Interrogating Constitutional Justice

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Regime Transition and the Judicial Politics of Enmity

Democratic Inclusion and Exclusion in South Korean Constitutional Justice

Justine Guichard

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 comparative 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. The support of my adviser, Fran çoise Mengin, has also accompanied me throughout my doctoral studies and extended beyond them. The publication of this book would not have been possible without her help. It would not have been possible either without the care with which Miriam Perier and Palgrave Macmillan surrounded the process of its addition to the Sciences Po Series in International Relations and Political Economy, nor without the stimulating comments provided by Pasquale Pasquino, Marie Seong-Hak Kim, and Daniel Sabbagh on an earlier version of the manuscript. Since the days when I encountered South Korea as an undergraduate exchange student in the year 2006–2007, Seoul has nurtured my scholarly efflorescence. It was during the summer 2008 that I benefited from the extraordinary instruction by Andre Schmid and Michael Robinson on Korean history, as well as Cho Kuk and Tom Ginsburg on Korean law and society at Seoul National University. As I found myself pursing research in this field a few years later, with the support of the Korea Foundation Graduate Studies Fellowship from 2012 to xii Acknowledgments

2014, I had the chance to conduct fieldwork at the Research Institute of the Constitutional Court of Korea and the Court itself. Although this book’s approach to constitutional politics primarily relies on an interpretive analysis of jurisprudence, my experience was made uniquely memorable by the generosity of all the members from both the Research Institute and the Constitutional Court whom I met, particularly Han Dong-Hoon, Ryu Ji-Min, and Im Yun-Jung at the former, and Kwak Won-Seok, Kim Cham, and Won Yoo-Min at the latter. They are the ones whom, finally, I would like to warmly thank. NOTE ON THE ROMANIZATION OF KOREAN NOUNS AND NAMES

This book relies on the McCune-Reischauer system to romanize all common nouns and expressions from Korean, as well as the names of institutions, laws, and places mentioned in the text. Three exceptions to this rule, however, must be noted: Seoul, Pyongyang, and the romanization of the Constitutional Court of Korea’s case numbers (the recurring syllable hun found in its English publications is kept as such instead of being changed into hŏ n to facilitate further research by non- specialists of Korean studies in the institution’s records). When it comes to the romanization of people’s names, their own divergent orthography is retained while the McCune-Reischauer version is always indicated in parentheses upon the name’s first occurrence, except for scholars. In this instance, only the romanized version of the name adopted by the author and reproduced in his or her English publications is used (e.g., Choi Jang-Jip instead of Ch’oe Changjip). The Korean usage whereby surnames precede first names is followed throughout the text. This order is only inverted for sources cited in the notes, where the first name of the author is followed by his or her surname and the title of the reference.

PROLOGUE

South Korea’s transformation from an impoverished authoritarian state into a free and prosperous polity in the span of three decades is often celebrated as a case in point for democratization studies. The impetus to engage in the research that has led to this book springs from my disquiet at a neglected and unsettling aspect of the transition to democracy that the country underwent in 1987—the year when the military regime of Chun Doo-hwan (Ch ŏ n Tuhwan) relinquished power and allowed for direct presidential elections to take place. Regardless of this change, the continuity displayed by South Korea’s political economy of punishment before and after the transition poses a lasting puzzle that remains to be addressed. This overlooked resilience is conspicuously embodied in the legal endurance and sustained use of the repressive instruments inherited from the nondemocratic era, such as the emblematic 1948 National Security Act (kukka poanp ŏ p), still in force, or the infamous ideological conversion policy (sasang chŏ nhyang), which was only recently abolished. Equally ignored is the common origin of these two mechanisms. Their roots not only plunge in the post-1945 context of the national division and separate formation of two antagonistic Korean states north and south of the 38th parallel but also date back to the colonial period that the country as a whole experienced under the yoke of Japan between 1910 and 1945. Neither the political transition of 1945—the national liberation— nor that of 1987—the end of authoritarian rule—therefore marks a fundamental rupture when it comes to repressive institutions in South Korea. Their maintenance to date has been justified by most successive governments in relation to the crisis situation that characterizes the peninsula, whose two halves are still in a “state of war” as no peace treaty was signed in the wake of the international and civil conflict xvi Prologue that opposed them from 1950 to 1953. By contrast, the conservation of old security devices in the name of the division is denounced by its critics as a lingering vestige of the past. It can be argued, however, that none of these two explanations—the actual threat posed by North Korea on the one hand, and the persistence of an anachronistic legacy from authoritarianism on the other hand—satisfyingly accounts for the reality of repressive patterns and the underlying construction of enmity that sustains them in South Korean democracy. Instead, the ascription of enmity and the mechanisms deployed to enforce it deserve to be analyzed from the viewpoint of their domestic, contemporary, and contentious functionality in the frame of South Korea’s state-society dynamics. Upholding this assumption, the present study focuses on a site centrally involved in the definition of—and in the dispute over defining—who enemies are and what can be done to them since the late 1980s. This site corresponds to constitutional justice. Indeed, the Constitutional Court of Korea (h ŏ np ŏ p chaep’anso), an institution introduced during the 1987 revision of the constitution, has been invested as the privileged stage upon which not only the validity of repressive instruments and practices but also the very understanding of what counts as “national” and “antinational” have been challenged after the change of regime. I came across a ruling of the Constitutional Court of Korea for the first time in the course of fieldwork conducted in the summer 2011 at the Korea Democracy Foundation (minjuhwa undong kinyŏ m saŏ phoe), a government-affiliated organization in Seoul. The objective of my stay was to collect materials about the ideological conversion policy and the individuals who were still subjected to it in the 1990s. Research in the archives of the foundation induced me to encounter a judgment rendered by the court in 2002 confirming the constitutionality of the “pledge to abide by the law” (chunp ŏ p s ŏ yakche) as the conversion policy was renamed following a 1998 reform. The reading of this decision prompted for my project a whole new field of investigation, revealing constitutional adjudication as a site where the construction of enmity has been repeatedly at stake—disputed by litigants, settled by the court, and potentially altered in the process. As I further immersed myself in the jurisprudence of the court, including through a four-week stay at its Research Institute (hŏ np ŏ p chaep’an y ŏ n’guw ŏ n) in September 2012, constitutional justice clearly imposed itself as an arena where diverse segments of society have consistently contested their marginalization from the confines of the post-authoritarian order. Through the issue of drawing the boundaries Prologue xvii of enmity, the constitutional court has thus addressed a fundamental political problem: the contentious determination of how democratic inclusion and exclusion are negotiated in present-day South Korea, of who is recognized a place in the community of national subjects by opposition to who is considered as posing a threat. Consequently, this volume does not only offer the first monographic study of the Constitutional Court of Korea available in English but also proposes an innovative and critical account of the institution’s role based on an in-depth reading of its jurisprudence. While the court is generally described as having contributed to protecting individual rights against abuses perpetrated in the name of national security, its jurisprudence unveils a more complex and ambiguous picture of how constitutional justice has reframed enmity over the last 30 years. Introducing the theoretical framework and interpretive methodology embraced by this research, Chapter One uncovers both the uncertainty that has accompanied the court’s ability to act as guardian of the constitution and the ambivalence that has permeated its commitment to defining and defending the constitutional order. Chapter Two retraces the court’s political genealogy, contextualiz- ing its coming into being in the frame of the negotiated constitutional revision of 1987, which was controlled by political elites from both the authoritarian leadership and the opposition party to the exclusion of the forces, demands, and competing national imaginary of the popular democratization movement. Taking into account the various limits designed to constrain the new institution, this chapter refutes the argument according to which the court was strategically created by its crafters to be a strong actor. Chapter Three delves into the contingent process of the court’s empowerment, demonstrating how constitutional justice first became invested as a site to contest the non-inclusive legacy of democracy’s institutionalization by human rights lawyers mobilized against “evil laws” (akp ǒ p) as well as the leniency of post-1987 governments toward the former regime’s wrongdoings and wrongdoers. The constitutional response to civil society’s demand for rectifying the past, however, has proved equivocal, as illustrated by transitional justice cases from the mid-1990s until recently. Chapters Four, Five , Six , and Seven undertake a detailed examination of constitutional jurisprudence for the main repressive instruments challenged before the court over the past three decades. Each of them sheds light upon the mix of liberal and illiberal effects produced by the court’s intervention. Chapter Four specifically interrogates how the xviii Prologue notion of enmity has been reshaped by the court in the aftermath of the transition, focusing on rulings delivered in relation to the National Security Act. This chapter revisits the traditional understanding made of these decisions as landmarks of the court’s vocation to protect fundamental rights, instead arguing that such rulings have also contributed to deeply consolidating the security legislation’s democratic legitimacy and relevance. Chapter Five complements the analysis of how the court has redefined enmity by looking at the ways in which the contours of the national community have been delineated by constitutional jurisprudence. The court has indeed reviewed a variety of laws that highlight criteria of inclusion in—and conditions of exclusion from—the collective body, disclosing how the projection of who counts as a national subject or as an enemy can operate both beyond the 38th parallel (through citizenship and immigration rules) and below (as exemplified by the ideological conversion policy used against so-called thought criminals within South Korea). Chapter Six is dedicated to the special procedures—or lack thereof—deployed against national security suspects and defendants in the criminal justice process. The rulings delivered by the court in this area demonstrate both the firmness of, as well as the limits met by, its effort to bring repressive instruments into conformity with the rule of law. Although constitutional jurisprudence has tried to undo several of the arbitrary rules and practices associated with the criminal handling of national security under the authoritarian regimes, these apparent gains have been more moderate than is commonly acknowledged. Finally, Chapter Seven analyzes the role of the court in cases calling into question the exigencies of national defense. While the military issues deferred before the institution reflect how constitutional litigation has been progressively invested as a site of contestation against some of the state’s most exclusive prerogatives, including its war- related powers and policies, the court’s rulings also manifest the extent to which its jurisprudence has contributed to reinforcing the discriminatory consequences of a certain national imaginary averse to alternative ways of envisioning the body politic.

CHAPTER ONE Interrogating Constitutional Justice : Contingency and Ambivalence of the South Korean Court’s Role as Guardian of the Constitution

Among the societies that experienced a political transition away from authoritarianism in the 1980s, South Korea is usually described as a paragon of “successful democratization.” This achievement is considered to be intimately tied to a new institution introduced with the 1987 revision of the constitution to safeguard fundamental norms and basic rights: the Constitutional Court of Korea. From a domestic viewpoint, the court’s jurisprudence is largely celebrated for having fulfilled both purposes, thereby importantly contributing to the process of establishing the rule of law after the change of regime. 1 In a comparative perspective, the South Korean constitutional adjudicator is today identified as “the most important and influential” institution of its kind amid its counterparts in the Asian region. 2 The path epitomized by the Constitutional Court of Korea certainly merits recognition and appraisal, especially taking in account the doubts that initially surrounded its capacity to act as guardian of the constitution. 3 Yet, concentrating on the court’s accomplishments may only shed partial light on the role it has assumed in the post-authoritarian era. To interrogate this role, the present book focuses on one of the major issues in which the institution has had to intervene since its creation: reviewing the contours of enmity in South Korean democracy—that is, arbitrating the protracted and still ongoing disagreement between the state and various parts of civil society over what is legally sanctioned as “national” and “antinational.” Such an issue can be said to pertain to 2 Regime Transition and the Judicial Politics of Enmity those “matters of outright and utmost political significance that often define and divide whole polities” and whose resolution is increasingly delegated to constitutional courts, a cross-national phenomenon captured by the concept of “judicialization of politics.” 4 As a result of the contemporary magnitude of courts’ involvement in public policy- making, considerable scholarly interest is dedicated to the variation that judicial institutions exhibit in terms of independence and strength— two dimensions along which the Constitutional Court of Korea is considered to score high. 5 Independent and strong courts’ commitment to acting as guardians of the constitution, however, does not necessarily and exclusively translate into liberal outcomes, such as fortifying the rule of law and upholding the rights guaranteed to individuals. The common assumption that constitutionalism, liberalism, and democracy are bound to mutually reinforce one another has been questioned in a variety of contexts and deserves to be in the South Korean case. This book’s primary contribution therefore lies in comparative constitutional politics where heightened attention has been drawn in recent years to non-Western societies in general, and new democracies in particular. 6 In this respect, the relevance of a monographic study centered on contemporary South Korea is not only to empirically document a prominent case still relatively overlooked in the literature but also to formulate a theoretically provocative argument, excavating the two-sidedness of the court’s mission to define and defend the post- authoritarian constitutional order. The notion of judicial politics of enmity that I propose aims at encapsulating the nature and ambivalence of this role discharged by the Constitutional Court of Korea as it has been asked to determine who is recognized a place in the community of national subjects by opposition to who is excluded from its scope as posing a threat since the regime change. In itself, constructing and combating enmity does not contradict the function for which constitutional courts are believed to exist. Indeed, safeguarding the constitution does not merely entail for courts to protect the rights and freedoms that basic norms consecrate. As pointed out by John Finn, the task of “constitutional maintenance” involves a responsibility to preserve both the “constitutional” and “physical” integrity of the existing order. 7 In confronting those who endanger this order, some courts may come to grips with a greater predicament than weighing liberty against security in times of crisis. Cases such as the South Korean one indeed appear to exemplify a further puzzle and paradox of constitutional intervention: the illiberal component that can accompany courts’ role when their commitment to defining and Interrogating Constitutional Justice 3 defending constitutionalism institutionalizes a durable bias against specific segments of the polity. This critical argument is not premised upon a culturalist postulate that would proclaim the incompatibility between so-called Western liberal values and Eastern forms of democratic and constitutional experiments (labeled as “Confucian” or otherwise). 8 If this disjunc- tion exists in contemporary South Korea, as contended, for instance, by Choi Jang-Jip, it corresponds to the result of a particular historical and institutional trajectory rather than to the expression of an intrinsic inability to accommodate liberalism, conceived as “an emphasis on individual liberty both of the self’s inner mind and conscience (including religious and political beliefs) and [on freedom] from restraints by external authority, either state or group.” 9 Such a bifurcation cannot be separated from the domestic effects brought about by the Korean division on the South’s political structures and cleavages. Contrary to what may seem, the North-South border never stood as the sole marker of inclusion and exclusion in the peninsula. Its own coming into being has given birth to a more insidious line of separation than the 38th parallel, a division not only between but within both Koreas as each became obsessed with eliminating its “internal enemies.” It has long been argued that these enemies, far from being confined to the groups or individuals threatening the security of the state, also encompassed different categories and successive generations of regime opponents under all South Korean authoritarian regimes. 10 This understanding of enmity still proves excessively narrow to comprehend post-1987 dynamics, in which the repressive instruments deployed in the name of national security have mainly served to police a certain and contentious sense of what the “national” is. It is in the frame of this state-society conflict opposing competing ways of imagining the contours of the body politic that the Constitutional Court of Korea has been asked to intervene and that its role must be interrogated.

Regime Change and the Politics of Constitutional Lawmaking

Since 1945, judicial review—or the establishment of courts in charge of checking the conformity of legislative statutes with constitutional norms and to strike down the former in case of conflict with the latter—has become a standard feature of transitions away from authoritarianism, in Europe and elsewhere.11 Yet, the existence of institutions 4 Regime Transition and the Judicial Politics of Enmity in charge of constitutional adjudication is not restricted to democratic contexts. Courts may actually play important functions even in severe political settings.12 The genealogy of judicial review in South Korea illustrates that mechanisms to uphold the supremacy of the constitution were available under all consecutive regimes since 1948, borrowing from various traditions and models. By the late 1980s, three different systems were put to test: the constitutional committee (h ŏ np ŏ p wiwŏ nhoe) of the First, Fourth, and Fifth Republics (respectively in place between 1948–1960, 1972–1979, and 1980–1987); the constitutional court of the short-lived democratic Second Republic (1960–1961); and the decentralized model embraced by the Third Republic (1962–1972) in which constitutional adjudication was carried out through ordinary tribunals and the Supreme Court of Korea (taeb ŏ bwŏ n), as in the United States but in contrast to continental Europe where specialized constitutional courts prevail (see table 1.1 ). Even though judicial review was in existence during South Korea’s authoritarian era (with the constitutional committee of the First Republic and the supreme court of the Third Republic having rendered a few rare decisions of unconstitutionality), it failed to fully develop given the absence of separation of powers and lack of independence plaguing the courts.13 As with most instances of regime change since the late eighteenth century and throughout South Korea’s own history, the country’s 1987 transition to democracy was accompanied by constitutional reform. 14 This episode took the form of a negotiated process between political elites, which resulted in the revision, rather than replacement, of the constitution adopted in 1948, in the context of the two Korean states’ separate founding—with the Republic of Korea (taehanmin’guk) being established in the south of the peninsula on August 15, while the Democratic People’s Republic of Korea (chos ŏ n minjuju ŭ i inmin konghwaguk) was proclaimed in the northern half on September 9. 15 In contrast to the constitution of North Korea, which was replaced for the first time in 1972, that of the South has endured since 1948 and undergone nine amendments. 16 While most of them centered on the issue of presidential power, only the 1987 one derived from a compromise among political elites rather than being engineered by the dominant party. 17 The South Korean transition of 1987 therefore fits within a larger universe of cases where political and constitutional change was the product of pact-making between the ruling and opposition forces. This being said, South Korea also belongs to a rare subclass of cases where democratization took place while the constitution of the ancien Table 1.1 Systems of judicial review associated with successive South Korean political regimes

Date Constitutional and Political Events Institution in Charge of Judicial Review

July 17, 1948 Enactment of the constitution of Constitutional Committee the First Republic, President Rhee Syngman (1948–1960) July 7, 1952 Constitutional revision allowing for direct president elections November 29, 1954 Constitutional revision lifting the two-term limit on presidential office June 15, 1960 April 19, 1960, revolution, Constitutional Court constitutional revision introducing the Second Republic, Premier Chang Myon (1960–1961) November 29, 1960 Revision introducing ex post facto penalties for crimes of corruption under the previous regime and creating a special tribunal and prosecutor for those crimes December 26, 1962 May 16, 1961, coup d’ é tat, Supreme Court constitutional revision introducing the Third Republic, General Park Chung-hee (1961–1979) October 21, 1969 Revision allowing the president to run for a third term after the two-term limit was reintroduced in 1962 December 27, 1972 Authoritarian radicalization of the Constitutional Committee Park regime, constitutional revision introducing the Fourth Republic (so-called Yusin, or revitalization, constitution) October 27, 1980 December 12, 1979, coup d’ é tat, Constitutional Committee constitutional revision introducing the Fifth Republic, General Chun Doo-hwan (1980–1987) October 29, 1987 1987 June Democratization Movement, Constitutional Court constitutional revision introducing the Sixth Republic, Presidents Roh Tae-woo (1988–1993), Kim Young- sam (1993–1998), Kim Dae-jung (1998–2003), Roh Moo-hyun (2003–2008), Lee Myun-bak (2008–2013), Park Geun-hye (2013–)

Source : Author. 6 Regime Transition and the Judicial Politics of Enmity ré gime was kept and amended, as in Hungary, Chile, Peru, Indonesia, and the Republic of China on Taiwan—the sole other states in Eastern Europe, South America, and Asia that did not enact a new basic norm during the wave of democratization and constitution-making of the 1980s. 18 The 1987 change of regime thus corresponds to what could be termed a “transition by amendment,” in which democracy was institutionalized while retaining the constitution inherited from the previous regime. The nature of the South Korean process (swift and one-time) nonetheless seems to set it apart from other cases where constitutional revision followed a more gradual path (with multiple amendments unfolding over several years). 19 In other words, the South Korean trajectory can be described as transitioning by amendment rather than by amendments. Although none of these two paths has been fully theo- rized as a distinctive category or modality of regime change as of yet, the logic of their occurrence can be clarified thanks to the insights offered by the literature which, from both positive political science and normative political theory, increasingly takes into account the political dynamics and interests that pervade the constitution-making process. As described by Jon Elster,

In idealized stories about constitution-making, impartial and rational framers design institutions that will reduce the scope for dangerous passions and channel the self-interest of future generations to promote the public good. Constituent assemblies are made up by saints or demigods who legislate for beasts. But this is nonsense. In general, framers are no less subject to interest and passion than those for whom they are legislating. 20

In so far as the present analysis conceives of constitutional lawmaking, by legislators or judges, in this non-idealized way, it situates itself in the continuity of the realist tradition. This approach can be traced to the early twentieth century when the school of American legal realism rejected the classical idea—and ideal—of law as an autonomous field. The hallmark of the realist tradition that further developed in the late 1950s and 1960s around the seminal works of Robert Dahl and Martin Shapiro is to consider judicial review as “a form of politics by other means.” 21 In recent years, this understanding of courts has been importantly extended to the political conditions and calculations surrounding their emergence as guardians of the constitution. Interrogating Constitutional Justice 7

In this perspective, Melissa Schwartzberg has highlighted how entrenchment, or the insulation of certain parts of the constitution from the possibility of legal change, “serves as a means by which legislators can seek to protect not only those rules that they regard as most important or those that serve a ‘constitutive’ purpose—securing the conditions of democratic decision making, or preventing democracy from revising itself into tyranny—but as a means of preserving privileges and power asymmetries.”22 In her eyes, the risk ensuing from entrenchment is to render courts solely responsible for shaping the content of non-modifiable constitutional clauses and constructs such as “human dignity,” the “basic order of free democracy,” or the “republican form of government,” that may thus be defined in ways that only judges themselves will be able to mend by reversing their own precedents. According to Schwartzberg’s reasoning, “we must bear in mind that entrenchment of a provision as vague as regime type may empower the constitutional court to determine the contours of what, precisely, a ‘republic’ entails, with the distributive consequences and the irrevers- ibility such a decision might entail.” 23 The scope of this argument can be expanded as courts in charge of judicial review engage in the task of articulating and therefore shaping the “basic structures” or “fundamental principles” that compose the constitutional order even in the absence of entrenchment. Indeed, specifying what these structures and principles are does not merely contribute to the historicization of law in the context of post-World War II legal systems’ refoundation outside any meta-referentiality to philosophical norms or to nature. 24 Such an intervention by constitutional courts can also participate in the consolidation of non-inclusive arrangements when the meaning and contents of these “basic” and “fundamental” categories appear to be a source of society-wide disagreement. In a work that sees itself as exemplary of the contemporary realist approach to comparative constitutional politics, Ran Hirschl analyzed the constitutionalization process undergone by countries such as Israel or Canada in the 1980s–1990s (i.e., in the absence of “transition sce- nario”) as a form of self-interested preservation from threatened political, economic, and judicial elites with a shared interest in maintaining their hegemony.25 For instance, Hirschl demonstrated how the hostile attitude of the elites toward judicial review started to evolve in Israel “as the secular Ashkenazi bourgeoisie and its political representatives increasingly lost their grip on Israeli politics.” 26 The 1992 Basic Law on Human Dignity and Liberty was precisely enacted in the context of 8 Regime Transition and the Judicial Politics of Enmity shifting demographics associated with the growth of the religious and non-Ashkenazi segments of the Jewish population to compensate the corresponding erosion of traditional players’ power and influence. Rather than being the product of a progressive revolution, the constitutionalization of basic rights is here conceived as the outcome of a strategic interplay between elites with a convergent stake in preserving their vision of the nation-state. Because of the variety of actors taken into consideration, Hirschl characterized his strategic explanation as “thick” to distinguish it from the “thin” version mainly emphasizing the role of partisan interests and electoral competition in constitution-making. In the latter framework, the emergence of an effective mechanism for judicial review proceeds from a bargain among political parties that are not sure of winning the first elections after the change of regime. This logic has been notably elaborated upon by Tom Ginsburg in his comparative study of constitutional courts in new Asian democracies. 27 Ginsburg’s theory accounts for the introduction and variation in strength of the South Korean, Taiwanese, and Mongolian courts in relation to the degree of electoral uncertainty existing at the time of the constitutional reform process. Judicial review is supported when two or three political parties of roughly equal weight seek to “insure” themselves against the risk of losing the coming elections by introducing a mechanism that will constrain the policy-making power of the future majority. If electoral uncertainty is high (as was the case in South Korea), a strong court will be empowered by the framers to minimize the prospective costs of not being in power; on the contrary, if this uncertainty is weak (as in Mongolia and to a lesser extent Taiwan), the dominant political party does not have an incentive to bind its future policy-making capacity. Hirschl’s “thick” strategic explanation can be used to complement the “thin” theory of Ginsburg and bring attention to the broader range of interests than mere partisan ones involved in, and potentially shel- tered through, the establishment of constitutional review. In the South Korean case, the transition to democracy was controlled by political elites from both the ruling and opposition parties sharing common- alities despite their electoral rivalry and divergent policy preferences. Whereas both sides are only presented as antagonistic in Ginsburg’s account, they were also united around a consensual premise embodied in the closed format of their negotiations: resisting the pressure for systemic and substantive reform exerted by the popular democratization movement, composed of the various groups (mainly student Interrogating Constitutional Justice 9 organizations, trade unions, and church activists) which were mobilized against authoritarian rule throughout the 1970s–1980s and prompted its collapse in June 1987. In this perspective, Choi Jang-Jip has remarkably demonstrated how the modalities of the transition, and of its constitution-making moment in particular, made it possible for conservative forces (most prominently the authoritarian leadership) to survive and even reinforce themselves.

