of Free Democracy” 69 Five Reviewing the Contours of the National Community: The Body Politic Beyond and Below the 38th Parallel 95 Six Reviewing How the Enemy is Treated: Criminal Rights Even for National Security Offenders 119 Seven Reviewing the Exigencies of National Defense: Citizens’ War-Related Rights and Duties 143 viii Contents Epilogue 167 Chronology 173 Notes 177 Bibliography 215 Index 243 I L L U S T R A T I O N S Figures 3.1 Number of individuals annually prosecuted under the National Security Act and the Anti-Communist Act between 1961 and 2002 50 3.2 Total number of prosecutions per provision of the National Security Act under Kim Young-sam (February 1993–February 1998) and Kim Dae-jung (February 1998–February 2003) 51 Tables 1.1 Systems of judicial review associated with successive South Korean political regimes 5 1.2 Case statistics of the Constitutional Court of Korea between September 1, 1988 and January 31, 2015 18 1.3 Constitutional appointments since 1988 20 3.1 Classification of individuals prosecuted under the National Security Act per occupation between 1993 and 2002 52 3.2 Evolution of the South Korean legal profession between 1971 and 2003 56 4.1 Constitutional challenges to the National Security Act between 1989 and 2009 79 5.1 Number of North Korean refugees entering South Korea before and since 1998 101 5.2 Korean diaspora populations per region 102 ACKNOWLEDGMENTS While this book is set in South Korea, a tale of three cities lies behind its conception and writing. The debts that I have incurred in each of them are many. My doctoral journey, and the project that has emerged along its way, would have undoubtedly differed had I not been offered the opportunity to undertake them in the frame of the joint PhD program in political science between Sciences Po and Columbia University. It is during my time at Columbia, under the mentorship of Andrew J. Nathan, that I ventured in the myriad interstitial spaces where law and social sciences meet, eventually immersing myself in the realm of com- parative constitutional and judicial politics. At Sciences Po, Jean-Luc Domenach first encouraged me on the path of academic research and kindheartedly watched over my first steps.