The period from June 29, 1987, until the constitutional amendments were adopted in the National Assembly in October of the same year can be called the period of pact-making between the ruling and the democratic forces in Korea. The bilateral negotiations took the form of a political meeting between representatives of the ruling and opposition parties, participating on behalf of major political forces of the time. But these roundtables meetings for negotiating democratic institutions were a political game among the elites of institutional politics, and did not involve movement forces.28

With the exclusion of the student and labor movements’ representatives, the institutionalization of South Korean democracy was clearly dominated by the kind of coalition Hirschl has stressed, with the interests of both organized political parties as well as economic elites (the chaeb ŏ l or business conglomerates, partners of the developmental state since the 1960s) being secured to the detriment of the popular demands for transitional and social justice rooted in anti-regime activists’ alternative vision of national identity and history. Yet, the strength that the constitutional court has displayed since the late 1980s cannot be automatically attributed to a calculated effort on the part of these elites to preserve the “conservative bias” of the new democratic order. 29 The institution introduced by the revised constitution of 1987 and the review mechanisms created by the Constitutional Court Act (h ŏ np ŏ p chaep’ansop ŏ p) of 1988 did not necessarily bear the seeds of later developments. An accumulation of constraints related to the court’s composition, jurisdiction, and adjudication could have severely impaired its ability to play an effective role in the post-authoritarian era. While the next chapter offers a detailed overview of the 1987 negotiated constitutional revision, highlighting the contingency embedded in the court’s coming into being, the following section discusses the need for contemporary scholarship to take into consideration not 10 Regime Transition and the Judicial Politics of Enmity only the political interests involved in constitutional design but also the absence of predetermination governing institutions’ path.

Theorizing Uncertainty

The uncertainty that accompanies the birth of new institutions such as the Constitutional Court of Korea is poorly taken into account by theories of institutional design in general, and constitutional crafting in particular. Institutional analysis has known a revival since the 1980s, under the impulse of three methodological approaches: historical institutionalism, rational choice institutionalism, and sociological institutionalism. 30 It is in the wake of this renewed interest for institutions that courts emerged as an object of comparative political inquiry in the early 1990s.31 The realm of comparative constitutional politics has thrived for the past two decades while the avenues for research diversified, especially in terms of geographical reach. The field can also be described as having experienced a new “realist turn” in the early 2000s, venturing beyond earlier works’ postulate that “constitutional courts and their jurisprudence are integral elements of a larger political setting.” 32 When it comes to the establishment of constitutional courts, the main proposition of the recent realist literature lies in its claim that “post-World War II rights ideology alone simply cannot explain the tremendous variance in the institutional design, forms of constitutional review, scope of judicial activism, and above all, precise timing of constitutionalization.” 33 Instead of arising from the dissemination of rights-promoting norms and discourses, the creation of institutions in charge of constitutional review is envisioned as the result of strategic decisions made by actors whose motivation rests in the pursuit of their own political interests. From realist scholars’ viewpoint, constitution- making and constitutionalization are therefore never the work of altru- istic framers willing to set constraints upon their future actions for the sake of the greater public good or general welfare. According to Tom Ginsburg, this alternative and ideational view of constitutionalism as a form of collective self-binding—or “precommitment”—veils the agency problem involved in any institutional design process.

It is not sufficient to describe constitutional review as a device to protect citizens from future politicians without explaining why it serves the interests of present politicians who serve as a veto gate Interrogating Constitutional Justice 11

for the constitution. Although constitutional designers are subject to the same constraints of bounded rationality as everyone else, there are reasons for assuming that they consider their institutional choices carefully.34

While this point of departure—not to consider constitutional institutions as the outcome of disinterested choices on the part of their crafters—is a relevant one, strategic accounts such as Ginsburg’s insurance theory nonetheless appear to provide too mechanistic an explanation of the dynamics at work in constitution-making. In the insurance theory, let us recall that two variables are critically important to account for differences in the design of judicial review across cases: the political uncertainty that exists before the constitutional bargain, and the political diffusion that reigns afterward. As previously exposed, if the prospective positions of political parties are unsure at the time of the transition and remain so in its aftermath, all the conditions are met for a strong constitutional system not only to develop but also to be intentionally designed and implemented. This is where scholars associated with the precommitment theory— such as Jon Elster who first extended the metaphor of individual self- binding to constitutionalism before reconsidering it—may shed light upon institutional realities neglected by strategic explanations such as Ginsburg’s.35 As a matter of fact, taking into account framers’ interests is not what distinguishes the positions of the two authors. While Elster’s own work does not contradict the rational premise of Ginsburg’s analysis, his approach to constitution-making contains a radical criticism of realists’ current conceptualization of how interests matter. In the view of constitutionalization as a process orchestrated by elites in order to insure themselves against the risk of electoral loss or to preserve their threatened hegemony, institutional designers do not merely act strategically; the very strength of constitutional courts is the outcome of intentional choices on their part. Consequently, the success of judicial review appears largely predetermined by the will of political actors and their shared perception that a strong system of constitutional justice is the most desirable option in a context of partisan competition or declining legitimacy and influence. Strategic accounts are particularly vulnerable to falling prey to a pit- fall known as the functionalist fallacy, which Jon Elster condemns as the “appeal to beneficial but unintended consequences to explain behavior (or, alternatively, the inference from consequences to intention).” 36 In other words, this type of reasoning occurs when “the explanation of 12 Regime Transition and the Judicial Politics of Enmity institutional forms is to be found in their functional consequences for those who create them.” 37 This criticism implies that, too often, intentions are derived from consequences while such consequences may have been entirely unintended or wrongly anticipated by actors, even when they benefit from them in retrospect. Similarly, strategic explanations leave no room for institutional design’s unpredicted effects. Uncertainty itself is not absent from such theories, but it only features in their background as prompting risk-averse actors to shield themselves against the reversals of the democratic policy-making process when they cannot—or can no longer—expect to control it. The outcome of these political calculations, however, is not uncertain. 38 The strength of judicial review being the product of constitution-makers’ deliberate crafting, a court will be strong where they want it strong, and weak where they want it weak. The type of contextual uncertainty described by realist scholars is thus very different from the fundamental contingency surrounding the birth and trajectory of institutions. This contingency is erased when institutional outcomes are treated as the purposeful result of political actors’ careful engineering. Such a straightforward cause-and-effect chain can happen, but its occurrence is likely to be very infrequent. According to Jon Elster, a rare example of it can be found in the reform of the French Constitutional Council masterminded by President Valé ry Giscard d’Estaing in 1974.

Up to that point, the council had mainly been an instrument of the government of the day in its dealings with unruly parlia- ments. The opposition had no power to call upon the council to scrutinize laws for their possible unconstitutionality. As president, Giscard d’Estaing handed this weapon to the opposition on a plate, by allowing any group of sixty deputies or senators to bring a law before the council. His motive, however, was not to restrict his own freedom of action. He foresaw, correctly, that the next parliamentary majority would be socialist; also, correctly again, that one of its priorities would be to nationalize important industries; and finally, once more correctly, that the council would strike down such legislation as unconstitutional. He very deliberately and successfully sought to restrain the freedom of actions of his successors. 39

The congruence between actors’ calculations and a given institution’s path provided in this example of constitutional crafting is the exception Interrogating Constitutional Justice 13 rather than the rule. Even when institutional designers obtain what they may have initially wanted for the protection of their interests, such consequences can result from other processes than the ones they intended to create, as illustrated by the making of the Constitutional Court of Hungary.

As John Schiemann has shown, some Hungarian Communists were in favor of a strong constitutional court because they predicted, correctly, that if parliament were to adopt retroactive legislation or extend the statute of limitations for the purpose of bringing them to justice, the court would strike down these measures. One Communist delegate to the Round Table Talks said, “We thought that this was one of the institutions which would later be able to prevent a turning against the constitution, a jettisoning of the institution, the creation of all sorts of laws seeking revenge.” One should add, however, that unlike Giscard d’Estaing they were proved right for the wrong reasons. The Hungarian Communists thought they would be able to appoint “reliable” judges as the first members of the court, as an insurance device in case they should become a minority in the new parliament. The court that was actually appointed had a quite different composition. The principle the judges invoked when striking down the retalia- tory legislation, namely, that it violated the principle of legal certainty, was not in any way window dressing for Communist self-protection. 40

Jon Elster’s analysis therefore confirms that constitutional design can be the result of strategic decisions on the part of political elites but that their intentions, even when realized, do not predetermine the institutional effects that they seek to create. In the case of South Korea, the conception of a constitutional court during the 1987 revision of the constitution and later through legislation similarly suggests that the institution was not necessarily created to become what it is today given multiple restrictions that could have bound its capacity to act as guardian of the constitution. Other actors than its crafters actually played a crucial role in activating judicial review, such as human rights lawyers investing constitutional justice as a site for contesting the confines of the new democratic order. Yet, what the court has done is far from having been conditioned by their demands either. 14 Regime Transition and the Judicial Politics of Enmity

The Paradox of Defending the Constitutional Order

The thesis following which jurisprudence is not only made by judges but also depends on the groups that have the ability to engage in sustained constitutional litigation was famously formulated by Charles Epp in the late 1990s. His comparative study of the “rights revolution” that several legal systems have undergone since the 1960s, most notoriously in the United States, led him to attribute such a phenomenon to the successful rights advocacy of civic associations, such as the American Civil Liberties Union, rather than to the activism of courts themselves. 41 Similarly, constitutional justice in post-authoritarian South Korea has been consistently resorted to by the parts of civil society that the institutionalization of democracy marginalized, especially thanks to human rights lawyers’ mobilization against so-called evil laws. Over the years, these professionals have been involved in challenging many of the repressive mechanisms inherited from the authoritarian period, such as the National Security Act as developed in Chapter Three . 42 The Constitutional Court of Korea’s response to this appeal, however, has proved paradoxical. As this research argues, the institution’s commitment to defining and defending the constitutional order has translated into both liberal and illiberal outcomes: curbing existing security instruments while confirming their contemporary relevance and functionality; setting bonds on the powers of government by dismantling a number of authoritarian remains while consolidating the non-inclusiveness of South Korean democracy. Unearthing the ambivalence with which the constitutional court has discharged its role as guardian of the constitution importantly sheds light upon the subtle solidarity between constitutionalism and the political alienation of certain segments of society in contemporary South Korea. This ambivalence does not epitomize the separation traditionally drawn between constitution and constitutionalism, according to which the former may exist without the latter if constitutional norms “are perceived mainly as policy tools or as instruments for short-term or partisan interests.” 43 Constitutional democracy in South Korea is not a sham or fa çade, as illustrated by the vibrancy of constitutional adjudication and the court’s contribution to promoting the rule of law and fundamental rights. The critical perspective adopted in this study does not aim at refuting that the court has acted as guardian of the constitution. Instead, it seeks to call attention to the exclusionary dimension of the South Korean court’s intervention as it has performed the task of defining and defending the constitutional order. Interrogating Constitutional Justice 15

The research thus concentrates on constitutional language to explore the ways in which an institutional-discursive formation thought to be liberal can nonetheless instantiate an illiberal component. While paying utmost attention to the words and reasonings articulated by the court, this approach does not revolve around an internal, juridical, or doctri- nal understanding of rulings and their contents. The analysis is primarily interpretive, reconstituting the political dispute that underlies the legal one in each of the cases brought before the court by taking into account the text, context, and subtext of its decisions. In the selection of jurisprudence examined in this book, the overall underlying dispute staged and settled in the constitutional arena concerns delineating the boundaries of what constitutes enmity in South Korean democracy, of who counts as a “national” or “antinational” subject and is consequently included in or excluded from the body politic. Identifying the nature of this conflict makes it possible to uncover the paradox of the Constitutional Court of Korea’s role: how its commitment to acting as guardian of the post-authoritarian constitutional order has led it to contain the demand for more inclusiveness emanating from various parts of civil society since the 1987 change of regime. Although critical of South Korean constitutional justice in contend- ing so, the present study does not entail a normative assessment about what the court should have done—additionally or dissimilarly. One of the reasons why the analysis refrains from this judgment stems from my belief that the court may not have had the possibility to act much differently than it did. Ultimately, the court indeed appears to have been constrained by the very nature of the paradox in which it has been caught: defining and defending the constitutional order when the foundations that it lays institutionalize a durable bias against certain segments of the polity. Such a position situates this work in between the optimistic view and the skeptic stance toward legal mobilization and constitutional intervention. The former emphasizes the compelling, and seemingly subversive, power of the constitutional stage: its apparent ability to give a voice to those who are being denied one by the very mechanisms of exclusion that judicial review offers the opportunity to contest, by raising the issue of their conformity to constitutional norms. By contrast, the latter questions the possibility to speak and to become visible, which the constitutional stage supposedly effectuates. Indeed, this possibility only exists as long as individuals are able and willing to articulate a particular language and subjectivity, that of the right-claiming subject, which “as Kirstie McClure has argued . . . implies the modern constitutional state as ‘a privileged expression of political 16 Regime Transition and the Judicial Politics of Enmity community and hence as the principal and necessarily privileged site of political action.’” 44 Moreover, although the individual gains derived from bringing one’s case on the constitutional stage can be real, appealing to law and courts to denounce injustice also risks lending credibil- ity to the order being opposed, thus producing a form of “involuntary legitimation.” 45 Jacques Ranci ère’s skepticism goes further when he argues that “the practice of the ‘constitutionality checkup’” only amounts to the “transformation of the political dispute into a legal problem.” 46 Constitutional justice is therefore not a stage where politics—conceived as disagreement (m ésentente), that is, as “a dispute over the object of the discussion and over the capacity of those who are making an object of it”47 —is likely to happen. 48 In place of these two opposite approaches, the present research aims at highlighting the paradox inherent to South Korean constitutional justice as a site where the fundamental political disagreement of the post-authoritarian era—the contentious ascription of enmity—has been both unprecedentedly voiced by a variety of litigants and ambiguously resolved by the court. Analyzing its corresponding jurisprudence over the past three decades reveals how the institution, through its function of defining and defending the existing constitutional order, has been involved in the struggle over redrawing the contours of democratic inclusion and exclusion in an ambivalent way.

Collection and Presentation of the Jurisprudential Corpus

The total volume of decisions included in this study consists of close to 70 rulings delivered since the Constitutional Court of Korea began to operate, of which more than half have been partly or integrally translated into English by the institution while the rest are only accessible in Korean language. 49 In approaching these judgments, the analysis relies on both the original texts and, when available, their official translations, from which excerpts are reproduced unless otherwise indicated. Between September 1, 1988, and January 31, 2015, 26,943 cases were filed with the court, although less than 500 cases were annually received until the mid-1990s and more than 1,500 have been registered each year since the mid-2000s. 50 The overwhelming majority of affairs (over 96 percent) reaches the court through one of its two channels for submitting a constitutional complaint, especially through the procedure of article 68, section 1, of the Constitutional Court Act following which any person alleging a violation of his or her basic rights by Interrogating Constitutional Justice 17 an exercise or non-exercise of governmental power can directly petition the court. Between late 1988 and early 2015, 21,139 complaints were filed through this mechanism, that is, 78 percent of the court’s caseload (see table 1.2 ). Approximately half of the cases received by the Constitutional Court of Korea are dismissed as nonjusticiable by a small bench of three justices (13,599 cases between 1988 and 2015). Out of the remaining 13,344 cases, 836 were still pending as of January 31, 2015, leaving the total of affairs decided by the court’s full bench of nine justices to 12,508 over the past 27 years (which amounts to less than 500 cases settled a year). Most of the cases adjudicated by the full bench, however, are rejected (6,714), dismissed (1,775), or withdrawn (791). As a result, only a small proportion of cases (3,222) resulted in a decision of constitutionality, unconstitutionality, or another form of holding between September 1988 and January 2015: 1,961 were found constitutional, 497 unconstitutional, 164 nonconforming to the constitution, 69 only partly unconstitutional, 28 only partly constitutional, and 503 were upheld (a term used when the court accepts a constitutional complaint that does not include a constitutionality of law issue). While the number of rulings included in this research only represents a minor fraction of all the cases ever adjudicated by the court, the selected corpus deals with one of the overriding issues in which the court has had to intervene since the change of regime: redrawing the boundaries of enmity in post-authoritarian South Korea. This issue encompasses most of the major matters examined by the court over the past three decades: reviewing the constitutionality of the main mechanisms of exclusion operating in the name of preserving the security of the state (such as the National Security Act, the ideological conversion policy, the criminal justice system, and compulsory military service); arbitrating which political actions and actors are compatible or incompatible with democracy; determining the contours of the national community through the assessment of nationality, citizenship, and immigration laws; as well as settling matters of war and peace. The body of cases retained as relevant is therefore not limited to the rulings concerning the main security instruments that have remained deployed after the transition despite being inherited from the authoritarian era. The assembled corpus also interrogates the Constitutional Court of Korea’s construction of enmity in relation to a broader set of issues that incorporates many of the court’s most momentous and commented judgments, such as its 1995 series of rulings related to the prosecution of former dictators Roh Tae-woo (No T’aeu) and Chun Table 1.2 Case statistics of the Constitutional Court of Korea between September 1, 1988 and January 31, 2015

Type Total Constitutionality of Impeachment Dissolution of a Competence Constitutional Complaint Statutes Political Party Dispute Sub Total § 68 I § 68 II

Filed 26943 851 1 1 84 26006 21139 4867 Settled 26107 799 1 1 80 25226 20701 4525 Dismissed by small bench of 13599 13599 11382 2217 three justices Unconstitutional 497 241 256 80 176 Unconformable 164 56 108 46 62 Conditionally 69 18 51 19 32 unconstitutional Conditionally 28 7 21 21 constitutional Constitutional 1961 296 1665 4 1661 Upheld 503 1 16 486 486 Rejected 6714 1 20 6693 6693

Decided byfull bench of nine justices Dismissed 1775 62 30 1683 1411 272 Other 6 651 Withdrawn 791 119 14 658 575 83 Pending 836 40 4 780 438 342

Source : Based on the statistics of the Constitutional Court of Korea. Interrogating Constitutional Justice 19

Doo-hwan, its 2004 verdict against the impeachment of President Roh Moo-hyun (No Muhy ŏ n), or its 2014 decision to dissolve the Unified Progressive Party (t’onghap chinbodang—UPP). These instances have been fully part of the dispute over which political actors, actions, and discourses count as “national” or “antinational” in democratic South Korea. This book consequently spans over the constitutional court’s first four terms and the beginning of its fifth one (see table 1.3 ), under the successive presidency of Justices Cho Kyu-kwang (Cho Kyukwang, 1988–1994), Kim Yong-joon (Kim Yongjun, 1994–2000), Yun Young- chul (Yun Y ŏ ngch’ ŏ l, 2000–2006), Lee Kang-kook (Yi Kangguk, 2007–2013), and Park Han-Chul (Pak Hanch’ŏ l, since 2013). Among some 40 individuals who have served as constitutional justices between September 1988 and January 2015, only two were women: Jeon Hyo- sook (Chŏ n Hyosuk, 2003–2006) and Lee Jung-mi (Yi Chŏ ngmi, since 2011). Constitutional justices are usually former judges or prosecutors, a difference in terms of career and professionalization believed to weigh more on their sensibility than the branch of power (executive, judicial, or legislative) that appoints them. 51 Yet, this book does not rely on a sociological approach to the court in order to explore its role in the reframing of enmity after the change of regime. The research is not either judge-based in the way exemplified by classical studies of the U.S. Supreme Court, focusing on justices’ personal preferences or interactions as respectively advocated by the attitudinal model or the strategic framework. 52 Although this book admits that the trajectories, orientations, and calculations of the individuals sitting on the bench matter to understand the institution, it primarily adopts an interpretive approach to constitutional discourse as articulated in jurisprudence to analyze how the court has contributed to the construction of enmity since the late 1980s. While it is possible to discern important contrasts in terms of decision-making among South Korean justices, there also exists among them a largely shared order of discourse when it comes to identifying and countering existing threats to the constitutional order. The commonality upon which the court’s discourse ultimately rests is not merely produced by the fact that constitutional language emanates from a certain kind of elites—although, to be sure, the legal profession forms a close-knit elite community in South Korean society.53 This shared discursivity is also premised upon the institutional nature of the constitutional court and the dual solidarity that binds it to the state, that is, not only to the state’s physical integrity that the court is committed Table 1.3 Constitutional appointments since 1988

Year Presidential Nominees Chief Justice of the Supreme Court’s National Assembly’s Nominees Nominees

Court’s President Justices Justices Justices

1988Cho Kyu- Choe Kwang- Kim Yang- Lee Lee Shi-yoon Kim Moon- Byun Jeong-soo Han Kim 1989 kwang ryool (September kyun Seong-yeol (September hee (September (September 1988– Byung- Chin-woo 1990 (September 1988–September (September (September 1988– 1988–September September 1994) chae (September 1988– 1994) 1988– 1988–August December 2000) (September 1988– September September 1991) 1993) 1988– January 1994) 1994) Hwang September 1997) 1991 Do-yun 1994) 1992 (August 1993 1991–August 1994 Kim Kim Chin-woo Chung 1997) Lee Jae-hwa Koh Joong-suk Kim Moon-hee Cho Seung- Shin 1995 Yong-joon (September Kyung-sik (December (September (September 1988– hyung Chang-on 1996 (September 1988–January (September 1993– 1994– September 2000) (September (September 1994– 1997) 1994– December September 2000) 1994– 1994– 1997 September Lee September Han 1999) September September 1998 2000) Young-mo 2000) Dae-hyun 1999) 2000) 1999 (January 1997– (August Kim Ha Kyung- 2000 Yun March 2001) Song In-jun 1997–August Young-il Kim Kyung-il Kwon Seong chull Kim 2001 Young-chul Choo Sun-hoe (September 2003) (December (September (September 2000– (September Hyo-jong 2002 (September (March 2001– 2000– 1999– March 2000–September August 2006) 1999– (September 2003 2000– March 2007) September Jeon Hyo- 2005) 2006) January 2000– September 2006) sook (August 2004) September 2006) 2003– 2006) August 2006) 2004 Lee Sang- 2005 Lee kyung Kong-hyun (February (March 2004–June 2005–March 2005) 2006 Kim Hee-ok Kim 2011) Min Hyeong-ki Mok Young- Cho Dae- Lee Dong- 2007 Lee Kang- Song Doo-hwan (September Jong-dae (September joon (September hyen (July heub 2008 kook (March 2007– 2006– (September 2006–September 2006–September 2005–July (September 2009 (January March 2013) December 2006– 2012) 2012) 2011) 2006– 2010 2007– 2010) September September 2011January 2012) Lee Jung-mi 2012) 20122013) Park Kim (March Lee Jin-sung Kang Il-won Kim Yi-su Ahn Han-chul Chang-jong 2011–) (September (September (September Chang-ho (February (September 2012–) 2012–) 2012–) (September 2011–April 2012–) 2012–) 2013) 2013 Park Han-chul Cho Yong-ho Seo Ki-seog 2014 (April 2013–) (April 2013–) (April 2013–)

Source : Based on the records of the Constitutional Court of Korea. 22 Regime Transition and the Judicial Politics of Enmity to defending but also to a certain way of envisioning the “national” that it seeks to safeguard. This institutional-discursive element is itself an incomplete part or fragment of the larger and contentious text, context, and subtext in which the court’s intervention is inscribed: the asymmetrical conflict between the state and diverse parts of civil society over the boundaries of political inclusion and exclusion in South Korean democracy. To better grasp how this multilayered textuality comes into play for each of the issues brought before the constitutional court, the research’s in-depth reading of jurisprudence is supported by the use of secondary sources, newspaper articles, human rights reports, and the court’s own publications. These materials are particularly helpful to identify the anonymous litigants and designated lawyers involved in a given case, as well as to reconstitute the events and debates surrounding the constitutional process, including the impact of verdicts once litigation is over. Additionally, the month I spent at the Research Institute of the Constitutional Court of Korea in September 2012 provided me with the opportunity to conduct informal interviews with constitutional research officers (h ŏ np ŏ p yŏ n’gugwan) from both the court (who perform research functions in relation to pending cases and whose role may be compared to law clerks) and its institute (who perform research functions on domestic and comparative topics of interest to the court), as well as to consult the records of some of the main cases on which this book focuses. In the end, the value of an interpretive approach to jurisprudence is to expose the contemporary and domestic dimensionality of the challenges raised by the construction of enmity in post-1987 South Korea. Indeed, the dispute over who is recognized a place in the community of national subjects by opposition to who is considered as posing a threat cannot be reduced to a disagreement about the authoritarian past or the status of North Korea. Rather than referring to these dyschronic and dystopic alterities, the textuality through which constitutional justice proceeds both registers and regulates the dynamics of inclusion and exclusion shaping South Korea’s democratic experiment.

CHAPTER TWO Transitioning by Amendment : The 1987 Revision of Constitutional Norms and Institutions

On the eve of summer 1987, hundreds of thousands of South Koreans gathered throughout the country’s streets to oppose the continuation of the Chun Doo-hwan regime, setting in motion the process of transitioning to democracy, which the incumbent leadership yielded to by announcing reforms. This chapter explores the subsequent context in which the Constitutional Court of Korea was created, as a result of a revision of the constitution that was negotiated by political elites from the authoritarian camp and the opposition party to the exclusion of the actors, demands, and alternative national imaginary of the popular democratization movement. Both this elite bargain and the compro- mises it produced are recorded in the text of the amended constitution in general, and in the making of the constitutional court in particular. Yet, the way in which the court was fashioned did not predetermine what it would become, leading the analysis to highlight the contingency of institutional design.

“We, the People”: Negotiating Dynamics of Inclusion and Exclusion in Constitutional Law

“People are the masters of the country, and the people’s will must come before everything else.” 1 On June 29, 1987, this dramatic acknowledgment was pronounced in a nationally televised address by an unlikely voice for political reform, Roh Tae-woo, one of the pillars of the 24 Regime Transition and the Judicial Politics of Enmity military regime and President Chun Doo-hwan’s handpicked successor. As unexpected as Roh’s declaration was, it did not come out of nowhere but was prompted by the mass street protests ignited throughout South Korea by his designation as the ruling Democratic Justice Party’s (minju ch ŏ ngŭ idang—DJP) candidate in the coming presidential elections of December 1987—a nomination that amounted to a suc- cession choice given the indirect voting system stipulated by the 1980 constitution, which left the vote in the hands of a compliant electoral college. Under the pressure of the mass rallies to which repression did not appear a viable response, Roh’s June 29 speech heralded eight major concessions, starting with the promise to amend the constitution—a process that was completed by political elites on behalf of the “people” but excluded some of its major voices. Enacted with the country’s founding in 1948, the constitution of the Republic of Korea was never replaced but instead amended on nine occasions, five of which reflect changes of regime such as the 1987 transition to democracy.2 The text that was revised and ratified that year appears rooted in continuity rather than rupture, as suggested by the historical and political narrative articulated by its preamble in the name of “We, the people.” This canonical reference is indissociable from the project of constructing national identity in which the South Korean state has engaged since it was formed, in relation to a dual predicament: postcoloniality (given the experience of both Japanese rule from 1910 to 1945 and military occupation by the United States between 1945 and 1948) and its conflict of sovereignty with the “other” Korea. Far from participating to the commemoration of this project, the preamble of 1987 reasserts and prolongs it in the context of institutionalizing not only the power of the demos but also its proper contours.

The Preamble’s New Narrative: Emphases and Omissions We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independent Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice, having assumed the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice, humanitarianism and brotherly love, and Transitioning by Amendment 25

To destroy all social vices and injustice, and To afford equal opportunities to every person and provide for the fullest development of individual capabilities in all fields, including political, economic, social and cultural life by further strengthening the basic free and democratic order conducive to private initiative and public harmony, and To help each person discharge those duties and responsibilities concomitant to freedoms and rights, and To elevate the quality of life for all citizens and contribute to lasting world peace and the common prosperity of mankind and thereby to ensure security, liberty and happiness for ourselves and our prosperity forever, Do hereby amend, through national referendum following a resolution by the National Assembly, the Constitution, ordained and established on the Twelfth Day of July anno Domini Nineteen hundred and forty-eight, and amended eight times subsequently.

The preamble of the revised constitution of 1987 first strikes as a palimpsest recording various layers of South Korea’s official nationalist discourse, such as celebrating the country’s “resplendent history and traditions dating from time immemorial”—an expression referring to Korea’s mythical foundation in 2,333 BC.3 The ancientness and uniqueness of Korean history has been a commonplace of nationalist historiography since the late nineteenth century, when the threat posed by foreign powers’ territorial greed made pressing the construction of a discourse on Korean identity and its distinctiveness, including in ethno-racial terms. 4 The colonial period that Korea eventually underwent under Japanese domination is integrated in the preamble’s narrative through the reference to “the cause of the Provisional Republic of Korea Government born of the March First Independent Movement of 1919 (samil undong).” Colonial history is thus classically reified to a pair of powerful symbols: on the one hand, the Korean declaration of independence of March 1, 1919; on the other hand, the formation of a provisional government exiled in Shanghai on April 13, the same year. Both are emblematic of South Korea’s post-1945 nationalism, articulated around the condemnation of the unlawful occupation of Korea by Japan and the correlated glorification of homegrown resistance. Official historiography, however, appears trapped in a number of falsifications concerning the colonial experience, during which resistance to Japan was only marginal and irreducible to the March 1, 1919, movement 26 Regime Transition and the Judicial Politics of Enmity in Korea or the provisional government abroad. By the 1930s, both domestic and expatriate independence groups had become largely dominated by various left-wing factions, which considered these two attempts as a failure. 5 This historical reality is not the only one silenced by the 1987 preamble. Tracing “the mission of democratic reform and peaceful unification of our homeland” to the anticolonial struggle of March 1, 1919, and the student revolution of April 19, 1960, which put an end to the dictatorship of Rhee Syngman (Yi Sŭ ngman), in power since 1948, the constitution’s narrative voluntarily omits both the June 1987 protests against the Chun Doo-hwan regime and the event considered by South Korea’s democratization movement as its foundational trauma: May 18, 1980, or the Kwangju uprising. During the wave of demonstrations that erupted in reaction to the December 12, 1979, coup and nationwide martial law imposed by Chun and his clique of fellow generals, including Roh Tae-woo, the city of Kwangju was the site of an insurrection that military troops bloodily terminated. 6 According to Henry Em, Kwangju represents the turning point after which anti-regime students and intellectuals started to challenge not only the existing political order but also the South Korean state’s claim to embody the “true” incarnation of the nation. Against this official and until then hegemonic discourse, activists began to identify a new “national and nationalist subject, a subjectivity that could be an alternative to and autonomous from nationalist narratives authorized by either the North Korean or the South Korean state”: the minjung, a term connoting the people, the masses, or the subaltern.7 The democratization movement’s self-definition in terms of minjung translated into its members’ advocacy of a maximalist political discourse and agenda in the 1980s: uprooting the authoritarian regime, bringing about socioeconomic justice, and overcoming the artificial division imposed on the Korean peninsula. As argued by Lee Namhee,

The South Korean minjung movement’s construction of itself as a counter-public sphere involved the establishment of “new norms and hierarchies” that consigned all other forces considered to be inimical to minjung as anti-minjung, antidemocratic, and antinational. The strategy of dichotomization, exalting the minjung while “othering” and at times demonizing the state, corporate conglomerates, and foreign powers, served to shore up their oppo- sitional identity.8 Transitioning by Amendment 27

In contrast to the minjung movement, the organized political opposition mainly focused on reforming constitutional rules to change the modalities of the coming presidential elections. With the prospect of Chun Doo-hwan’s presidency terminating in 1987, opposition parties started to campaign for direct suffrage and constitutional revision as early as 1985. In April of that year, three of them—the New Korea Democratic Party (sinhan minjudang—KDP), the Democratic Korea Party (minju han’gukdang—DKP), and the Korea National Party (han’guk kungmindang—KNP)—won together a majority of the popular vote in legislative polls, a victory that did not bring them a corresponding majority of seats in the parliament, given electoral malapportionment rules. Convinced that Chun and his handpicked successor, Roh Tae- woo, could be defeated in the forthcoming presidential elections if the voting system was altered, the opposition continued to press for constitutional reform while the government kept on delaying it. 9 The organized political opposition and popular democratization movement therefore remained largely independent throughout their battle to take down the Chun regime. In the spring of 1987, the pro- democracy struggle accelerated as movement groups were crucially rallied by the urban middle class, outraged by a series of torture cases against student dissidents made public earlier that year. It is commonly thought that the massive nature of the demonstrations, coupled with the prospect of the upcoming 1988 Olympic Games in Seoul, were responsible for discouraging the incumbent military elite from resorting to repression and spilling blood the way it had in May 1980, when the Kwangju uprising was crushed.10 Although South Korea’s transition to democracy was prompted from below by the mobilization of civil society and minjung forces, in particular the students’ and workers’ movements, its process was as surely handled from above by political elites from both the opposition and authoritarian leaderships.11 Despite the amendment of October 27, 1987, being the first of South Korea’s constitutional revisions to take place following negotiations between the government and the opposition, the talks that led to it were elite-controlled and highly exclusive. As the very leaders behind the perpetration of the Kwangju massacre negotiated the 1987 institutionalization of democracy, its preamble’s pledge “to consolidate national unity with justice, humanitarianism, and brotherly love, and to destroy all social vices and injustice” while leaving the memory of May 1980 unmentioned could only resonate as bitter irony to minjung groups and sympathizers.12 28 Regime Transition and the Judicial Politics of Enmity

This tension illustrates the political dynamics and surreptitious forms of exclusion, which can impregnate constitutional norms as they speak in the name of “We, the people.” Such an argument does not entail a negative assessment that would deny or downgrade the legitimacy of the framework under which South Korea as a constitutional democracy operates. The revised text was submitted for ratification to citizens in a national referendum that proved a plebiscite in favor of the amended constitution, with a turnout of 78.2 percent and an approval rate of 93.1 percent.13 These figures point to the satisfaction of an overwhelming majority of the South Korean voting age population—including the “relatively conservative urban middle class that had tipped the balance in favor of the popular reform”—with the nature and extent of the democratization process, relegating to the background students’ and workers’ demands for “the freedom to organize labor, the institution of distributive justice, the elimination of the National Security Law, and the creation of a social welfare system.”14 The contradictions produced by the continued political mobilization and marginalization of the actors, demands, and alternative national imaginary of the minjung movement are further evoked in Chapter Three , which ties them to constitutional justice as a stage where contentious politics has been displaced after 1987.

The Inescapability of the Korean Division: Political Realities and Legal Fictions The partiality of the South Korean constitution’s reference to “We, the people” is not limited to the issue of its post-authoritarian conception of the demos. The notion’s confines are more conspicuous in original language than its English translation makes readily accessible. In Korean, the expression “We, the people” corresponds to uri taehan kungmin, literally “We, the people of the Great Han”—where uri stands for “us/we,” taehan for “the Great Han/Korea,” and kungmin for “people/nation.” The very Korea associated with taehan in the post- 1945 context, however, is unmistakably taehanmin’guk, that is to say, the Republic of Korea or South Korea as referred to by South Koreans. As a result of the division of the peninsula into two halves since 1945, Korean language does not possess one generic word to name Korea, as English does, but instead resorts to four localized terms: South and North Koreas according to the South (respectively han’guk and pukhan); North and South Koreas according to the North (respectively Transitioning by Amendment 29 chos ŏ n and namchosŏ n). A similar cleavage governs the use of the term people, kungmin in the South by opposition to inmin in the North. Although it does not openly mention the existence of North Korea, the preamble of the 1987 constitution does not—and linguistically cannot—escape the fact of the division. Its presence pervades the text, both implicitly and explicitly. Implicitly, references to pre-1945 history, and the “immemorial time” during which the country was united, coexist with a definition of the Korean people which, by contrast, cannot be politically neutral. Explicitly, the division is strongly echoed when the preamble embraces “the mission of democratic reform and peaceful unification (t’ongil) of our homeland,” in order “to consolidate national unity with justice, humanitarianism, and brotherly love.” 15 This horizon is reasserted in article 4 of the constitution:

The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy.

The language of “peaceful unification” was not introduced in the constitution by the 1987 revision. It was initially made reference to in the preamble of 1972, following the inter-Korean Joint Communiqué of July 4, 1972, and was retained in the 1980 text. 16 As a goal, the peninsula’s reconciliation was nonetheless reinforced in 1987 through the addition of the above-cited article 4. Yet, the indirect recognition of the division that this provision implies conflicts with how the boundaries of South Korea’s political sovereignty are still defined by the constitution’s article 3:

The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.

The straight congruence established between the territory of the Republic of Korea (ROK) and the whole Korean peninsula rather than its southern half testifies to the official position of the South Korean state in 1948, when it considered itself the only legitimate government in the peninsula. 17 More than 60 years later, this fiction remains legally, if not politically, valid. Throughout the 1990s, the legitimacy of the “other” Korean state continued to be denied by the North and the South despite their concurrent accession to the United Nations in September 1991. Their mutual recognition only occurred with the joint summit of the summer 2000 held in Pyongyang between then 30 Regime Transition and the Judicial Politics of Enmity

North Korean leader Kim Jong-il (Kim Ch ŏ ngil) and South Korean president Kim Dae-jung (Kim Taejung). 18 Apart from references to peaceful unification, the rhetoric of pacifism features saliently in both the preamble and the constitution of 1987, but the language of security never looms far away. For instance, the declared objective to “contribute to lasting world peace and the common prosperity of mankind” is supposed to ensure the realization of a tryptic of unalienable rights akin to those enshrined in the United States Declaration of Independence: life, liberty, and the pursuit of happiness. 19 However, in the Korean version, the enumeration becomes “security, liberty, and happiness for ourselves and our posterity forever.” The South Korean constitution’s concern for security is under- standable in the context of the persistent division of the peninsula. The conflictual nature of inter-Korean relations has both endured and yet transformed throughout the past 60 years. On the macro scale of historical events, a radical shift of power has occurred between the North and the South, which economically found itself at a comparative disadvantage in 1945 when most infrastructures and mineral resources were concentrated in the peninsula’s northern half, a pivotal region in Japan’s war economy.20 Despite the massive destructions suffered by the North as a result of American bombings during the Korean War, the country continued to be more industrial- ized and affluent than the South until the latter entered a period of accelerated export-led economic development in the mid-1960s. The South now enjoys a level of prosperity that contrasts with the North’s collapse following decades of mismanagement and the breakdown of its Soviet patron. The repercussions of communism’s fall in Russia and Europe were also political, as North Korea became unprecedentedly isolated and marginalized from the international community. 21 Notwithstanding apparent changes in inter-Korean relations at the turn of the new millennium, hostility has not waned in the peninsula. Since the end of the Korean War, threats from the North have taken many forms, such as targeted attacks against the South Korean leadership (most prominently with an aborted raid against the Blue House in 1968 and the failed assassination of President Chun Doo- hwan in Rangoon in 1983); infiltrations, kidnappings, and incidents along the Demilitarized Zone (or DMZ, which serves as a border heavily guarded on each side by military forces); naval conflicts, particularly in the Yellow Sea where the demarcation of the Northern Limit Zone is disputed (the last major incident being the March 16, 2010, Transitioning by Amendment 31 sinking of a South Korean vessel in which 46 sailors died); and, more exceptionally, terrorist attacks (the bombing of the Korean Air Flight 858 on November 29, 1987, which caused the death of more than one hundred civilian passengers and eleven crew members led the US State Department to inscribe North Korea on the list of states sponsoring terrorism, from which it was removed in 2008). 22

The Reform of Constitutional Emergency Powers

South Korea constitutional norms are not silent when it comes to threats, echoing the experience of various political systems going as far back as Ancient Rome, which have been faced with the triadic challenge of being exposed to exceptional circumstances and surmounting them without falling outside rules. Indeed, departing from the “normal”—as the ordinary state of affairs—does not inevitably entail to depart from the “norm” and can take place within rather than outside the legal order, by resorting to constitutional arrangements specifically designed to cope with the exception. Such arrangements are generally known as emergency institutions, many of which have been historically modeled after the example of the Roman dictatorship.23 Contemporary constitutions, written and unwritten, vary in the degree of precision and thoroughness that accompanies their emergency institutions. While the suspension of habeas corpus, from which is derived the possibility to implement martial law, is parsimoniously alluded to in the constitution of the United States (article 9, section 1, clause 2), emergency provisions are laid out with a greater wealth of details in other documents, such as article 115a of the 1949 German basic law on the state of defense or article 16 of the 1958 French constitution regarding the exceptional powers of the president. Similarly, the South Korean constitution of 1987 contains elaborate provisions about emergency powers in its articles 76 and 77. Both are located in chapter IV, section 1, dedicated to the powers of the executive. Article 76 sets the conditions under which the president can issue orders that have the effect of legislative acts: “in time of internal turmoil, external menace, natural calamity or a grave financial or economic crisis,” as well as “in case of major hostilities affecting national security.” Such executive orders must be notified to the unicameral parliament—the National Assembly (kukhoe)—and its retrospective approval has to be obtained, otherwise “the actions or orders shall lose effect forthwith.” 32 Regime Transition and the Judicial Politics of Enmity

As with article 16 of the French constitution, the extraordinary powers of the presidency are not conferred upon it by an external source of power. In other words, the parliament is not in charge of determining whether the conditions to declare a state of emergency are fulfilled, as in the German case. In a strict sense, South Korean article 76 and French article 16 do not conform to the condition of ex-ante authorization or “heteroinvestiture” found in the Roman dictatorship.24 Nonetheless, the decisions taken in the course of a crisis are subject to a variety of continuing and a posteriori controls in both cases. Moreover, the president’s freedom to interpret emergency institutions and declare the exception is counterbalanced by the parliament’s freedom to interpret the crime of treason for which the head of state can be criminally charged as pointed out by Michel Troper. 25 Consequently, neither French article 16 nor South Korean article 76 allows the executive to construe the exception at will. The focus of institutional controls slightly varies between the two cases. Subsequent to the constitutional revision of 2008, the French constitutional council now has to determine whether the conditions that led to the declaration of emergency continue to apply, while in the South Korean text the National Assembly has to retrospectively approve all measures taken by the executive in response to a crisis. This important parliamentary check imposed on the presidential power to act during exceptional circumstances was quickly agreed upon by the ruling and opposition parties during the political negotiations preparing the constitutional revision of 1987. 26 The 1980 constitution was indeed characterized by an unrestricted system of presidential emergency measures. Ruling by emergency decrees was also a well-tried practice of the Park Chung-hee regime in the 1970s, and three of them were recently declared unconstitutional by the Constitutional Court of Korea, as analyzed in Chapter Three . In addition to presidential emergency powers, martial law represents another device used and abused by South Korean authoritarian regimes, hence the attempt of the 1987 constitution to regulate its applicability in article 77. Most importantly, the new provision intro- duces the requirement that the president complies with the decision of the National Assembly “when [it] requests the lifting of martial law with the concurrent vote of a majority of [its] total members.” Here again, the absence of ex-ante authorization is compensated by the role of potential censor attributed to the parliament. Even though the South Korean president does not enjoy unchecked powers in the face Transitioning by Amendment 33 of exceptional circumstances, he remains unmistakably designated by the 1987 constitution as the actor with preeminent impulse in “matters relating to the national destiny,” including national security, as article 66 makes clear. When it comes to the distribution of war powers, the South Korean arrangements resemble the US scheme with the president being commander in chief of the armed forces, while the parliament has “the right to consent to the declaration of war, the dispatch of armed forces to foreign states, and the stationing of alien forces in the territory of the Republic of Korea.”27 This last element echoes the strength of the US military presence, which has been very significant since the armistice of 1953, with foreign troops currently reaching 28,500 soldiers. Moreover, South Korea does not have full operational control of its own troops as the ROK-US Combined Forces Command is still scheduled to retain the wartime operational control of national armed forces until the mid-2020s. 28 Given South Korea’s subjection to military regimes since 1961, defining the role of the military was one of the divisive issues debated during the talks held between the government and the organized political opposition to revise the constitution in the summer of 1987. While the opposition party “wanted the preamble to proscribe the military’s involvement in politics and the body [of the constitution] to forbid ‘any kind of military intervention for any reason,’” the ruling camp insisted on retaining the description of the army as being in charge of “the sacred mission of national security and the defense of the land.” 29 The formulation adopted in article 5, section 2, of the final text literally juxtaposes both exigencies: “the Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be maintained.” Such an outcome illustrates the type of compromise struck during the process of elaborating the constitutional revision of 1987, of which the Constitutional Court of Korea’s conception is another example.

The Making of the Constitutional Court (1): The 1987 Political Bargain

The negotiation format that the Democratic Justice Party, led by Roh Tae-woo, and the newly formed opposition Reunification Democratic Party (t’ongil minjudang—RDP), dominated by the rival factions of 34 Regime Transition and the Judicial Politics of Enmity

Kim Young-sam (Kim Y ŏ ngsam) and Kim Dae-jung, agreed upon was the following:

The two parties alone would reach a bipartisan proposal not by vote but by mutual compromise during the Eight-Member Political Talks (EMPT). Next they would invite minor parties to participate in a Special Committee for Constitutional Revision (SCCR) in the National Assembly to turn the bipartisan proposal into a formal constitutional amendment bill for adoption by referendum.30

The Eight-Member Political Talks (8in ch ŏ ngch’i hoedam) proceeded daily from August 3 to 31, 1987, when a final compromise was adopted. The creation of a constitutional court features among the institutional changes decided by the two camps, although judicial review in itself was not a novelty introduced by the constitution of 1987 as discussed in Chapter One . The choice to confer this power to a specialized constitutional adjudicator rather than to the ordinary court system, at the top of which sits the Supreme Court of Korea, was not predetermined as each option was given consideration. According to the constitutional court’s own account of the events,

During the revision process, different political factions expressed different views on how to structure the system of constitutional adjudication. As of July 1987, during the initial stages of negotiations within the National Assembly, the ruling party and the opposition were all in agreement as regards the idea of granting the power of judicial review to the Supreme Court. However, as negotiations progressed, the idea of adopting the system of constitutional complaints began to emerge, and both the ruling party and the opposition eventually agreed to establish an independent Constitutional Court for adjudicating constitutional complaints. 31

This narrative appears to simplify and mischaracterize actors’ positions when contrasted with Cho Jung-Kwan’s study of the constitution- making process during August 1987. To Cho, the ruling Democratic Justice Party did not enter the Eight-Member Political Talks supporting the proposal to grant the supreme court the power to review the constitutionality of laws. Indeed, the party’s stance regarding existing Transitioning by Amendment 35 institutions in general, and judicial institutions in particular, was to ensure as minimal as possible a departure from the framework of the Fifth Republic. The mechanism for judicial review provided by the 1980 constitution being a constitutional committee separate from the judiciary, the Democratic Justice Party limited itself to advocate its transformation into a constitutional court. On the contrary, the opposition Reunification Democratic Party defended the project to transfer the power of judicial review from the ineffective constitutional committee to the supreme court, while reforming the procedure to appoint its members by requiring that the president of the ROK (responsible for all appointments under the 1980 constitution) “secure recommendations and consent from an autonomous judges council.” 32 None of these ideas, however, was retained in the final compromise. By the end of August 1987, the opposition con- sented to many concessions, including more important ones than the reform of constitutional justice, which did not appear at the forefront of the negotiations that lasted less than a month. In the words of Kim Young-sam, the leader of the Reunification Democratic Party at the time, the feeling then prevailing within the opposition was that “since ninety percent was already obtained by introduction of direct presidential election, we did not need to delay the political schedule because of a mere ten percent remaining.” 33 Those “ninety percent” did not only concern the directness of the presidential elections but also the length and renewability of the presidential term. The present version of the constitution states that the president, elected for five years, shall not be reelected as prescribed by article 70. In addition, article 128, section 2, guarantees that article 70 cannot be revised and the presidential term prolonged to benefit the incumbent. 34 Interestingly, similar provisions were already inserted in the 1980 constitution, in which the presidential office was defined as “a one-time, seven-year term, with no possibility for constitutional amendment to extend one’s term or seek a second term.”35 According to Yoon Dae-Kyu, this prohibition was aimed at compensating the lack of legitimacy of the military leadership, irremediably stained by the coup d’é tat, nationwide imposition of martial law, and bloodshed of Kwangju through which it seized power. 36 Obviously, the term limit introduced in 1980 was not a sufficient guarantee against undemocratic rule since presidential elections remained indirect, ensuring that General Chun Doo-hwan and his associates would continue to govern even after the end of Chun’s mandate. In 36 Regime Transition and the Judicial Politics of Enmity

1987, the one-term limit was retained out of a compromise between the future candidates of the coming presidential race: Roh Tae-woo, Kim Young-sam, and Kim Dae-jung. 37 The provision did produce some of its intended effects as the three rivals of 1987 succeeded one another at the head of South Korea. 38 This rotation was made possible by the institutional mechanisms established in articles 70 and 128, without being preordained by them. As discussed in Chapter One, the logic of strategic and self-interested choices on the part of constitution-makers is powerful, yet not exhaustive to account for the birth and development of institutions. On many issues, moreover, both parties—and especially the opposition—had to settle for a less preferred option than their initial choice, as happened with the reform of judicial review. Agreeing to the ruling camp’s proposal to create a constitutional court did not represent a one-sided concession on the part of the opposition. Indeed, not only did the constitution of the democratic Second Republic provide a framework for the new institution, but a court separate from the judiciary could also be granted a competence that had never existed before in any South Korean system of judicial review: the power to adjudicate constitutional complaints. The primary purpose of constitutional complaints is to enable individuals who allege that one of their basic rights has been violated by an exercise of state power to directly bring their case before the constitutional adjudicator. This procedure is believed to be particularly relevant in post-transitional contexts as it is considered to make possible an effective protection of basic rights. The mechanism itself is deeply associated with German constitutional justice, which is why the Constitutional Court of Korea is often said to have been modeled after the Federal Constitutional Court of Germany sitting in Karlsruhe. The kinship between the two courts is real but should not be exaggerated. A close comparative examination of both institutions reveals that the borrowings made by the South Korean court to its then West German counterpart were highly selective, suggesting that the notion of institutional graft or transplant does not adequately capture the formation process involved in the case at hand.

The Making of the Constitutional Court (2): From Selective Borrowing to Creative Adaptation

Composition and Jurisdiction In terms of composition, the two courts notably present little like- ness. While the Federal Constitutional Court of Germany is made of Transitioning by Amendment 37 sixteen justices chosen for a twelve-year term by the parliament, the Constitutional Court of Korea appears to be fashioned after the “unre- alized” constitutional court of 1960. It consists of nine full-time members (only six of them were full-time members in 1987), appointed for a six-year renewable term.39 Although all justices are formally appointed by the president of the ROK, the selection process is evenly divided between the executive, the judiciary, and the parliament, as each branch nominates three judges.40 The president also designates the head of the constitutional court among the three candidates of his or her choice and the nomination has to be validated by the legislature. 41 An important informal rule has developed regarding the three justices nominated by the National Assembly, with one of them being chosen by the opposition while another is selected as a result of an agreement between the majority and the opposition. 42 This second constraint, of more recent origin than the first, has produced a deadlock situation throughout 2012, leaving the court with only eight justices for a year as rival parties could not settle on a common candidate.43 A further transformation of the selection process was initiated in September 2000 with the start of confirmation hearings for the appointment of the president of the court as well as for the parliament’s nominees. This practice was extended to the presidency’s and judiciary’s candidates in September 2006. 44 In terms of jurisdiction, the Constitutional Court of Korea is endowed with five competences, which can be subsumed under four functions: controlling the conformity of laws to the text of the constitution; militating against threats to the constitutional order emanating from public officials or political parties, in which case they can be respectively impeached or dissolved; rationalizing the legal order by solving conflicts among different levels of government; and protecting fundamental rights through the adjudication of constitutional complaints. 45 Enumerated in article 111 of the 1987 constitution, each of these competences is elaborated in the Constitutional Court Act enacted on August 5, 1988. Drafted almost a year after the political talks and compromise of August 1987, the Constitutional Court Act was designed to “set forth the provisions necessary for the organization and operation of the Constitutional Court and its adjudication procedures,” issues that had not been decided at the time of the constitutional revision. 46 The political configuration in the summer 1988, however, was different from when the ruling Democratic Justice Party and opposition Reunification Democratic Party negotiated a year before. The Constitutional Court Act was passed after the legislative elections of April 1988 in which the former remained the strongest party in the National Assembly but lost its absolute majority, while the 38 Regime Transition and the Judicial Politics of Enmity previously united opposition was now split between Kim Young-sam’s Reunification Democratic Party and Kim Dae-jung’s Party for Peace and Democracy (p’y ŏ nghwa minjudang—PPD). 47

Constitutional Review of Legislation through and outside Ordinary Courts Checking the compatibility of laws with constitutional norms forms the essence of constitutional review. This task is relatively of recent origin in the history of judicial institutions, having been invented or “discovered” by the U.S. Supreme Court in its 1803 Marbury v. Madison ruling. 48 As previously mentioned, the model of decentralized judicial review associated with the American system can be contrasted with the centralized model of constitutional adjudication that appeared in Europe in the 1920s. Within the centralized system, specialized constitutional courts can perform different modes of review. The type of constitutional review implied in article 111, section 1, of the South Korean constitution is a posteriori or reactive, taking place once laws are enacted and in force (by opposition to an a priori, or preventive, form of control occurring before the lawmaking process is completed as was the only available way in France before the 2008 revision of the constitution). It is also a concrete, or incidental, mode of review, that is to say, happening in the course of a concrete dispute (by opposition to abstract review, when the constitutional adjudicator intervenes regardless of whether the challenged statute applies to a concrete case). In the system of centralized adjudication, ordinary courts are not empowered to engage in constitutional interpretation the way they are in decentralized judicial review, but their role is not necessarily void. Indeed, in South Korea’s incidental type of constitutional control, ordinary tribunals are in charge of deferring issues before the constitutional court. Consequently, they may also filter what gets decided by the institution, a potential source of discretion and inaction that raised concerns in the post-authoritarian context.49 As a result, a remedy against the possible obstruction of ordinary tribunals was explicitly introduced in article 68, section 2, of the Constitutional Court Act, ensuring that a request for review can be directly filed by litigants if an ordinary tribunal declines to ask the constitutional court to examine a statute’s validity. 50 Such a mechanism offers parties the opportunity to bypass the possible reluctance of ordinary courts to activate judicial review, which was considered their dominant attitude under authoritarianism. This disinclination is not only a matter of judicial independence but also of institutional rivalry as established institutions can be—and often Transitioning by Amendment 39 are—unwilling to cooperate with new ones that encroach upon their entrenched interests. This has been the situation in South Korea where the supreme and constitutional courts were and, to a certain extent, still are in competition for institutional preeminence as discussed in Chapter Four .

The Moving Contours of the Protection against Basic Rights Violations In addition to reviewing laws’ constitutionality upon the request of an ordinary tribunal (article 41 of the Constitutional Court Act) or one of the parties (article 68, section 2, of the Constitutional Court Act) in the course of a legal dispute, a third channel exists to trigger the South Korean court’s intervention: through direct constitutional complaints against state power.51 Article 68, section 1, of the Constitutional Court Act entitles “any person who claims his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power” to file a constitutional complaint, “except [against] the judgments of the ordinary courts” and “provided that if any relief process is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes.” After this provision was enacted in 1988, there was no sense of certainty about how it would work in practice and how heavily the enunciated restrictions would weigh on its use. The exception according to which ordinary courts’ judgments cannot be reviewed does not exist in Germany and was consequently lamented by several constitutional activists. 52 Doubts also arose from the fact that the Constitutional Court Act did not indi- cate what constituted “an exercise or non-exercise of governmental power,” leaving it to the court to define this notion. Progressively, the scope of governmental power falling under article 68, section 1, was specified, and extended, by constitutional jurisprudence. It was first interpreted to encompass legislative power, thereby allowing individuals to seek relief against statutes and treaties infringing upon their basic rights outside the course of a concrete dispute. Although the possibility of an abstract control of laws’ constitutionality—which implies that legislative acts may be reviewed outside litigation—is not explicitly provided for in the 1987 constitution or in the 1988 Constitutional Court Act, the court has deduced it from the mechanism of constitutional complaint. 53 The reach of article 68, section 1, was then construed as including executive orders, administrative regulations, and ordinances, as well as state action not subject to administrative litigation. 54 Justices also ruled in 1989 that they could 40 Regime Transition and the Judicial Politics of Enmity declare unconstitutional a prosecutor’s arbitrary decision not to indict a suspect. 55 While almost 80 percent of the cases filed with the Constitutional Court of Korea are constitutional petitions against state power, the majority of them are raised against executive acts and in particular against public prosecutors’ decisions to indict—and more frequently not to indict—a person suspected of a crime. Until 2008, a constitutional complaint represented the “last means available to challenge prosecutors’ broad discretion to indict.” 56 Yet, a ruling of unconstitutionality from the court can only bind prosecutors to reexamine a decision of (non)indictment without forcing them to change its outcome. The Constitutional Court of Korea cannot decline to review legislation referred by ordinary courts, but it can filtrate constitutional complaints as discussed in Chapter One . Although most petitions are dismissed during the screening process conducted by a small bench of three justices or later rejected by a decision of the full bench, these rulings are no less important or “positive” than (un)constitutionality judgments, for they enact moments when the court decides not to rule, a position that is not a neutral choice but can instead constitute a political one as various cases analyzed in this research demonstrate. 57

Rationalization of the Legal Order The Constitutional Court of Korea’s jurisdiction over “competence disputes between State agencies, between States agencies and local governments, and between local governments” has only drawn an infinitesimal portion of cases. This function, however, is not a marginal one in the broader history of judicial review. Seminal institutions such as the U.S. Supreme Court or the constitutional courts of Austria and Czechoslovakia (the first ones to emerge on the European continent in the early 1920s) were not created to ensure the protection of individual basic rights, which is recognized as courts’ primary purpose today. Judicial review first appeared as a mechanism designed to stabilize the hierarchy of norms, a need that exists in any rational legal system whether democratic or not. Therefore, it is not a coincidence if the earliest constitutional courts developed in federal polities where conflicts between national and local legislations had to be reconciled. By contrast, the Republic of Korea has had a long tradition of centralized government. After the 1987 transition and especially since the mid-1990s, local autonomy has progressively increased, leading to more cases of competence disputes being filed with the constitutional court Transitioning by Amendment 41 in recent years. While only nine were brought to the court between 1988 and 1998, this number was almost five times higher in the following decade, reaching a total of 84 cases by January 2015.

Militant Powers and the Defense of the Democratic Order Two of the court’s powers enumerated in article 111 of the constitution may seem highly politically charged: impeachment and parties’ dissolution. These responsibilities are precisely conferred upon the court so that they can be withdrawn from the realm of pure partisan decision-making and thus receive an extra-political source of legitimacy. Both the impeachment and dissolution procedures sanction the same type of behavior from public officials or political parties: acting in contradiction with the “basic order of free democracy.” More specifically, the power to impeach enables the court to remove a high- profile public official (such as the president of the Republic, prime minister, members of the State Council and ministers, etc.) from office if he or she has committed a grave violation of the constitution or the laws. 58 Impeachment resolutions are passed by the unicameral parliament, leading to a trial where the chairman of the National Assembly’s Legislation and Judiciary Committee (p ŏ pche pŏ psa wiw ŏ nhoe) acts as the impeachment prosecutor and the constitutional court as the adjudicator. The impeachment procedure was used on one occasion since the beginning of the Sixth Republic, against President Roh Moo-hyun in the spring of 2004, as analyzed in Chapter Four .59 The other possible involvement of the court in defense of the democratic order stems from its power to disband political parties whose aims or activities contradict constitutional norms and values. This happened with the December 2014 dissolution of the minority Unified Progressive Party evoked in the next chapter. This procedure is exemplary of the means at the disposal of democracies to protect themselves against the forces that try to subvert them by abusing their own rules and principles—such as freedom of speech or association. The notion of “militant democracy” captures the attitude of regimes that prevent constitutional rights and institutions from being used in a way meant to undermine the democratic order. This concept comes from a series of two articles written in 1937 by the German political scientist Karl Loewenstein. 60 His argument and call for democracy to become militant were formulated in the context of the interwar collapse of European liberal regimes under the blows of fascism. To Loewenstein, democracies could not let themselves be destroyed at the hand of their 42 Regime Transition and the Judicial Politics of Enmity enemies—the individuals or parties who were manipulating the institutions and principles of the democratic order to overthrow it. 61 Instead, democracies had to restrict the use of the rights and freedoms formally granted to all for the sake of their own survival. 62 Outlawing extremist parties and behaviors therefore had to be the primary purpose of militant legislation according to Loewenstein. Both during the interwar years and today, democratic militancy has primarily relied on legislative means. 63 Its logic has also been enshrined in some constitutional texts following the end of World War II, such as the 1949 Basic Law for the Federal Republic of Germany. It should come as no surprise that Germany embodies the paradigmatic case of militant democracy given the trauma left by the failure of the Republic of Weimar in 1933, considered by Loewenstein and others as a regime that broke down because it did not resist against its adversaries. The principle of democratic militancy is also consecrated in South Korea’s constitution since the revision of 1960, which established the Second Republic and heavily borrowed from the provisions of the German model to protect—in vain—its new and precarious democratic order. As explored in this book, however, the task and language of defending the constitutional order may not only help to safeguard democracy against political threats. They can also contribute to fashioning a certain kind of polity from which some actors will be excluded: Nazis and Communists in postwar West Germany; the forces behind the popular democratization movement in post-1987 South Korea. 64

Adjudication Procedures The Constitutional Court of Korea’s adjudication procedures also illustrate how the institution is a mix of both idiosyncratic elements and occasional transfers. A distinctive feature of the current court, inherited from its 1960 model, rests in its supermajority constraint as the vote of six justices (instead of five for a simple majority) is necessary for a decision of unconstitutionality to be pronounced. 65 In addition to this structural difficulty to invalidate a legislative act, the court has manifested early on its reluctance to render a straight unconstitutionality ruling. 66 As a result, the institution adopted the German practice of modified holdings, which provides greater flexibility in reviewing statutes’ constitutionality. Alongside the dichotomous possibility to declare a legislative provision constitutional (haph ŏ n) or unconstitutional (wih ŏ n), the court has also engaged in rulings of limited constitutionality (hanj ŏ ng Transitioning by Amendment 43 haphŏ n) and limited unconstitutionality (hanjŏ ng wih ŏ n), as well as incompatibility with the constitution (hŏ np ŏ p pulhapch’i). Decisions of partial (un)constitutionality are fundamentally similar in terms of legal effects, reflecting the court’s “preference for constitutionally valid interpretation.” 67 Leaving the flawed legislation in place, they create a nonbinding incentive for the legislature to reform the incriminated provisions. The incompatibility decision is used by the court when it censures a statute but holds it applicable until the legislative branch cures the defective law. Constitutional justices usually set a deadline by which lawmakers have to abide and justify the delayed nullification of the provisions as necessary to prevent the emergence of a “legal void.” The tools of reasoning deployed in the court’s decisions have been strongly influenced by the practice of other institutions. With the passing of time, the Constitutional Court of Korea has notably refined its application of a stricter four-step proportionality test comparable to the one elaborated in Europe or Israel. 68 The appeal of the continental model thus coexists with alternative sources of reference, most prominently from the United States. Customary in the common law tradition, the publication of dissenting opinions was adopted by the Federal Constitutional Court of Germany in 1971 and by the Constitutional Court of Korea since its inception. As a matter of fact, “the practice became particularly identified in the first term with the single justice nominated by opposition parties in the National Assembly,” Byun Jeong-soo (Py ŏ n Ch ŏ ngsu), whereas in the second term of the court, “this role shifted to Justice Cho Seung-hyung [Cho Sŭ nghy ŏ ng], another Kim Dae-jung appointee.” 69 Byun is most famously associated with the dissenting opinion he wrote against the constitutionality of the National Security Act’s article 7 in 1990, while Cho has continued to criticize the provisions of the law subsequently examined by the court. Yet, their disagreements with the majority did not primarily rest on diverging understandings of national security as both Byun and Cho recognized the serious threat posed by North Korea in the context of the division, thereby inscribing their dissent within a discursive order whose contours will be analyzed in Chapter Four .

A Court under Constraints

The review mechanisms created by the revised constitution of 1987 and the Constitutional Court Act of 1988, including the procedure of 44 Regime Transition and the Judicial Politics of Enmity direct constitutional complaints, did not necessarily ensure that constitutional justice would be strong enough to effectively protect basic rights in the post-authoritarian era. On the contrary, a number of constraints could have limited the new institution’s ability to actively intervene, such as the prerequisite that litigants exhaust all remedies before filing a constitutional petition, the impossibility to challenge the constitutionality of judgments delivered by ordinary courts, as well as the risk that the latter would not enthusiastically request the review of existing statutes.70 Among further potential obstacles were also the supermajority requirement commanding the vote of six justices out of nine to render a decision of unconstitutionality and the undefined notion of state power, which the court could have interpreted restric- tively in its jurisprudence. These elements suggest that the Constitutional Court of Korea was not created to play the vigorous role that it is now seen to occupy. Conversely, the court’s initial weaknesses did not condition its path. As a result, it can be argued that nascent institutions are never predestined to become what they are at some later point in time. Their formal design matters as it allows or precludes possible trajectories, without prescribing a single and particular one. This dimension of uncertainty is often forgotten when analyzing institutions, especially when their well-established authority exudes an impression of naturalness, which conceals their constructed strength and legitimacy. These qualities are always acquired and even conquered rather than inherent. Texts alone do not suffice to bequeath them. Such a reality not only applies to the Constitutional Court of Korea but also to the Federal Constitutional Court of Germany or the U.S. Supreme Court, whose celebrated paths and successes were not ingrained in the story of their origins. For instance, the recognition of the German constitutional court as a national symbol was only consecrated three decades after its creation. 71 As for the U.S. Supreme Court, its Marbury v. Madison decision of 1803, associated with the creation of judicial review, did not instate the court in the powerful position that it enjoys today. After Marbury, the institution refrained from using its self-conferred power to strike down a federal statute for more than 50 years, until the infamous Dred Scott decision of 1857 held the Missouri Compromise of 1820 unconstitutional. 72 In light of this broader pattern, it is no wonder that much uncertainty surrounded the birth of South Korea’s constitutional court. Doubts did not only project their shadow over the issue of how provisions regulat- ing the new institution would be interpreted. They were also tied to a Transitioning by Amendment 45 more general concern about the fate of democratization in the country. Many contemporary observers seem to have shared the perception that the court’s potential role and independence were not solely in its hands but highly subject to external factors such as how the separation of powers between the executive and legislative branches would consolidate.

As of March 1988, it is too early to pronounce the Constitution[al] Court stillborn, but it is also too early to offer an optimistic prog- nosis about its future guardianship of human rights. At best, the Constitution[al] Court will reflect and coordinate a separation of powers instituted through political processes. It cannot be relied upon to discharge the threshold task of overcoming South Korea’s long-entrenched military-executive supremacy. In the short term, if the National Assembly elections result in an opposition majority and this majority succeeds in achieving legislative autonomy, then the Constitution[al] Court may become a very significant factor. On the other hand, if no true separation of powers can be instituted, the Court may not play a major role in protecting human rights. 73

While democratization did not suffer any significant reversal in the aftermath of the transition, the process of its entrenchment has neither been smooth nor linear. It took a decade before the first alternation of parties in power occurred, as the two initial presidents of South Korea, Roh Tae-woo and Kim Young-sam, were members of the same conservative coalition. This was the outcome of an unexpected merger between their camps in 1990, which allowed Kim, a long-time critic of military rule, to ally with the political forces behind Roh, the ex- general and handpicked successor of former dictator Chun Doo-hwan. Roh’s election as first president of the Sixth Republic was itself responsible for much of the skepticism surrounding the political future of the young democratic regime. It is during his mandate that the major attempt at reducing the burgeoning constitutional court’s powers was made, following a 1992 proposal to confine the court’s jurisdiction to arbitrating conflicts of interbranch disputes. 74 This episode confirms that the new system of constitutional review was not deliberately designed to be strong and proactive, with the ruling party seeking to sanction the court only a few years after its creation. The way in which constitutional justice has developed was therefore far from being preordained by the intentions and choices of 46 Regime Transition and the Judicial Politics of Enmity political actors in a context of electoral volatility. Although factors such as the diffusion of power between the political parties and, maybe more importantly, between the different branches of government (something that was not guaranteed in the aftermath of the transition) mattered, they may have only contingently sustained the possibility for an independent court to emerge and assert itself. Consequently, the critical force behind the court’s empowerment is likely to be found elsewhere as the next chapter details. CHAPTER THREE Post-Authoritarian Contentious Politics : Constitutional Empowerment from Below

If the activation of judicial review did not result from political elites’ strategic design at the time of the 1987 transition, the conditions that led to the Constitutional Court of Korea’s empowerment deserve to be questioned. This chapter argues that constitutional justice was mainly invested from below as a site for contesting the non-inclusive legacy of the transition to democracy, that is, the continued deployment of repressive instruments against some of the groups advocating further political and social change. The role of human rights lawyers (inkwŏ n py ŏ nhosa) has been instrumental in this process. Their mobilization has not only implied for attorneys to defend individuals incriminated under the National Security Act or to challenge the constitutionality of existing criminal laws and practices, but also to involve the court in the struggle for punishing past wrongdoings and wrongdoers. In this regard, South Korea’s path to transitional justice—or its avoidance— illustrates the extent to which the definition of enmity has remained a deep object of contention in the post-authoritarian period and how ambiguous the constitutional court’s intervention has been in this major conflict between the state and civil society.

The 1987 Transition to Democracy and the Displacement of Enmity

Whether political change is brought about by a “ruptured” transition (in which the old regime is defeated), or a “pacted” one (when reform 48 Regime Transition and the Judicial Politics of Enmity is the product of negotiations between the ruling elite and the opposition), the amnesty of political prisoners usually stands as a preliminary and emblematic step in the effort to rectify the politics of enmity imposed under authoritarian rule. In most transitional settings, the release of political prisoners is a characteristic claim of the opposition and a symbolic measure implemented early on. According to Pierre Lascoumes’s comparative study of prison policies in Germany, Russia, South Africa, and Turkey during the 1990s, the prison population of each country significantly decreased within a few months after the process of regime change began, reflecting a broad categorization of the notion of “political prisoners” in order to signal a clear break with the past. 1 With the boundaries of political participation being redefined after the transition, yesterday’s opponents cease to be criminalized or persecuted for activities that become not only tolerated but also rou- tinized as part of the new order. Some of them even accede to power after having spent years behind bars or in exile, like Nelson Mandela or, in the South Korean context, Kim Dae-jung, respectively elected presidents in May 1994 and December 1997. As soon as the transitional process is set in motion and initiatives adopted to undo the repressive policies of the former regime (amnesty of political prisoners, protection of habeas corpus rights, etc.), limits can appear in the redefinition of enmity. As noted by Lascoumes, the generous amnesty measures announced in Turkey, Russia, and South Africa were often restricted in practice by “domestic policy concerns (the struggle against groups identified as terrorists in Turkey) and the blurriness of the frontiers between common criminality and political actions (individuals convicted for economic motives in ex-USSR and nationalist groups from South African townships).”2 Similar dynamics have been at play in South Korea. The amnesty of political prisoners was one of the promises of Roh Tae-woo’s June 29, 1987, speech. By the month of July, “the government paroled 357 political offenders, amnestied more than 2,000 other prisoners, and restored full political rights to prominent opposition figure Kim Dae-jung.” 3 Repressive instruments such as the National Security Act, however, were soon revived to tackle the resilient mobilization of forces advocating further political and social change after the change of regime: the people’s movement groups (minjung undong tanch’e) contesting the limits of democracy as institutionalized in the late 1980s. 4 Officially, the purpose of the National Security Act is to suppress the activities of “antistate organizations” (pan’gukka tanch’e) defined since 1948 as the groups that “claim the title of government” (i.e., Post-Authoritarian Contentious Politics 49

North Korea) or aim at “disrupting the state.” In the wake of South Korea’s 1987 transition to democracy, successive governments have justified the permanence of the security legislation in light of the enduring threat posed by the scission of the peninsula. Yet, the law has not only remained in the books but has also been actively resorted to under most administrations since 1987, at times more intensively than during the authoritarian period and regardless of provocations emanating from the North. 5 Marginally dealt with in the literature on post-1987 politics, this problematic dimension of the democratic era has not been entirely neglected as demonstrated by the pioneering study of William Shaw on human rights, the work of legal scholars such as Cho Kuk, and the more recent contributions of José Alemá n, Nam Taehyun, or Shin Gi-Wook and his colleagues. 6 Among sources available in Korean language, the National Human Rights Commission (kukka inkw ŏ n wiwŏ nhoe) has best contributed to document in a systematic way repressive patterns since the late 1980s. 7 In particular, its 2004 Report on the Situation of Human Rights Arising from the Application of the National Security Act established that 1,529 individuals were prosecuted under the National Security Act between 1988 and 1992. This figure exceeded the 1,093 prosecutions registered from 1980 to 1986 during the Chun Doo-hwan regime, after the Anti-Communist Act (pan’gongp ŏ p) enacted in 1961 was abolished and some of its provisions incorporated in the security legislation. 8 The number of prosecutions rose to 1,989 from 1993 to 1997 and reached 1,058 between 1998 and 2002 as described in figure 3.1 .9 The sustained application of the National Security Act has not only characterized the presidency of Roh Tae-woo (February 1988– February 1993), who personally embodied the continuity between the old regime and the new order, but also the civilian administration of Kim Young-sam (February 1993–February 1998) and the so-called human rights era advocated by Kim Dae-jung (February 1998– February 2003). Let us recall that Kim Young-sam and Kim Dae-jung were politicians who opposed the authoritarian regimes and participated in the 1987 negotiations to revise the constitution. Later that year, both Kims separately ran for presidency, thereby enabling the victory of Roh Tae-woo.10 The ensuing disenchantment of pro-democracy groups with the political sphere heightened when Kim Young-sam’s opposition party merged with Roh’s ruling camp to give birth to the Democratic Liberal Party (minju chayudang—DLP) in 1990, an alliance that made 50 Regime Transition and the Judicial Politics of Enmity

700

627 633 600

507 500 432 414 396 403 400 413 381 366 368 329 312 357 322 318 342 300 270 254 288 276 260 204 208 194 196 228 171 226 200 207 217 169 156 152 176 175 140 86 164 121 131 136 153 100 136 100 124 116 57 104 9 65 93 26 48 69 74 35 8 2 5 28 22 12 30 23 13

0 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02

National Security Act Anti-Communist Act

Figure 3.1 Number of individuals annually prosecuted under the National Security Act and the Anti-Communist Act between 1961 and 2002. Source : Based on the estimates of the National Human Rights Commission of Korea. it possible for Kim Young-sam to be elected president in December 1992.11 The first alternation in power only occurred when Kim Dae- jung won the December 1997 presidential elections. 12 Although Kim himself had been arrested and sentenced twice under the National Security Act in the 1970s and early 1980s, the security legislation continued to be frequently applied during his administration while Kim Jong-pil (Kim Chongp’il), a close associate of Park Chung-hee, served as prime minister during the first two years of his presidential mandate (August 1998–January 2000). 13 The National Security Act has therefore resisted the test of the transition to democracy in 1987, the first political alternation in power in 1998, and even the attempt by one administration to repeal it in the mid-2000s as explored in Chapter Four . The specific post-authoritarian uses made of the law can be refined by examining which of its provisions have been most heavily applied as shown in figure 3.2 . Between 1993 and 2002, provisions related to forming antistate groups (article 3), committing antistate acts (article 4), infiltrating from or escaping to North Korea (article 6), communicating with antistate groups and their members (article 8) or aiding them (article 9), as well as not reporting antistate acts (article 10), were only incidentally resorted Article 10 (Failure to report antistate acts) 4 0 Article 9 (Aiding) 12 6 5 Article 4 (Commission of antistate acts) 8 Article 8 (Communication) 53 28 Article 6 (Infiltration and escape) 14 23 Article 3 (Formation of antistate group) 110 22 Article 7 (Praising or sympathizing) 1791 971 0 200 400 600 800 1000 1200 1400 1600 1800 2000 Under the government of Kim Young-sam Under the government of Kim Dae-jung

Figure 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). Source : Based on the estimates of the National Human Rights Commission of Korea. 52 Regime Transition and the Judicial Politics of Enmity to compared with the prohibition of “praising or sympathizing with an antistate organization” under article 7. These enforcement patterns reveal that the greatest challenge associated with national security after the transition has not resulted from antistate acts such as espionage but has instead derived from certain forms of expression: “praising” (ch’anyang), “encouraging” (komu), “propagandizing” (sŏ njŏ n), or “sympathizing with” (tongjo) an “antistate organization,” its “members,” or “any individual receiving orders from them.” Looking more closely at the categories of individuals targeted by the National Security Act indicates that student activists and intellectuals have been disproportionately prosecuted under the security legislation, mostly for the speech crimes sanctioned under article 7 as shown in table 3.1 . The two main trends in the enforcement of the National Security Act after 1987—the disproportionate amount of prosecutions for speech crimes under article 7 and the targeting of students and intellectuals (including human rights activists, dissident clergy, and journalists)— call into question many scholars’ claim that the deployment of security instruments has predominantly been a function of sustained “radical” and at times violent mobilization, in particular from student organizations. 14 As chronicled by Kihl Young Whan in the late 1980s,

Of the total 1.2 million university students, the anti-government radical students represented a small minority of only one or two percent. But they have been well organized and positioned to exert real political pressure and to display strength. They were generally leftist in ideology, openly anti-American, and were sympathetic with the policies of North Korea. 15

Several studies of South Korean civil society’s continued vibrancy after the change of regime have consequently drawn a line of separation

Table 3.1 Classification of individuals prosecuted under the National Security Act per occupation between 1993 and 2002

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Total

Student 31 193 102 318 500 310 227 104 91 114 1,998 Worker 5 38 20 38 44 18 1 2 10 0 176 Intellectual 63 128 110 92 89 71 46 16 15 9 640 Military 13 34 53 51 44 13 14 6 2 3 233 Total 112 393 285 499 677 412 288 128 118 126 3,047

Source : Based on the estimates of the National Human Rights Commission of Korea. Post-Authoritarian Contentious Politics 53 between the confrontational engagement of people’s (minjung) groups with the state and the moderate tactics pursued by citizens (simin) to advance specific causes, such as the transparency of elections. 16 This differentiation connotes that the former are revolutionary, utopian, and antagonistic to public authorities, while the latter are reformist and tolerated, or even accommodated, by them.17 The label “radical” is highly ambiguous in this context, as referring to it amounts to appropriat- ing the language of state policing, conveyed by the conservative press dominating South Korea’s media landscape and adhered to by citizens’ groups themselves. Ironically, the 1990s evolution of South Korean civil society or “great paradigmatic shift from people (minjung) to citizen (simin)” contributed to make the former’s mobilization, demands, and counter-hegemonic (antiauthoritarian, anticapitalistic, anti-imperialist) national imaginary even more marginalized than was the case immediately after the regime change. 18 By contrast, as pointed out by Nancy Abelmann, “the simin concept defines a fragmented space for middle-class dissent that is not articulated in a national imaginary such as minjung.” 19 Ultimately, post-1987 repressive patterns do not appear properly grasped by the thesis according to which the non-demobilization of “radical” groups encouraged the state to respond through pre-transitional channels given the strong permanence of authoritarian “enclaves” and “reflexes” expected in noncrisis transition—that is, in cases where regime change is negotiated between the ruling elite and opposition forces, leaving the former leadership and state apparatus highly influential during and after the transition process. 20 As empirical patterns demonstrate, the National Security Act has been primarily resorted to in order to sanction students and intellectuals for their discursive claims. Against the bulk of the literature, the work of Lee Jung-Eun has contributed to show how the groups articulating anti-government discourse associated with the minjung have been primarily repressed after 1987 as a result of being perceived by authorities as posing an unconditional menace, rather than due to circumstantial factors such as the size and tactics of their protests. Indeed,

People’s movements experienced differential repression due to their categorical threats, independently of the situational threats, targets and goals . . . Whereas the distinction between people’s and citizens’ movements was not salient under authoritarianism because most protests were pro-democracy by nature, it became one of the most important factors that shaped protest policing 54 Regime Transition and the Judicial Politics of Enmity

during democratization, where movement groups sharply diverged between two camps. The categorical threat attributed to people’s movements affected the police’s decision-making process, which resulted in the higher probability of police containment and the higher intensity of repression during their protests than those of citizens’ movements. 21

Rather than being a legacy of the authoritarian era, the resilience of high levels of repression for more than a decade after the change of regime is therefore best understood as an outcome of democracy’s institutionalization to the exclusion of people’s movement groups and their aspiration to embody the “true” Korean nation. In other words, “extensive technologies have been geared to silence the histories and legacies of unrequited nationalisms” not only before but also after South Korea’s 1987 transition. 22 Throughout the 1990s, both the political and business spheres, as well as the conservative mass media and parts of civil society itself (the citizens’ groups), discriminated against the discursive claims of minjung forces, particularly student activists and intellectuals portrayed—and repressed—as radical and violent. Workers also remained active, especially during the so-called Great Struggle of the summer 1987 and throughout the two following years— with 3,749 labor disputes erupting in 1987, 1,873 in 1988, and 1,616 in 1989.23 As trade unions’ demands increasingly focused on specific issues such as wages, their mobilization tended to sever itself from the rest of the minjung movement. When suppressed, workers’ militancy has been mostly handled through extralegal violence and targeted tools of policing, such as anti-demonstration and antiunion laws. 24 Hundreds of labor union members were arrested for offenses such as organizing “illegal strikes” or “obstructing company business” between 1998 and 2002, during the wave of protests following the financial and economic crisis, which marred South Korean economy toward the end of 1997.25 This situation has led Choi Jang-Jip to contend that “the exclusion of labor from party politics did not change under the Kim Dae-jung government” although its administration is considered to have legalized labor’s participation in politics. 26 Over the same period of time, arrests under the security legislation were still numerous but levels of imprisonment eventually fell. In total, nearly a thousand individuals were arrested between February 1998 and July 2002 through the National Security Act but the number of prisoners held under the law had dropped to 39 as 2002 was coming to a close, reflecting a shift in terms of enforcement—with still many Post-Authoritarian Contentious Politics 55 arrests but fewer prosecutions and convictions. 27 The number of people sentenced to imprisonment remained low during the Roh Moo-hyun administration, which even tried to abolish the National Security Act as discussed in the next chapter. 28 With the coming to power of two new conservative administrations under Lee Myung-bak (Yi Myŏ ngbak) from 2008 to 2013, and Park Geun-hye (Pak K ŭ nhye, the daughter of Park Chung-hee) since 2013, investigations of suspected antistate activities have increased again (46 in 2008, 90 in 2011, 129 in 2013), especially due to a stricter policing of the Internet. 29 In 2011, no less than 106 persons were charged with violating the National Security Act, a trend that attracted considerable criticism and worsened under the government of Ms. Park. 30 The resilient deployment of the National Security Act in post-1987 South Korea has not implied the state’s struggle against any kind of social mobilization but rather the security legislation’s use to contain the demands and alternative national discourse of the minjung forces contesting the new political order’s confines. As security tools have prevented this dispute about the boundaries of inclusion and exclusion in South Korean democracy from unfolding in the public sphere, constitutional justice became invested as one of the only available sites to challenge the contours of enmity enforced by the repressive apparatus.

Contesting Enmity Through Constitutional Channels: The Role of Human Rights Lawyers

Far from being spontaneous, this subversive resort to the constitutional stage was made possible thanks to the mediation of human rights lawyers, acting individually or in the frame of associations such as Minbyun (minju sahoe rŭ l wihan pyŏ nhosa moim), the coalition of Lawyers for a Democratic Society. For Minbyun attorneys, challenging the post-authoritarian construction of enmity has meant to reverse its ascription in a double sense: by seeking to decriminalize the activities of pro-democracy minjung activists still suppressed after 1987; and by trying to bring to justice the leaders of the former military regime and perpetrators of the Kwangju massacre, including ex-Presidents Chun Doo-hwan and Roh Tae-woo. As the South Korean case forcefully exemplifies, transitioning to democracy does not entail that the pillars and supporters of yesterday’s order automatically turn into enemies. This configuration is particularly prevalent in negotiated transitions, where the old ruling elite remains an actor of the regular political 56 Regime Transition and the Judicial Politics of Enmity process (through an institutionalized party for instance) and can even stay in power if it wins elections (as happened with the victory of Roh Tae-woo in the presidential race of December 1987). To this potentially problematic outcome corresponds the inverse dilemma in which new democracies find themselves if they choose to prosecute the leaders and partisans of the ancien ré gime. Indeed, the temptation to treat them as enemies is likely to be incompatible with the legal principles upheld in a constitutional system, such as the requirement that no crime be punished without a law (nullum crimen, nulla poena sine lege), for instance, reaffirmed in article 13 of the South Korean constitution. 31 The control exercised by constitutional courts is always reactive, triggered by the actors that set judicial review in motion. As a result, courts can solely pronounce themselves—whether they decide to rule or not—on matters that are brought before them. In the context of post-1987 South Korea, the role played by activist lawyers has been crucial to the investment of constitutional justice as a site for contesting the mechanisms of exclusion enforcing the repressive legacy of the transition. Although representing a minority within the small community of South Korean attorneys, human rights lawyers participated in the transformation of the country’s socio-legal landscape after the change of regime. In the late 1980s, South Korea counted no more than 1,500 licensed attorneys, forming a closely knit profession traditionally marginalized from the military-dominated field of state power and politics (see table 3.2) . 32 Only a handful of them were active in defending the cases of pro-democracy militants under the authoritarian regimes of Park Chung-hee (1961–1979) and Chun Doo-hwan (1980–1987). In 1988, 51 such lawyers founded Minbyun,

Table 3.2 Evolution of the South Korean legal profession between 1971 and 2003

Year Legal Profession Ratio Population per Legal Professional Judge Prosecutor Attorney

1981 571 409 1,013 19,414 1986 837 557 1,483 14,448 1990 1,124 787 2,742 9,213 1995 1,374 987 3,731 7,402 2000 1,724 1,287 4,699 6,097

Source : Based on Dae-Kyu Yoon, “The Paralysis of Legal Education,” in Legal Reform in Korea , ed. Tom Ginsburg (London: RoutledgeCurzon, 2004), p. 41. Post-Authoritarian Contentious Politics 57 established according to the association’s own narrative “during one of Korea’s most repressive regimes—the Roh Tae-Woo dictatorship of the Sixth Republic . . . marked not only by a repression of basic human rights, but also by violence against those who publicly criticized the government.” 33 The literature on legal mobilization in South Korea largely converges over the claim that the birth of Minbyun coincided with “the beginning of a new era in the systematic activities of lawyers.” 34 The group’s aims not only included providing legal services to the individuals continuously sanctioned under existing “evil laws,” such as the National Security Act, but also to advocate their repeal. 35 While the number of persons prosecuted under the National Security Act dropped from over four hundreds in 1987 to about one hundred in 1988, statistics peaked again in 1989 and 1990 to reach their pre-transitional level as described in table 3.1 . 36 In this context,

Minbyun was immediately inundated with requests for legal defense, including the high profile torture-to-death case of Park Jong-Chul [Pak Chongch’ŏ l], the sexual-torture case of Kwon In-Sook [Kwŏ n Insuk] at Bucheon [Puch’ŏ n] Police Station, and the unapproved visit to North Korea taken by Lim Soo-Kyung [Im Sugyŏ ng] and Rev. Moon Ik-Hwan [Mun Ikhwan]. Minbyun defended a number of clients who violated the National Security Act (NSA), including the Socialist Workers Alliance of Korea, a group committed to creating a socialist society, and the Seoul Social Science Research Institute, which produced research on both Marxism and socialism. 37

Post-1987 repression notably centered on any activity connected to North Korea, even when the incriminated acts—such as a newspaper coverage of the country—did not pose a danger to national security. Conversely, reunification imposed itself as one of the major issues in the immediate wake of the regime change. A core claim of the minjung discourse, its advent was deemed coextensive to democratization by many antiregime activists, particularly the student movement and dissident clergy. Indeed,

From the mid-1980s, reunification was considered as important as democratization, but the main focus was on democratization. Social movement groups generally believed that bringing about democratization would facilitate the discussion of reunification 58 Regime Transition and the Judicial Politics of Enmity

and other issues. After the June democracy movement in 1987, the breakdown of the authoritarian regime created a relatively free political atmosphere and thus encouraged social movement groups to engage in movements with a variety of issues. Students first displayed the courage to speak for reunification. By participating in ideological debates regarding democracy for the Korean peninsula throughout the 1980s, they had realized that genuine democracy was impossible without overcoming national division and reunifying North and South Korea. As the territorial and ideological division had provided an easy justification for authoritarian rule, it was imperative to bring peace to the peninsula in order to further democratize Korean society. 38

Yet, those promoting reunification and entering into contact with the North soon became targets of repression under the National Security Act. Although its relevance was publicly called into question following the transition, the security legislation was fully revitalized after Reverend Moon Ik-hwan traveled to the North in the spring of 1989. 39 A longtime pro-democracy and human rights activist, Moon crossed the 38th parallel in April of that year in order to meet with then North Korean leader Kim Il-sung (Kim Ils ŏ ng) and discuss the issue of reunification. As their visit had not been authorized by the South Korean government, Moon and his companions were arrested upon their return for violating the National Security Act whose article 6 forbids to “infiltrate from” (chamip) or “escape to” (t’alch’ul) “territory under the control of an antistate organization” (pan’gukka tanch’eŭ i chibaeha e inn ŭ n chiy ŏ k)—that is to say, North Korea. Immediately after Moon Ik-hwan’s unapproved trip, the Roh Tae-woo administration set up the Public Security Investigations Headquarters (kongan susa ponbu) to coordinate the work of police and intelligence agencies and crackdown more effectively on the antistate activities criminalized under the security legislation. 40 By the end of 1989, all the individuals who had undertaken to visit North Korea without prior authorization found themselves convicted and sentenced to lengthy prison terms. 41 This included not only Reverend Moon Ik-kwan but also Lim Soo-kyung. A fourth-year undergraduate French major at the Hanguk Foreign Language University in Seoul, Lim had traveled clandestinely to the North in order to attend the Thirteen World Festival of Youth and Students held in Pyongyang in the summer of 1989. 42 Post-Authoritarian Contentious Politics 59

Both Moon and Lim were among the pro-reunification activists defended by Minbyun lawyers, whose clients in those years also included many of those targeted under the National Security Act. Out of the 2,274 individuals prosecuted under the security legislation between June 1988 and May 1995, no less than 1,623 were represented by Minbyun lawyers.43 During this period, nearly half of the cases handled by the association concerned offenses against the National Security Act, amounting to 43 percent of its caseload. 44 In turn, “Minbyun’s defense of political dissidents, whether students, workers or intellectuals . . . more or less situated it as being part of the ideological left,” leading successive South Korean governments to construe “human rights” as advocated by the association as “being too related to socialism.” 45 In other words,

Representing political prisoners or laborers, these lawyers were stigmatized as troublemakers or even pro-communist by the state. Furthermore, despite the transition to democracy in the late 1980s, the “misfit” label lingered well into the early 1990s.46

Human rights lawyers’ strategic mobilization to represent the forces politically disenfranchised from the post-authoritarian order resulted in constitutional justice’s investment as a “center stage” in the dispute over the boundaries of enmity opposing the state and people’s movement groups after the change of regime. 47 However, the South Korean court’s empowerment from below did not imply that the institution necessarily satisfied the demands for legal reform formulated by litigants, as detailed for cases related to the National Security Act in Chapter Four . Similarly, the following section examines the ambiguity with which the institution has responded to civil society’s pressure for putting the past on trial, an issue that Minbyun was instrumental in deferring before the Constitutional Court of Korea.

The Struggle for Transitional Justice

In 1987, democratic change was triggered by mass mobilization against the Chun Doo-hwan regime, but the transition process itself was handled by the incumbent elite through negotiations with the opposition party. With the victory of Roh Tae-woo in the first direct presidential elections, it should come as no surprise that the challenge of confronting 60 Regime Transition and the Judicial Politics of Enmity past abuses for which he and Chun could be held responsible was not met. At the beginning of Roh’s term, Chun Doo-hwan still retained an influential position in South Korean politics as a member of the Democratic Justice Party and as chairman of the Advisory Council of Elder Statesmen (kukka wŏ llo chamunhoe ŭ i). Initially designed in the 1980 constitution and preserved in the 1987 text, this office was to be occupied by the former president, thereby ensuring that Chun would continue to be involved in state affairs. 48 The parliamentary elections of April 1988 upset this equilibrium based on a strong continuity with the previous regime. While remaining the largest party in the National Assembly with just 34 percent of the vote (which translated into 125 seats out of 299), the Democratic Justice Party lost its absolute majority. Its representatives could even be outnumbered by the combined forces of the two main opposition parties, the Party for Peace and Democracy of Kim Dae-jung (with 70 seats for 19.3 percent of the vote) and the Reunification Democratic Party of Kim Young-sam (with only 59 seats for 23.8 percent of the vote). In the wake of the elections, the opposition prompted the holding of fact- finding hearings on the uprising that took place in the city of Kwangju in May 1980 to protest against the nationwide imposition of martial law by the newly installed military junta. 49 Chun Doo-hwan was forced to apologize to the nation and to resign from both the Advisory Council of Elder Statesmen and the ruling Democratic Justice Party, before retreating to a Buddhist temple for two years. In March 1990, a special law was enacted to compensate those involved in the Kwangju events, but this measure did not alleviate the demand for a full investigation of the incident and the punishment of the officials liable for the massacre. Civil society’s mobilization to put the past on trial escalated after Kim Young-sam won the December 1992 elections, thus becoming South Korea’s first civilian president in three decades. His victory marked a major, yet incomplete rupture with the previous administration. Indeed, in order to ensure his electoral success against Kim Dae- jung, Kim Young-sam—whose entire political career had been in the opposition—allied with Roh Tae-woo’s ruling party to form the main conservative Democratic Liberal Party. 50 As a result of this merger, Kim resisted the idea to formally bring Chun Doo-hwan and Roh Tae- woo to justice, instead arguing that “the truth should be reserved for historical judgment in the future.” 51 In 1993, however, a complaint for treason was submitted to the Seoul District Prosecutors’ Office (s ŏ ul chibang k ŏ mch’alch’ ŏ ng) against Chun, Roh, and other leading generals, by petitioners who claimed Post-Authoritarian Contentious Politics 61 to be victims of the December 12, 1979, coup d’é tat through which the military junta had seized power. In line with the new administration’s official position, the Prosecutors’ Office decided not to indict the leaders of the military coup in 1994. “Although it recognized that the December coup of 1979 involved crimes of mutiny, insurrection, and murder, and [that] the suppression of the May 18 Uprising of 1980 constituted treason and murder,” the prosecution reasoned that “a victorious coup should not be punished after a substantial lapse of time” since, “legally speaking, the democratic-civilian government was a legal successor to the previous Chun and Roh governments.” 52 The decision not to indict was appealed by the petitioners to the Supreme Prosecutors’ Office (taek ŏ mch’alch’ ŏ ng), where their request was dismissed again. This perceived denial of justice prompted Minbyun lawyers to intervene by filing a complaint before the Constitutional Court of Korea on the ground that the non-prosecution of the coup’s leaders violated victims’ basic rights. 53 Procedurally, the initiative did not stand out since an overwhelming majority of the constitutional court’s caseload consists of complaints against abuses of state power, and especially against prosecutors’ decisions to indict or not. Substantially, the judgment delivered by the court on January 20, 1995, was the first of a series of three major cases responding to the intertwined issues of whether the perpetrators of the December 1979 military coup and of the violent suppression of the May 1980 Kwangju uprising could be punished.54 In this first ruling, the Constitutional Court of Korea concluded that the prosecutors’ decision not to prosecute Chun Doo-hwan, Roh Tae- woo, and other members of the military junta for their coup d’ é tat was not arbitrary. This position was reached after the court weighed “two countervailing sets of facts” for which there could be no easy balancing in its eyes.

On the one hand, the Court recognized the importance of the reasons for prosecution, i.e., rectifying the past, deterring similar acts in the future, restoring justice, and fulfilling the people’s prevailing sense of justice. On the other hand, the Court did not treat lightly the reasons for non-institution of the prosecution such as avoiding prolonged social confrontation and polarization, saving national resources, and preserving national pride. 55

Despite its attention to the social polarization (sahoejŏ k taerip) and conflict (kaltŭ ng) surrounding the issue at stake, a majority of the court 62 Regime Transition and the Judicial Politics of Enmity deemed the prosecution’s choice justifiable. Consensus rarely prevails within the institution as exemplified in this case by the separate dissenting opinions of Justices Cho Seung-hyung and Koh Joong-suk (Ko Chungs ŏ k). Both found that the decision not to indict should be cancelled, respectively considering that it deviated from the reasonable scope of the prosecution’s discretion and that the reason not to prosecute was not based on objective grounds, thereby infringing upon petitioners’ right to due process and equal treatment before the law. Rather than bringing an end to the controversy over how to confront the past, the court’s judgment fostered the anger and determination of civic groups committed to make change happen through legal channels. As a second petition to prosecute the officials liable for the suppression of the Kwangju uprising was also rejected by the Seoul District Prosecutors’ Office, Minbyun lawyers appealed anew to constitutional justice while “concurrently promoting the passage of the Special Act on the May Democratization Movement” to suspend the statute of limitations for the crimes committed in the course of the Kwangju uprising’s suppression.56 On December 15, 1995, the Constitutional Court of Korea examined the complaint filed against the decision of the Seoul District Prosecutors’ Office not to prosecute the individuals responsible for the repression of Kwangju. The ruling released by the court was unusual insofar as a majority of justices decided to terminate the proceedings after petitioners chose to withdraw their constitutional complaint. The complainants’ retraction was motivated by President Kim Young- sam’s announcement that a special bill would be proposed before the legislature in order to allow the punishment of Kwangju’s perpetrators. Whether the statute of limitations for acts carried out more than 15 years earlier had already expired or not represented a crucial issue in the debates of the time. While Kim Young-sam proved at first reluctant to let Chun Doo-hwan and Roh Tae-woo be brought to trial, his attitude shifted following the public uproar caused by the revelation of the colossal amount of money amassed by the two former presidents through their respective slush funds (nearly $900 million for Chun and $650 million for Roh). 57 As the proposed special law was pending in the National Assembly, the constitutional complaint against prosecutors’ non-indictment was withdrawn by Minbyun to prevent a possible interference between the court’s upcoming decision and the announced piece of legislation. A majority of justices ruled that the proceedings should be terminated Post-Authoritarian Contentious Politics 63 whereas four others dissented, arguing that judicial review was not about the “subjective protection of complainants’ rights” but the objective defense and protection of the constitutional order. Furthermore, the dissenting opinion of Kim Chin-woo (Kim Chinu), Lee Jae-hwa (Yi Chaewa), and Cho Seung-hyung suggested that a prevailing number of justices had agreed to a double-edged solution before proceedings were terminated. According to it,

Even if a successful coup makes it practically impossible to punish the perpetrators during their incumbency, they can always be punished whenever the legitimate state institutions recover their proper function and thereby regain the de facto power to punish them. However, if treasonous activities were the means to create a democratic civil state and to restore the people’ s sovereignty previously suppressed and excluded under a feudal autocratic regime or a dictatorship, they can be justified before or after the fact by the will of all people.58

In essence, the court recognized the possibility to either punish the perpetrators of the coup or have their “treasonous activities” justified “by the will of the people.” The first path was eventually taken with the Special Act on the May 18th Democratization Movement (5.18 t‘ ŭ kpy ŏ lpŏ p) enacted on December 21, 1995. This law provided that the period for prosecution of the crimes committed between the December 12, 1979, military coup and May 1980 Kwangju massacre was to start in February 1993, that is, when Kim Young-sam replaced Roh Tae-woo as president. The constitutionality of the special legislation was immediately challenged by the accused on the basis that the suspension of the limitation period from 1979 to 1993 constituted a form of ex post facto legislation. Enacting ex post facto, or retroactive, criminal legislation is indeed in contradiction with a fundamental principle of the rule of law, namely the prohibition that there be a crime without a law. This principle not only implies that “no person shall be arrested, detained searched, seized or interrogated except as provided by Act,” but it also ensures that “no citizen shall be prosecuted for an act which does not constitute a crime under the Act in force at the time it was committed.”59 The passage of retroactive legislation to prosecute the crimes of the former regime is always a problematic move for new democracies since it undermines the very foundations upon which they claim to be based, such as legal 64 Regime Transition and the Judicial Politics of Enmity security. In the case at hand, the constitutional court was split on the issue of whether ex post facto legislation could be validated. On the one hand, all justices agreed that the Special Act on May 18 would be constitutional if the statute of limitations had not expired at the time of enactment. On the other hand,

Four justices, Kim Chin-woo, Lee Jae-hwa, Cho Seung-hyung, and Chung Kyung-sik [Ch ŏ ng Ky ŏ ngsik], stated that they would still uphold [the law] even if the period had expired at the time of enactment. Five other justices, Kim Yong-joon, Kim Moon-hee [Kim Munh ŭ i], Hwang Do-yun [Hwang Toy ŏ n], Koh Joong-suk, and Shin Chang-on [Sin Ch’ang ŏ n], stated that they would find it unconstitutional to a limited extent in that case. 60

The issue of whether the statute of limitations had already expired at the time of the law’s enactment was not decided by the constitutional court but instead left to be settled by ordinary tribunals. The constitutional ruling nonetheless signaled that a supermajority of six justices (the necessary quorum for a decision of unconstitutionality) would not be gathered against the validity of the act if ordinary courts were to find it retroactive. Four justices out of nine were ready to defend that “although genuine retroactive legislation is prohibited in principle by the rule of law, it can be allowed exceptionally” when there is “a public interest overwhelmingly more important” than protecting criminals’ expectation of legal certainty. 61 In the wake of the judgment, 16 persons were arrested and prosecuted, including Chun Doo-hwan and Roh Tae-woo. The two former presidents were respectively sentenced to death and to twenty-two-and-a-half years of imprisonment in August 1996, after a four-month televised trial held at the Seoul District Court (s ŏ ul chibang p ŏ bwŏ n). Their sentences were later com- muted to life imprisonment and 17 years of imprisonment by an appel- late court, and confirmed by the Supreme Court of Korea in April 1997. On December 22 of that same year, however, Chun and Roh were both released after Kim Young-sam granted them a presidential pardon before retreating from office, a gesture that was agreed to by Kim Dae-jung upon his election. 62 The three above-mentioned decisions highlight major features of the Constitutional Court of Korea’s ambivalent and often divided approach to the issue of transitional justice. In each case, the institution engaged Post-Authoritarian Contentious Politics 65 in a balancing of interests in which competing reasons were given serious consideration. While the court’s overall position evolved throughout the three cases, no precedent was overturned. The court did not shift from opposing to allowing the punishment of Chun Doo-hwan, Roh Tae-woo, and their accomplices. Its first ruling found compelling reasons both in favor of and against their prosecution, thereby not judging arbitrary prosecutors’ decision not to indict the accused. By the time of its third decision a year later, the court was presented with a piece of legislation meant to lift all legal obstacles (namely, the statute of limitations) preventing Chun, Roh, and other military officials, from being tried. In the meantime, the climate surrounding the issue of punishment had clearly changed under the pressure of civil society’s heightened mobilization. The Special Act on the May 18th Democratization Movement was proposed by Kim Young-sam in response to the growing popular outrage over abuses committed by the two former presidents. The fact that the law’s validity was challenged before the constitutional court by the very perpetrators of the coup and the Kwangju massacre made it very risky to hold the legislation unconstitutional. Only a minority of four justices, however, went as far as to accept distorting the rule of law to satisfy the demand for substantive justice through retroactive criminal punishment. This minority would have been sufficient to confirm the constitutionality of the special legislation had ordinary tribunals found the statute of limitations already expired at the time of the enactment—a matter of statutory interpretation that constitutional justices deferred to the judiciary. The court’s prevailing minority position and general cleavage on the issue of retroactive justice can be contrasted with the firmly legalistic stance of institutions such as the Constitutional Court of Hungary after the transition from communism or the German tribunals in the wake of reunification. In 1990, the first elected Hungarian parliament passed a law providing that the statute of limitations for criminal offenses such as treason, voluntary manslaughter, and infliction of bodily harm resulting in death committed between 1944 and 1990 would start again on May 2, 1990, the date when the new legislature took office. The law was immediately referred by President Á rp ád Gö ncz, a former regime opponent, to the constitutional court. A product of the 1989 roundtable talks between the communist elite and the opposition, this institution was composed of justices representing almost all the different political 66 Regime Transition and the Judicial Politics of Enmity factions present in the parliament. Yet, the court’s concordance and unity on the matter were entire.

The Constitutional Court in its unanimous decision, 11/1992 (III.5) AB h., struck down the parliament’s first attempt at retroactive justice as unconstitutional for most of the reasons that G ö ncz’s petition identified. The court said that the proposed law violated legal security, a principle that should be guaranteed as fundamental in a constitutional rule-of-law state . . . The basic principles of criminal law—that there shall be no punishment without a crime and no crime without a law—were clearly violated by retroactively changing the statute of limitations; the only sorts of changes in the law that may apply retroactively, the court said, are those changes that work to the benefit of defendants. Citing the constitutional provisions that Hungary is a constitutional rule-of-law state and that there can be no punishment without a valid law in effect at the time, the court declared the law to be unconstitutional and sent it back to the president. 63

In the process of reunifying the Federal and Democratic Republics of Germany, the prohibition against retroactive legislation also took on an important, albeit slightly different, dimension. The emphasis did not primarily lie on the fact that crimes for which the statute of limitations had expired could not be prosecuted but on the requirement that only those acts that constituted crimes under East German law could be punished.

The architects of German unity were so attentive to this prohibition on ex post facto lawmaking that they deliberately incorporated the principle into the Unification Treaty of 1990. The accord expressly stipulated that crimes committed before the date of national unification could be adjudicated only according to the East German penal code. 64

While this precaution was by no means a guarantee, it was made effective by German judges’ “adherence to the stricture of the Basic Law” and their consequent exclusive reliance on codified East German law to settle the cases before them. 65 In doing so, the courts contributed to construct “the forty-year history of the GDR [German Democratic Republic] in more exacting terms than those allowed by the ambiguous concept of the Unrechstaat,” that is, East Germany envisioned as Post-Authoritarian Contentious Politics 67 a lawless state.66 This transformative dimension of judicial intervention is also verified in the case of the Constitutional Court of Korea’s approach to the authoritarian era, recognized as constituting a coher- ent institutional and legal order of its own. As stated by the court in its above-mentioned review of prosecutors’ decision not to indict the leaders of the December 1979 military coup,

Whether to a small or large extent, whether to our liking or not, the order established during that time became an integral part of our history and formed the foundation of the present political, economical, and social order.67

The fact that four South Korean justices were inclined to find the Special Act on the May 18th Democratization Movement constitutional even if it amounted to retroactive legislation did not imply that these same judges were ready to extend this exception to other cases. As a matter of fact, further efforts to enact broad ex post facto provisions in order to prosecute past crimes were undertaken in 2002, with the introduction of a bill to revise the Criminal Procedure Code (hy ŏ ngsa sosongp ŏ p), and in 2005, through a special bill to suspend the statute of limitations for state crimes against human rights. Both failed to pass in the National Assembly as legislators feared that the two laws would not be upheld if deferred before the constitutional court. 68 Constitutional justice has remained invested as a site to dispute the construction of enmity in relation to South Korea’s authoritarian past until today. In March 2013, the court ruled unconstitutional three presidential emergency decrees (taet’ongny ŏ ng kin’g ŭ p choch’i) of the Park Chung-hee era (Emergency Decrees No.1, 2, and 9) prohibiting “any act of denying, objecting, distorting, or criticizing” the Yusin constitution of 1972, a decision that intervened a month after the accession of Park’s daughter to the presidency. As pointed out by Marie Seong-Hak Kim, constitutional jurisprudence invalidated the emergency decrees not only in connection with positive law but also in invoking the “constitutional order of liberal democracy,” revealing that “judicial emphasis on fundamental rights tends to place the subjective criterion of justice over legal certainty.” 69 In the judgment’s words,

[T]the Constitutional Court interprets the Constitution by explor- ing and confirming the special values implied by the Constitution under the historical background that the Constitution has been revised by the People’s Will to extend and improve the fundamental 68 Regime Transition and the Judicial Politics of Enmity

rights of the People, according to the regret that a part of provisions of the Yushin [Yusin] Constitution and Decrees infringed the fundamental rights and injured the basic principles of liberal democracy. 70

The “constitutional order” or “basic principles” of liberal democracy that the court grounded its ruling on literally refers to “the basic order of free democracy” (chayu minjuj ŏ k kibon chilsŏ ), an expression modeled on the equivalent found in the 1949 Basic Law for the Federal Republic of Germany (freiheitlich demokratische Grundordnung). This notion, however, is polysemic and its use does not appear intrinsically tied to constitutional courts’ commitment to protecting fundamental rights as argued by Melissa Schwartzberg for the German case. 71 In South Korea, it is in the name of defending the basic order of free democracy that the constitutional court pronounced the disbandment of the small leftist Unified Progressive Party on December 19, 2014, a decision based on the court’s unprecedented use of its power to dissolve political parties conferred by the constitution’s article 8. 72 Before its disbandment, the three-year-old organization counted no more than five lawmakers in the National Assembly—nonetheless making it the third parliamentary force—and an estimated membership of 100,000.73 The request to dissolve the Unified Progressive Party was filed by the Ministry of Justice (pŏmmubu) on November 5, 2013, on the ground that its activities supported the establishment of a North-Korean-style socialist system in the South. The party was represented by Minbyun lawyers throughout the proceedings before the constitutional court and the announcement of its dissolution, while reportedly supported by a majority of the population, ignited controversy both inside and outside South Korea. 74 Apart from the presidential emergency decrees’ and party dissolution’s cases, constructs such as the “fundamental order” or “basic principles” of liberal democracy have been mobilized by the Constitutional Court of Korea on several occasions to unpack the values and arrangements worthy of being upheld in the post-authoritarian period. The way in which the institution has assumed its responsibility to define and defend the constitutional order has led its jurisprudence to consolidate the contemporary relevance and resilience of various mechanisms of exclusion challenged after the transition, including the contentious National Security Act as explored in the following chapter. CHAPTER FOUR Reviewing How the Enemy is Defined : From the Security of the State to the “Basic Order of Free Democracy”

The description of positive law as a “hierarchy of norms” in which a “basic” one (grundnorm, or constitution in common parlance) enjoys preeminence has imposed itself in legal theory since Hans Kelsen proposed it in the 1930s. 1 In South Korea, the argument that “the higher normative law that supersedes all other laws” is not the constitution but the National Security Act has been formulated by scholars such as Choi Jang-Jip, whereas others have suggested that constitutional review has had the effect of “domesticating” the security legislation, depicted as “the single most egregious law associated with military rule.” 2 Focusing on rulings delivered by the Constitutional Court of Korea in relation to the controversial National Security Act, this chapter precisely interrogates how the notion of enmity has been reshaped by the institution in the aftermath of the transition. The analysis thus revisits both the traditional understanding made of these decisions as landmarks of the court’s commitment to protecting fundamental rights and the reverse conception of its role as impotent. While the court has sanctioned abusive interpretations and excessive clauses of the National Security Act, its jurisprudence has also pro- foundly enhanced the post-authoritarian relevance and legitimacy of the law by constructing it as a means to confront not only the activities that threaten the state, but also those endangering the basic order of free democracy. In this respect, the debate over the abolition of the National Security Act, which erupted in 2004, provided the court with 70 Regime Transition and the Judicial Politics of Enmity the opportunity to reaffirm its support for the legislation and the political non-inclusiveness that it enforces.

The National Security Act, Informal Constitution of South Korea?

South Korea’s constitution and National Security Act have largely evolved in parallel since their concurrent coming into being in 1948. Both texts were concomitantly revised on several occasions, such as in 1960, following the uprising that ousted Rhee Syngman from power and brought about the short-lived Second Republic; 1962, after the coup d’é tat of Park Chung-hee leading to the establishment of the Third Republic; 1980, with the founding of the Fifth Republic presided by Chun Doo-hwan; and 1987, coinciding with the country’s transition to democracy. The National Security Act’s category of “antistate organization” represents one of the main legal instruments through which the ascription of enmity has historically operated in South Korea. The expression itself did not appear in the original version of the security legislation, enacted on December 1, 1948, and directed against the “groups which violate the national constitution (kukhŏ n) by claiming the title of government or by having the purpose to disrupt the state (kukka).”3 On June 10, 1960, these same groups were defined as “antistate organizations,” a notion that has remained throughout the subsequent revisions of the National Security Act. 4 In 1980, its scope was explicitly made to encompass both internal and external enmity, as encapsulated in the reference to the “groups and associations from home and abroad” (kungnae oe ŭ i kyŏ lsa tton ŭ n chiptan). 5 As of today, an antistate organization is thus a group or association that operates within or outside South Korea for the purpose of “assuming the title of government” or “disrupting the state.” 6 The antistate organization claiming the title of government designates North Korea, which is denied the status of sovereign state by the security legislation and is therefore never openly mentioned. This erasure is in conformity with the original spirit and letter of article 3 of the constitution, construing the Republic of Korea’s territory as encompassing the whole peninsula rather than its southern half only. In turn, the portion of the country north of the 38th parallel is depicted as “territory under the control of an antistate organization” by article 6 of the National Security Act, which criminalizes escaping to, or infiltrating Reviewing How the Enemy is Defined 71 from, this area. Such textual congruence between the constitution and security legislation comes as no surprise given that both were drafted at the time of the two Koreas’ competing political founding. In 1948, the formation of two separate states on the millennially united peninsula was openly contentious because of each half’s claim to represent, along antagonistic ideological lines, the only and wholly legitimate Korea. Yet, conflictuality was not solely projected between but also within the North and the South as each was born in a context of domestic unrest and violence. In the southern half of the peninsula, socialism was a particularly powerful force after 1945 as a result of the social transformations prompted by the colonial era and wartime mobilization in the service of Japan. On the one hand, as already evoked in Chapter Two, the bulk of Korean resistance against Japanese rule had been fueled since the 1930s by left-wing activists, whose struggle “planted a deep core of Communist influence among the Korean people, particularly the students, youth groups, laborers, and peasants.” 7 On the other hand, these parts of the population’s colonial and wartime experiences also drew them to support socialism. For instance, the mil- lions of peasants who had been pushed away from the countryside in the late 1930s and forced to take part in Japan’s total war effort as workers or soldiers returned home hoping for a redistributive land reform and sweeping decolonization process. The two were intimately connected in their eyes since the Korean landlord class had largely collaborated with the colonial regime to defend its own interests and privileges. 8 Both demands—land reform and decolonization—were supported by the grassroots people’s committees formed under the Committee for the Preparation of Korean Independence (chos ŏ n kŏ n’guk chunbi wiwŏ nhoe) in the immediate aftermath of the country’s liberation on August 15, 1945. As the peninsula was partitioned in September owing to its joint military occupation by Soviet and American forces, the people’s committees and their advocated reforms were only recognized and orchestrated in the North. The latter’s transition to communism forced “all Korean social elements that might either have sought the perpetuation of the old or the obstruction of the new system” to seek refuge in the South, where they numbered 1,800,000 by 1948. 9 There, the people’s committees were ousted by the United States Military Government in Korea (USAMGIK) and none of the desired structural reforms carried out. In the year-long process of eliminating the committees, conservative elements of society could be relied upon alongside the pre-1945 repressive apparatus, whose institutions and Korean personnel largely remained in place in the absence of massive purge. 10 72 Regime Transition and the Judicial Politics of Enmity

By the time of the Republic of Korea’s founding on August 15, 1948, “the leftist groups capable of challenging the regime were driven underground,” but contestation was still strong and even turned into rebellion in regions such as South Ch ŏ lla and Cheju Island. 11 Between September 4, 1948, and April 30, 1949, 89,000 arrests were reportedly conducted by the newly installed government of Rhee Syngman, while the National Security Act was hastily passed and promulgated on December 1, 1948. 12 By the spring of 1950, it is estimated that the law had already been used to imprison some 58,000 individuals. 13 Since its inception, the security legislation has therefore embodied more than the reality of the national division. Its genealogy highlights how the effects of the peninsula’s partition not only run between the two Koreas but also inside each. In the South, the “discourse of anticommunism and national security was projected not only toward the ‘real’ enemy, the north, but also toward anyone who harbored the notion of a radical transformation of society, in other words, toward all progressive elements in South Korea.” 14 The rhetoric of anticommunism that the new South Korean state appropriated at its birth turned into an instrument of full-fledged mobilization after the outbreak of the Korean War on June 25, 1950. 15 It became further institutionalized under the Park Chung- hee regime with the enactment of the Anti-Communist Act on July 3, 1961. The law remained in force until it was abolished and fused with the National Security Act on December 12, 1980, resulting in the insertion of article 7 against praising and encouraging an antistate organization in the security legislation. The radicalization of anticommunism under Park must be seen in light of its efficacy at the service of state-engineered socioeconomic modernization, to which civil society in general, and labor in particular, were harshly subordinated. 16 From the 1960s onward, national security indeed became inseparable from the project of building “a wealthy and (militarily) strong nation as the embodiment of modernity.” 17 On the one hand, the process of mass mobilization required by this transformation called for both men and women to participate in it as “dutiful nationals,” albeit in a gender-based differential way as discussed in relation to various constitutional challenges to the male conscription system in Chapter Seven .18 On the other hand, the entire national security apparatus was reshaped and made to play an integral part in economic development, as illustrated by the functions attributed to the Korean Central Intelligence Agency Reviewing How the Enemy is Defined 73

(chungang ch ŏ ngbobu) upon its creation in 1961. Under the Park Chung-hee regime,

[T]he role of the national security organizations was as absolute in the economic policy area as it was in other policy areas. The authoritarian state security organizations did more than simply play the role of watching and suppressing labor and anti- government activities in the name of economic stability. They were the core decision-makers in major policy decisions. It was the national security agents who controlled the vast set of bureaucratic rules and regulations instituted by the regime; they became an extension of the president, allowing him to rule effectively as the chief commander of state authority. Furthermore, as Korean companies expanded their businesses overseas, the security agencies provided information on overseas investment conditions to individual companies, prepared in advance the terms of invest- ments, and supported these business activities. In this way, they played a broad spectrum of economic roles. 19

Therefore, South Korea’s security instruments have always been irreducible to the threat of the North, producing political and socioeconomic effects partly autonomous from the national division. To be labeled as “antistate,” South Korean groups still need less than material political ties with North Korea. Alleged kinship with its chuch’e (or self-reliance) ideology has been a sufficient ground for authorities to repress a wide range of discursive claims—from being critical of the South Korean government to rejecting capitalism, advocating reunification, or condemning the military presence of the United States in the peninsula—under article 7 of the National Security Act, the first of the law’s provisions that was challenged before the Constitutional Court of Korea.

The Contribution of the Constitutional Court’s Landmark 1990 Ruling to Redefining Enmity

In 1989, the constitutionality of article 7, sections 1 and 5, of the National Security Act was raised before the District Court of Masan (masan chibang pŏ bwŏ n)—a city lying in the southeastern corner of the peninsula—by three individuals prosecuted and tried “for possessing 74 Regime Transition and the Judicial Politics of Enmity and distributing books and other expressive materials for the purpose of benefiting an antistate organization.” 20 The defendants’ presump- tion of unconstitutionality was based on their claim that the provisions under which they were charged were both ambiguous and overly broad. Their request for review was granted by the president of the tribunal and thereupon referred to the constitutional court, where it was defended by Yi Hong-nok (Yi Hongnok), a famous human rights lawyer from Pusan.21 No additional element of context is provided in the constitutional decision rendered on April 2, 1990, as it is characteristic of the court’s rulings to expose only briefly the facts that form the background of a given case. 22 Under then National Security Act’s article 7, section 1, “any person who praises, encourages, sympathizes with, or benefits through other means, an antistate organization, its members, or any person under its direction” could be punished by up to seven years of imprisonment, while section 5 criminalized “the production, importation, duplica- tion, possession, transportation, distribution, selling or acquiring of a document, a drawing or any other expressive article” for the purpose of performing one of the above-mentioned acts. 23 Sanctioning any use of freedom of expression deemed favorable to North Korea (i.e., “benefiting an antistate organization”), article 7 concretely served to imprison students or intellectuals acquainted with Marxist literature, people writing about the North Korean system even from a scientific or journalistic viewpoint, as well as anyone articulating ideas considered to belong to the ideological repertoire of the Democratic People’s Republic of Korea. At the time when the constitutional court’s ruling was delivered, the charge of benefiting the enemy through expressive materials continued to be applied by law enforcement institutions and ordinary courts against artists, publishers, and academics whose activities were however far from endangering national security. 24 The Constitutional Court of Korea was unanimously firm in denouncing such abuse, holding that article 7, if “interpreted literally,” would “merely intimidate and suppress freedom of expression without upholding any public interest in national security” due to the excessive vagueness and broadness of its contents, thereby “infringing freedom of speech, freedom of press, and freedom of science and arts, and ultimately violating the principle of rule of law and the principle of statutory punishment.” 25 Despite the acuteness of these criticisms, the court did not invalidate the provisions under review. Instead, it deemed them constitutional to the extent that they were construed narrowly, as Reviewing How the Enemy is Defined 75 covering and sanctioning only those expressive activities that deliberately pose a “clear threat (my ŏ ngbaekhan wihŏ m) to the integrity and the security of the nation and the basic order of free democracy.” 26 On the one hand, this formulation forcefully demonstrated the court’s intention to restrict the activities susceptible to be criminalized under article 7 by introducing a “clear threat standard” reminiscent of the “clear and present danger test” found in US jurisprudence. 27 On the other hand, the newly inserted reference to the basic order of free democracy can be said to have had the effect of altering the scope of the National Security Act and the concept of antistate organization, converting them into instruments to protect not only national security, but also the constitutional order. In doing so, it may be argued that the Constitutional Court of Korea did more than outline an understanding of the law that made it compatible with the constitution. Its ruling not merely prescribed a relation of compatibility but also of solidarity between the National Security Act and the post-1987 constitutional order that the court has the mission to defend. The notion of “clear threat to the integrity and security of the nation and the basic order of free democracy” was further specified in the judgment, on the basis of a distinction between the externality of activities endangering the former and the internality of those menacing the latter.

The activities jeopardizing the integrity and the security of the nation denote those communist activities, coming from outside, threatening the independence and infringing on the sovereignty of the Republic of Korea and its territories, thereby destroying constitutional institutions and rendering the Constitution and the laws inoperative. The activities impairing the basic order of free democracy denote those activities undermining the rule of law pursuant to the principles of equality and liberty and that of people’s self-government by a majority will in exclusion of rule of violence or arbitrary rule: in other words, one-person or one- party dictatorship by an anti-state organization. Specifically, they are the efforts to subvert and confuse our internal orders [naebu ch’ejae in the original text, which is also translatable as “internal system” or “social structures”] such as respect for basic rights, separation of powers, representative democracy, multi-party system, elections, the economic order based on private property and market economy, and independence of the judiciary. 28 76 Regime Transition and the Judicial Politics of Enmity

The definition of the “activities impairing the basic order of free democracy” owes much to the one articulated by the Federal Constitutional Court of Germany in its 1952 decision to dissolve the Socialist Reich Party. The basic order of free democracy was then described “as an order which excludes any form of tyranny or arbitrariness and represents a governmental system under a rule of law, based upon self- determination of the people as expressed by the will of the existing majority and upon freedom and equality” and whose “fundamental principles . . . include at least: respect for the human rights given concrete form in the Basic Law, in particular for the right of a person to life and free development; popular sovereignty; separation of powers; responsibility of government; lawfulness of administration; independence of the judiciary; the multi-party principle; and equality of opportunities for all political parties.” 29 Incorporating the safeguard of those elements into the scope of the National Security Act, the Constitutional Court of Korea’s ruling paradoxically appears to have both restricted and enlarged the notion of enmity targeted under the law. Indeed, if fewer activities are defined as threatening the state in accordance with the clear danger test, a new form of peril is introduced, comprising the activities that jeopardize the institutions upon which constitutional democracy is premised—including the “economic order based on private property and market economy” absent from the German definition. The 1990 judgment rendered by the court on the limited constitutionality of article 7 was not unanimous. One member of the bench, Justice Byun Jeong-soo, dissented arguing that “the provisions of the law [are] so clearly unconstitutional [that they] cannot be cured merely by interpreting it narrowly and should simply be stricken down.” 30 Byun was the single judge recommended by Kim Dae-jung’s opposition Peace and Democracy Party among the three nominees chosen by the parliament in 1988. 31 Even though his opinion diverged from that of the majority on the solution that the court ought to adopt, their respective reasoning shared many similarities, starting with a common understanding of the threat posed by the continued “hostility of North Korea” and the “incomparability” of the division. 32 Moreover, the court’s nine justices concurred to recognize the excessive character of the National Security Act’s article 7 while upholding the necessity to protect South Korea’s safety. Justice Byun himself cited in his opinion the possibility to restrict basic rights when necessary for national security, pursuant to article 37, section 2, of the constitution.33 Reviewing How the Enemy is Defined 77

All judges also agreed that the challenged provisions would not serve any public interest in defending national security if interpreted literally, but would instead hurt alternative fundamental goods, such as protecting freedom of expression and advancing the rule of law or the pursuit of reunification. In the end, what opposed the majority ruling and the dissenting opinion was not a conflict of interpretation over article 7 of the security legislation but two different visions of the role bestowed upon the court and its jurisprudence. Indeed, Justice Byun stressed in his conclusion that it was the institution’s purpose to denounce as such provisions that it found unconstitutional, arguing that the “objective” interpretation of article 7 put forth by the court would not prevent law enforcement agencies from persevering in their “subjective” and abusive understanding of the National Security Act. 34 In contrast, the majority asserted its duty to interpret polysemic statutes such as article 7 as being consistent with the constitution to the maximum extent possible. As predicted by Byun, neither the will of the court, nor the ensuing amendment of the National Security Act, has been sufficient to make effective a restrictive interpretation of the law. The revision of the security legislation that was unilaterally passed by the ruling party on May 10, 1991, nonetheless brought about a variety of changes. First of all, the reference to the basic order of free democracy introduced by the court was adopted and generalized throughout the law. Second, a new provision was incorporated in article 1, proclaiming that “the law shall not be loosely interpreted or otherwise misapplied to unreasonably restrict the basic human rights of citizens.” Third, the designation of all communist groups (including foreign parties and governments) as antistate organizations was withdrawn, alongside the provisions prohibiting to praise or contact them. Fourth, an intention- ality requirement was inserted in several parts of the text, including article 7, to ensure that only an antistate act committed “with the knowledge that it will endanger the nation’s security and existence or the basic order of free democracy” could be punished. Finally, the vague crime of “benefiting an antistate organization through other means” was deleted. 35 Yet, the notion of clear threat advocated by the constitutional court was not retained. As a standard of interpretation and safeguard against abuses of the security legislation, its adoption was not only resisted by political elites but also by the institutions in charge of law enforcement, including ordinary courts, as explored later in this chapter. 78 Regime Transition and the Judicial Politics of Enmity

Further Consolidating the Law while Limiting its Possible Abuses

Since 1989, the National Security Act has been repeatedly challenged before the Constitutional Court of Korea. Out of the over 30 cases that the institution received, only two resulted in unconstitutionality verdicts—in 1992, against article 19, and in 2002, against article 13—while the rest of the requests led to a decision of constitutionality and limited constitutionality, or were alternatively dismissed and rejected (see table 4.1 ). This overall trend suggests how constitutional justice has been an important, yet limited, arena of contention against the security legislation. On the one hand, constitutional jurisprudence demonstrates that the court has been able to engage in more than prudential criticism, not limiting itself to rulings upholding the validity of the security legislation. The court’s attitude is thus not one of intrinsic deference or subservience when it comes to national security matters. On the other hand, the two rulings of unconstitutionality rendered in relation to the National Security Act’s articles 13 and 19 can be said to have paradoxically contributed to further consolidating the law as a whole. This finding illustrates the multilayered effects produced by constitutional intervention, even when it overturns existing policies. In other words, the legal outcome of a case only tells a limited part of a broader story that an interpretive approach to judicial textuality makes possible to restore. In 1992, South Korea’s constitutional court unanimously found article 19 of the National Security Act unconstitutional, albeit only for offenses falling under articles 7 and 10 of the law.36 The point of article 19 is to extend the period of custody when antistate crimes are inves- tigated. The regular length of detention stipulated by the Criminal Procedure Code is thirty days, which means that the police and prosecution can hold a suspect for a month from the time when an arrest warrant is issued until the moment when the concerned individual is indicted or has to be released. Within this period, the first ten days are dedicated to investigation by the police, followed by ten days for the prosecution, with the possibility to prolong custody by another ten days with a judge’s permission. Article 19 of the National Security Act increases this period by another twenty days for all the antistate activities covered by the law (ten supplementary days for the police and ten for the prosecution), bringing the total length of custody authorized Table 4.1 Constitutional challenges to the National Security Act between 1989 and 2009

Decision Number Decision Date Provisions of NSA under Outcome of the Decision Review

89Hun-Ka8 January 28, 1992 Article 7 provisions limited 1 and 5 constitutionality 89Hun-Ka113 April 2, 1990 Idem limited constitutionality 90Hun-Ma82 April 14, 1992 Article 19 unconstitutionality 90Hun-Ka11 June 25, 1990 Article 7 provision 5 limited constitutionality 90Hun-Ba23 April 14, 1992 Article 9 provision 2 constitutionality 92Hun-Ba6 January 16, 1997 Article 4 provision 1; limited Article 6 provision 1; constitutionality, Article 7 provisions 1, 3, 5; constitutionality Article 8 provision 1 92Hun-Ba26 January 16, 1997 Idem limited constitutionality, constitutionality 93Hun-Ba34 January 16, 1997 Idem limited constitutionality, constitutionality 93Hun-Ba35 January 16, 1997 Idem limited constitutionality, constitutionality 93Hun-Ba36 January 16, 1997 Idem limited constitutionality, constitutionality 95Hun-Ka2 October 4, 1996 Article 7 provisions 1, 3, 5 constitutionality 96Hun-Ka8 June 26, 1997 Article 19 constitutionality 96Hun-Ka9 June 26, 1997 Idem constitutionality 96Hun-Ka10 June 26, 1997 Idem constitutionality 96Hun-Ma48 August 21, 1997 Idem rejection 96Hun-Ba35 July 16, 1998 Article 10 constitutionality 97Hun-Ba85 August 27, 1998 Article 6 provision 2 limited constitutionality 98Hun-Ba29 April 29, 1999 Non specified, totality of dismissal the text 99Hun-Ba12 April 29, 1999 Idem dismissal 99Hun-Ba27 April 25, 2002 Article 6 provisions 1, 2; limited Article 7 provisions 1, 3, 5; constitutionality, Article 8 provision 1 dismissal Continued 80 Regime Transition and the Judicial Politics of Enmity

Table 4.1 Continued

Decision Number Decision Date Provisions of NSA under Outcome of the Decision Review

99Hun-Ba51 April 25, 2002 Idem limited constitutionality, dismissal 2000Hun-Ba33 May 16, 2000 Article 13 rejection 2000Hun-Ba45 June 2, 2000 Non specified, totality of dismissal the text 2000Hun-Ba62 August 23, 2000 Article 4 provision 1 dismissal section 2 2000Hun-Ba66 May 15, 2003 Article 8 provisions 1 and 3 constitutionality 2002Hun-Ka5 November 28, 2002 Article 13 unconstitutionality 2003Hun-Ba85 August 26, 2004 Article 7 provisions 1 and 5 constitutionality 2003Hun-Ba102 August 26, 2004 Idem constitutionality 2004Hun-Ma839 November 16, 2004 Declaration to abolish the dismissal NSA 2004Hun-Ba28 July 31, 2008 Article 3 provision 1 dismissal section 2 2005Hun-Ma109 February 15, 2005 Declaration to abolish the dismissal NSA 2009Hun-Ma121 March 31, 2009 Non specified, totality of dismissal the text

Source : Author. under the law to fifty days. 37 This extension was considered excessive by the constitutional court for those offenses that it deemed “not particularly difficult to investigate,” such as praising, encouraging, propagandizing, or sympathizing with an antistate organization (article 7) and failing to report antistate crimes (article 10).38 In ruling so, the court confirmed the legitimacy of derogating from normal proceedings for all other offenses covered by the security legislation, a position that was explicitly reaffirmed in a 1997 ruling. 39 The second unconstitutionality decision invalidating a provision of the National Security Act was rendered in 2002, against article 13 on the special aggravation of punishment in case of recidivism. 40 Article 13 upgrades the maximum penalty to capital punishment for any individual who, having already been imprisoned for violating the law or other serious criminal statutes, commits a new offense against national security within five years. 41 In 2002, the court deemed the application Reviewing How the Enemy is Defined 81 of article 13 excessive when the crimes involved were the expressive activities covered by article 7, and article 7 only (the failure to report crimes under article 10 was already excluded from the scope of this provision). The aggravation of punishment scheme was therefore implicitly validated for all other offenses sanctioned under the security legislation. Together with its 1992 verdict on the authorized length of custody and 1990 ruling prescribing a restricted interpretation of the crime of praising and encouraging an antistate organization, the court expressed in this new decision enduring concerns about the scope of article 7 and the abuse of state power resulting from its assimilation to a serious antistate crime. By adopting a form of narrow control focused on article 7, however, the three judgments also had the effect of validating the rest of the security legislation. This pattern anticipates the one described in Chapter Six about criminal rights in general, with the court’s strict review of the conditions under which they can be suspended implying a legitimation of the very possibility of their suspension. Such dynamics are not specific to the jurisprudence of the Constitutional Court of Korea. In its famous series of cases decided against the policies of the George W. Bush administration and Congress between 2004 and 2008, the U.S. Supreme Court progressively recognized the right of both Americans and foreigners detained at Guant ánamo to have a fair opportunity to challenge the basis of their confinement before a federal district judge, that is, their designation as “enemy combatants.” 42 In ruling so, the court reshaped the meaning of this disputed status while also accepting its validity and confirming the government’s power to detain individuals under it. This legitimation effect illustrates how judgments that overturn aspects of the policies designed by the political branches to confront enemies can also contribute to solidifying the constructs upon which such policies are based, like the category of “enemy combatant” and the related notion of “war on terror” in the context of the United States. The jurisprudence of the Supreme Court of Israel, which sits as High Court of Justice when it performs its functions of constitutional adjudicator, also fits this pattern. While the court is often described as activistic, its decisions can be read as conveying a unilateral vision of Palestinian violence and as sustaining the occupation’s legality, even—or especially—when they set limits on the actions of military authorities in the West Bank and Gaza.43 Similarly, the three rulings on the National Security Act analyzed in this chapter ultimately reinforced the law despite—or rather 82 Regime Transition and the Judicial Politics of Enmity through—the Constitutional Court of Korea’s criticisms. The court most notably contributed to strengthening the raison d’ê tre of article 7 by proclaiming its relevance to preserve not only the security of the state, but also the integrity of the basic order of free democracy. This actualization of the security legislation’s functionality indicates that the law in general, and its article 7 in particular, are misguidedly reduced to being a legacy of the authoritarian period by their detractors. Instead, the National Security Act operates as a mechanism of exclusion enforcing a certain distribution of what counts or not as permissible speech in South Korean democracy. The above-mentioned decisions also share another commonality than their consolidation of the security legislation. The three rulings were largely ignored by the actors involved in the defense of society. At first sight, the 1990 ruling of limited constitutionality seemed con- clusively followed by an important legislative revision that appropriated constitutional language and introduced new safeguards in the National Security Act. Yet, the court’s call for a narrow interpretation of the law was not sufficient to induce compliance from the law enforcement institutions whose discretion the judgment explicitly condemned. In this respect, defiance not only came from special investigators and prosecutors persevering in a broad understanding of the National Security Act, as detailed in Chapter Six, but also from the political branches and the judiciary whose noncompliance is analyzed in the following section.

Resistance to the Court’s Jurisprudence

Hostility to Unconstitutionality Decisions from the Political Branches The only two decisions of unconstitutionality ever delivered by the constitutional court in relation to the National Security Act have been disregarded by the political branches. As a result, article 13 on the aggravation of punishment and article 19 on the extension of custody still apply to the offenses for which the court tried to nullify their effects. 44 The political branches’ resistance to amend the elements of unconstitutionality lodged in the security legislation cannot be easily interpreted as an adverse response to the court’s aggressive- ness. On the contrary, its two decisions were symptomatic of the court’s caution as already examined. Never did the Constitutional Court of Korea consider the possibility to censure articles 13 and 19 in their totality, even less to invalidate the Nationality Security Act Reviewing How the Enemy is Defined 83 as a whole. Both provisions were only found unconstitutional insofar as they applied to the expressive activities covered by article 7 and, in the case of article 19, to the additional act of not reporting antistate crimes under article 10. Rather than judicial activism, these two decisions of unconstitutionality ironically illustrate the court’s restraint, an attitude that equated neither quiescence nor subservience vis-à -vis the political branches. Indeed, elements of caution and deference are often present in rulings of unconstitutionality, even when they go far in contradicting the policy preferences of the executive and/or the legislature. 45 In the two cases at hand, constraints were first self-imposed by the court, as limited aspects of the law—not even a full article—were invalidated. Despite this moderation, the political branches overlooked both the 1992 and 2002 constitutional verdicts, demonstrating a clear unwillingness to let the court further shape the security legislation after its 1990 judgment. Although the National Security Act was revised in 1991 following this ruling, the court has had no means to ensure that the restrictive understanding of article 7 advocated by constitutional jurisprudence would be respected in practice. As a matter of fact, resistance to a narrow interpretation of the security legislation did not only come from the successive administrations in power. Defiance also emanated from the judiciary, that is, from both lower tribunals and the Supreme Court of Korea.

Refusing the “Judicial Duty to Rectify Names” Despite the constitutional prescription to construe the National Security Act as outlawing only the activities posing a clear threat to the security of the state and democratic institutions, ordinary courts in charge of applying the law initially turned down their “judicial duty to rectify names” and to distinguish real threats from symbolic ones. As underlined by James West and Edward Baker, the precondition for South Korean judges to engage in such a rectification process was to neither be punished nor fear to be punished for ruling impartially in political cases, through sanctions such as being stigmatized as “enemies” when acquitting anyone suspected of antistate crimes.46 During the authoritarian years, the personal risks incurred by the quest for judicial independence and fairness were widely known and deeply felt by the small legal profession, which counted no more than 837 judges, 557 public prosecutors, and 1,483 licensed attorneys by the late 1980s. 47 84 Regime Transition and the Judicial Politics of Enmity

The control (through political indoctrination and constant surveillance) and possible retaliation to which jurists were subject made it very difficult for them to challenge the political bias characteristic of the administration of justice under the military regimes otherwise than by resigning in protest. 48 As judges were appointed for a fixed period of ten years and thus needed to have their tenure periodically renewed, the threat or use of punitive nonreappointment was a major resource in the hands of the state to quell judicial dissent. 49 For instance, 52 judges were dismissed in 1961 (18 percent of the profession), 56 in 1973 (12 percent), and 37 in 1981 (6 percent). 50 In this context, judges were strongly disinclined to perform their duties impartially in political cases, most of which were tried on the basis of confessions obtained through torture. These obstacles did not imply that no resistance ever came from the judiciary. In the summer of 1971, for instance, 151 judges resigned en masse after arrest warrants were requested against two of their colleagues whose handling of a National Security Act case had displeased prosecutors. This clash intervened amid growing tensions between the courts and the increasingly repressive regime of Park Chung-hee at the turn of the 1960s and 1970s. 51 Antagonism between the executive and the judiciary climaxed in 1971, when the supreme court rendered a rare decision of unconstitutionality against a legislative provision exon- erating the state from compensating members of the armed forces and civilian employees of the military who were injured or had died in the performance of their official duties. 52 Retaliation came under the form of the Yusin constitution, which stripped the supreme court from its otherwise dormant power of constitutional review, bestowed this function upon an impotent committee, and opened an era in which judicial independence weakened even more. Throughout the 1970s and 1980s, the supreme court became known for its conservatism and for overturning lower courts’ rulings whenever they contradicted the government’s wishes. The transition of 1987 and the general elections of April 1988 brought about change, allowing the opposition parties to play a role in the composition of the Supreme Court of Korea. Its jurisprudence, however, has reflected conflicting leanings. On the one hand, the supreme and constitutional courts allied in their struggle for enhancing procedural fairness throughout the criminal justice system as shown in Chapter Six . On the other hand, the two courts embraced rival positions over how much protection was due to freedom of expression when balanced against national security. The constitutional court has Reviewing How the Enemy is Defined 85 bitterly described how its 1990 decision on the National Security Act’s article 7 was undermined by the jurisprudence of the supreme court, which “substantially eviscerat[ed] the meaning of the decision of limited constitutionality.” 53 Regardless of the constitutional court’s injunction to narrowly interpret article 7, the supreme court continued to define a broad range of publications as “materials benefiting the enemy,” characterizing their possession or diffusion in a 1992 landmark case as “active and aggressive expression threatening the security of the state and the liberal democratic system, going beyond the limit of the freedom of expression.”54 This defiant attitude on the part of the supreme court was also espoused by lower tribunals in the years following the regime change. Only in 1994 did ordinary courts start to refer to the restrictive interpretation of article 7 articulated in the 1990 constitutional ruling and begin to curb abuses of the security legislation. 55 This led some of them to refuse arrest warrants unreasonably requested by prosecutors or to acquit defendants charged with antistate crimes for which evidence was lacking. 56 To do so, lower courts could not only rely on constitutional jurisprudence but also on the dissenting opinion of three supreme court justices writing in favor of setting free the national security suspects tried in the above-mentioned 1992 case. Their reasoning specifically called for distinguishing the “real” danger of antistate activities from the “symbolic” one posed by expressive contents identified with North Korean ideology, such as anticapitalism and anti-Americanism. In the minority’s words,

Even if a conduct is to praise, encourage, or align with the North Korean government’s propaganda which has been used as a method of the so-called policy of indirect invasion of the South, it should not be held illegal if it may not be seen as a conduct with a concrete and possible danger of destroying the existence and security of the Republic of Korea and the liberal democracy system. Fettered by the fact that it accords with the propaganda that North Korea has carried on, we must not conclude it illegal expression because of the symbolic danger which the tabooed materials of expression have . . . It is true that such expressions embarrass us. However, such embarrassment results from the fact such kinds of expressions . . . have been so thoroughly prohibited by reason of guarantee of national security, that the symbolic danger of the tabooed materials of expression is felt to us stronger than their real danger. The right way of a liberal democracy system is to remove 86 Regime Transition and the Judicial Politics of Enmity

the symbolic danger by daring to permit such expressions and making them go through competition of ideas.57

Rulings from the early 1990s illustrate the complexity in which judicial dynamics are embedded, which stems from divergences between institutions—the constitutional court, the supreme court, and lower courts all adopted different, and at times rival, positions over how to interpret the scope of antistate enmity under the National Security Act—and disagreements within each of them, as revealed by splits among judges. The fact that the 1990 constitutional decision was first defeated by the practice of ordinary tribunals, but later appropriated and reactivated by some of them, exemplifies the nonlinearity and contingency of judicial processes. As for the constitutional and supreme courts, their rivalry has not been limited to the issue of national security. Until the late 1990s, the Supreme Court of Korea proved consistently reluctant to abide by any decision of limited constitutionality, not solely the one relating to article 7 of the security legislation. The constitutional court has been at a disadvantage in this confrontation since it cannot review the constitutionality of other courts’ judgments. In late 1997, however, the institution reaffirmed the binding force of all its unconstitutionality holdings. 58 This ruling was pronounced after a complainant initially favored by a decision of limited constitutionality, but later sanctioned by the supreme court’s verdict in a taxation case, filed a constitutional petition against the validity of the Constitutional Court Act’s article 68, section 1, preventing constitutional justice from reviewing ordinary courts’ judgments. In its ruling, the supreme court had explicitly argued that “a limited constitutionality decision does not bind on the ordinary courts because the decision merely specifies the meaning and scope of application of the provision and leaves intact the statutory language.” 59 In reaction to this affront, the constitutional court reasoned that article 68, section 1, could not be interpreted as prohibiting the review of judgments that continue to apply laws in a manner already censored as inconsistent with the constitution. Its ruling strongly asserted that “unconstitutionality decisions . . . could take such forms as unqualified unconstitutionality, limited constitutionality, limited unconstitutionality, and nonconformity to the Constitution, and [that] the decisions in all these forms are binding.”60 This ruling was moreover justified as unavoidable “in light of other previous judgments by the Supreme Court that defied the decisions of the Constitutional Court,” such as its noncompliant interpretation of the National Security Act’s article 7. 61 Reviewing How the Enemy is Defined 87

The extent of the two institutions’ antagonism over the security legislation, however, should not be radicalized. Their disagreement over the interpretation of article 7 and the kind of expressive materials that may be considered as dangerous cannot mask both courts’ convergence over construing the National Security Act as a valid and relevant instrument of South Korea’s post-authoritarian order—not incompatible with constitutional values, but instead in the service of their defense. In the mid-2000s, the constitutional and supreme courts even sided together against the political forces in favor of abolishing the security legislation.

The National Security Act in Debate

The debate over the abolition of the National Security Act intervened at a specific juncture in South Korean politics, after President Roh Moo-hyun (February 2003–February 2008) emerged victorious from an episode of intense confrontation with the parliament. In the spring of 2004, Roh’s political win was double. On the one hand, the Constitutional Court of Korea had just rejected the impeachment motion voted against him by a majority of lawmakers. On the other hand, Roh’s minority Uri Party (yŏ llin uridang—UP) had obtained a landslide share of the vote in the general elections of April. With less than 50 seats in the National Assembly before the elections, the Uri Party now enjoyed 152 seats, against 9 for its rival Millennium Democratic Party (sae ch’ ŏ nny ŏ n minjudang—MDP) and 121 for the conservative Grand National Party (hannaradang—GNP). 62 It was in this context of perceived political strength and large popular support that Roh pushed for abolishing the security legislation.

The 2004 Context: The Adjudication of President Roh Moo-hyun’s Impeachment Case The high-profile intervention of the court in 2004 was triggered by a motion to impeach the president initiated by the parliament on March 12—and, more specifically, by the chairman of the National Assembly’s Legislation and Judiciary Committee, Kim Ki-ch’un (Kim Kich’un), after the motion was voted by 193 lawmakers out of 271 at the time. Its principal ground was Roh Moo-hyun’s alleged violation of his obligation to remain politically neutral in electoral times. By supporting a particular political party before the coming legislative elections of 88 Regime Transition and the Judicial Politics of Enmity

April, Roh was deemed to have acted in contempt of the constitution by an overwhelming majority of the National Assembly. The decision rendered by the constitutional court is enlightening insofar as it reveals features of the court’s attitude vis- à -vis each of the political branches. Although the constitutional court rejected the petition in favor of impeachment, its 50-page-long ruling represented an affirmation of judicial independence toward both the executive and the legislature. 63 First of all, the court refused to be bound by the National Assembly’s narrow vision of its role. The responsibility envisioned by the court for itself was more comprehensive than the one ascribed to it by the parliament, which saw the scope of the subject matter under review as “limited to the question of the constitutionality and legality of the impeachment procedure and to the question of whether or not the specific violations that allegedly constitute the grounds for impeachment in fact exist.” 64 While the court recognized that the case’s subject matter was determined by the grounds stated by the parliament, it also asserted its capacity to “determine the facts that led to the impeachment based on other relevant legal provisions” than the ones “which the petitioner alleges have been violated.” 65 This reasoning enabled the court to find Roh Moo-hyun guilty of some of the violations alleged by the National Assembly while interpreting these facts differently from the parliament. In the end, the court rejected the impeachment motion but its decision should not be read as an absolute exculpation of the president. On the contrary, the ruling found that Roh had committed several infractions against the law, including the violation of his neutrality obligation in times of elections. The court argued, however, that not all such violations justified a removal from office given the gravity of this measure’s impact on democratic institutions. According to justices,

[A] decision to remove the President from his or her office shall be justified in such limited circumstances as where the maintenance of the presidential office can no longer be permitted from the standpoint of the protection of the Constitution, or where the President has lost the qualifications to administrate state affairs by betraying the trust of the people.66

As Roh Moo-hyun’s actions were found to have been accomplished without “affirmative intent to stand against the constitutional order,” the petition for impeachment was rejected. 67 Interestingly, this outcome only represented the first part of the court’s twofold conclusion. Reviewing How the Enemy is Defined 89

The last paragraphs of the ruling are indeed dedicated to justifying the court’s decision not to disclose the process and result of its deliberation by withholding the number and contents of separate or dissenting opinions. It can be inferred from this choice that the court sought to reinforce the legitimacy of its ruling by presenting a united front but that such a solution was premised upon the existence of contentious views within the institution. It should also be noted that the impeachment case was not the only political controversy the court settled during its third term (September 2001–September 2007), when it also had to pronounce itself on the construction of a new administrative capital outside Seoul and on the electoral system of proportional representation. 68 It is in this context of heightened visibility that the Constitutional Court of Korea intervened in the debate over abolishing the National Security Act.

Cartography of Forces and Arguments in Debating Abolition In early September 2004, President Roh Moo-hyun unleashed such a debate by strongly arguing for the abolition of the law in an evening TV program of the popular MBC channel. On that occasion, Roh declared that the law altogether deserved to be relegated to a museum for having been a systematic tool of oppression against those who opposed the government, rather than an instrument to protect the state against actual threats.

The National Security Law has been used mostly to oppress people who opposed the government rather than to punish those who threatened to throw the country into crisis. During this process, tremendous human rights abuses and inhumane acts have been conducted. It is part of Korea’s shameful history and an old legacy of dictatorships which we are unable to use now . . . The National Security Law should be abolished and provisions necessary for national defense addressed by revisions to clauses of the criminal code. 69

The constitutional and supreme courts were highly involved in the controversy prompted around the issue, delivering a series of rulings that reaffirmed the validity and significance of the security legislation for contemporary South Korean society. In doing so, the courts not only resisted the position of Roh but also that of other institutions, such as the National Human Rights Commission. 70 On August 26, 2004, 90 Regime Transition and the Judicial Politics of Enmity the constitutional court confirmed the constitutionality of the security legislation’s article 7 once again, arguing that the provision could no longer be used to suppress activities such as academic research and artistic expression not posing a danger to the state and the constitutional order thanks to the 1991 revision of the law. 71 In addition, the court accompanied its decision by a press release warning lawmakers that “it will be necessary for the National Assembly when it deals with the security law issue to reflect on public opinion and the constitutional court’s ruling.” 72 Beyond freedom of expression, the status of North Korea and its characterization as an antistate organization were also at the heart of the dispute about the contemporary relevance of the National Security Act. In the 2004 constitutional case at hand, the complainants claimed that the law no longer provided a valid framework in the context of the “increased political, economic, and cultural exchanges” taking place between the North and the South since the inter-Korean summit of June 2000.73 The petitioners also proposed that the activities endangering national security be dealt with through new or existing provisions in the criminal code. This position is still widely embraced by the abo- litionist camp and indicates that its aim is not to disarm the state but to ensure its defense through other means than those inherited from the authoritarian years. By contrast, the constitutional court estimated that “there was no clear sign that North Korea has renounced to overthrow our liberal democratic order,” and that the National Security Act could not be interpreted as violating the constitution as long as this order remained exposed to the menace of the North’s “great military strength.”74 The supreme court adopted a very similar reasoning on August 30, 2004, a few days before Roh Moo-hyun’s televised declaration. 75 Its decision affirmed the need for retaining the National Security Act by upholding the conviction of members from the student union Hanch’ongnyŏ n, considered an outlawed antistate organization for “adopt[ing] violent revolutionary policies commensurate with North Korea’s policy of reunification by communizing the South, thereby aiming to praise, encourage, and publicize such activities and sympathize with such acts.” 76 In 1997, the supreme court had confirmed the illegal nature of Hanch’ongnyŏ n but deemed necessary to review its characterization as an “enemy benefiting” organization every year given that new representatives were elected annually. 77 Since then, prosecutors have asked the courts to continue defining it as an antistate, and therefore illegal, entity. 78 Reviewing How the Enemy is Defined 91

In its 2004 ruling, the supreme court confirmed the conviction of two members of the organization found guilty of praising North Korea and sentenced to 30 months of imprisonment by a lower court. Defending the contemporary relevance of the National Security Act, the supreme court strongly called into question the assumption that increasing contacts between the two Koreas, such as the 2000 inter-Korean summit, meant a pacification of their relations. In the judgment’s words,

Just because there are exchanges and cooperation between the two Koreas, the Supreme Court cannot see that North Korea’s antistate character has disappeared and that the National Security Act has lost its legal power . . . Under such conditions, we must be careful not to disarm ourselves. 79

Both the constitutional and supreme courts’ decisions were clearly perceived as a political gesture directed against the Roh Moo-hyun administration in the context of the mounting debate over the National Security Act. One indicator revealing the intensity of the controversy can be found in the fact that the very constitutionality of Roh’s statements in favor of repealing the law was challenged. A small bench of three justices, however, dismissed the case on the procedural ground that the position publicly advocated by Roh on TV “did not constitute an exercise of state power” infringing on basic rights and therefore did not represent a proper subject matter for judicial review.80

Elucidating the Constitutional Court’s Apparent Reversal Throughout the 1990s, while levels of arrest and imprisonment under the National Security Act remained high, the Constitutional Court of Korea had several occasions to review challenges against the National Security Act. In particular, its justices were repeatedly presented with the opportunity to reexamine the constitutionality of article 7 limiting freedom of expression. The court has constantly reiterated the provision’s validity, as long as it is conceived narrowly—that is, as punishing only those activities that intentionally pose a clear threat to national security or the basic order of free democracy. Although the constitutional court admitted the presence of “remaining ambiguities” in the revised version of the National Security Act, it also found that its 1991 amendments “made interpretations deviating from the legislative intent nearly impossible.” 81 92 Regime Transition and the Judicial Politics of Enmity

The Constitutional Court of Korea’s commitment to preventing abusive interpretations of the notion of antistate enmity positioned it at the vanguard of the necessary effort for controlling inherited mechanisms of repression in the immediate aftermath of the transition. By the early 2000s, however, it would have been problematic to describe the constitutional court as belonging to the progressive side on the map of public attitudes about reforming the security legislation. Although the court seems to have evolved toward greater conservatism throughout time, its jurisprudence has in fact remained highly consistent. After all, even the institution’s most critical rulings (such as the 1990 decision of limited constitutionality on article 7 and the two decisions of unconstitutionality rendered in 1992 and 2002) never challenged the continued relevance of the security legislation, nor its persistent characterization of North Korea as an antistate organization. Early on, constitutional jurisprudence contributed to consolidating, rather than undermining, major aspects of South Korea’s politics of enmity by constructing the National Security Act as a relevant tool to preserve not only the safety of the state but also the stability of democratic institutions. Without proceeding from a radical shift of position, the court’s apparent conservative reversal has to be attributed to a reconfiguration of forces in the political debate about the National Security Act. The fact that its abolition was fully endorsed by an administration in power was an unprecedented event. Although former president Kim Dae-jung had denounced the “poisonous clauses” of the security legislation in the past, the law was heavily relied upon under his government. 82 Its use to suppress the mobilization of workers during the socioeconomic crisis of the late 1990s and early 2000s notably demonstrated the resilient solidarity between national security and a certain model of development premised on growth-first policy and the political exclusion of labor. Yet, this dimension of the National Security Act was not the one called into question in 2004. The antagonistic positions then articulated by both pro- and anti- NSA forces reflected not only the strong polarization generated by the issue but also the boundaries of the discursive space in which arguments were exchanged. As pointed out by Charles Armstrong,

[N]either the administration of Kim Dae-jung nor that of Roh Moo-hyun were as “progressive” (the term favored by the Korean left) as they initially have appeared. In the case of Roh in particular, there was an acute contradiction between his core support base Reviewing How the Enemy is Defined 93

and political background on the one hand, and on the other, the neoliberal economic agenda he advanced. 83

Roh Moo-hyun was indeed a former Minbyun attorney, the Lawyers for a Democratic Society association founded in 1988 which, as detailed in Chapter Three , was instrumental in investing the site of constitutional justice as an arena to challenge the non-inclusiveness of South Korean politics after the transition. Once in office, “President Roh proceeded to fill top government posts with close colleagues who were also Minbyun lawyers, for example, Ko Yeong-ku [Ko Yŏ nggu] as head of the National Intelligence Service and Kang Keum-sil [Kang Kŭ msil] as the first female Minister of Justice, thereby drastically raising the profile of Minbyun.” 84 These nominations conversely had the effect to unleash a wave of conservative backlash both in the National Assembly and in civil society, as illustrated by the intense mobilization of veterans’ associations, business groups, and mainstream media against the security legislation’s repeal. Despite Roh’s Uri Party having a majority of seats in the National Assembly, months of bitter political conflict and pressure in and outside the parliament prevented the National Security Act from being abolished. In a sense, the vast array of interests galvanized to resist reform can be seen as the strongest evidence to the law’s continued significance, while the position defended by the Roh administration limited itself to characterize the security legislation as an anachronistic legacy of the past. 85 Framed in this sole light, the proposal to repeal the National Security Act has been utterly divisive without ever putting into question the security legislation’s full exclusionary functionality since the 1987 transition to democracy.

CHAPTER FIVE Reviewing the Contours of the National Community : The Body Politic Beyond and Below the 38th Parallel

Whom a state designates as its adversaries and how it confronts them are the most salient parts of the politics of enmity. Yet, the defense of society is as much geared toward opposing a “them” as protecting a sense of “us.” 1 The contours of the national body can appear through the looking glass of enmity. The definition of the former and the delin- eation of the latter are intertwined, especially when security threats are associated with a conflict of sovereignty in which the very boundaries of the nation-state are at stake. In this case, if the enemy is always constituted as the “other,” he is not necessarily an “alien.” On the contrary, he may even be envisioned as a potential or future member in the community of national subjects. This chapter complements the analysis of how the Constitutional Court of Korea has redefined enmity by examining the ways in which its jurisprudence has reviewed a variety of laws that highlight criteria of inclusion in, and conditions of exclusion from, the collective body partly contradicting the National Security Act. Overall, a topography of membership and dangerousness irreducible to the 38th parallel will emerge from this part of the research.

Enmity, Territoriality, and Ethnicity

The primary basis for defining enmity in South Korea seems to be a territorial one, materialized by the frontier that weaves along the 38th parallel. 2 The conceptualization of the North as an “antistate 96 Regime Transition and the Judicial Politics of Enmity organization” illegally controlling half of the country does not exhaust the South’s construction of the division. Compared with the National Security Act, greater ambivalence permeates the text of the constitution. On the one hand, its article 3 defining the Republic of Korea’s territory as encompassing the whole peninsula neighbors article 4 con- secrating “peaceful unification” as a goal. Accordingly, North Korea is characterized both as an antistate organization and a partner of reunification in the jurisprudence of the supreme and constitutional courts. 3 On the other hand, the boundaries of the body politic that arise from the negation of the North’s sovereignty further complicate the ascription of enmity by unsettling the status of North Koreans, whose threatening character goes unquestioned under the security legislation. Indeed, North Korean nationality is not acknowledged by the South as a result of its constitutional denial of the North’s statehood. North Koreans therefore appear as figures of the other and the same, members of the imagined national community with whom communicating is nonetheless forbidden without governmental authorization. These legal paradoxes were not deeply affected by the shift in inter-Korean relations generated by the June 2000 summit held in Pyongyang between Kim Jong-il and Kim Dae-jung. Despite the mutual recognition of each Korea’s legitimacy by the two leaders, constitutional law continues to be interpreted according to an “originalist” understanding of the division. Historically, the view that “the other side was simply the northern half or southern half and a lost territory to be recovered” has been coextensive with the right defended by each Korean republic to “sole representation of the entire (ethnic) community.” 4 Now that the two Korean states have politically accepted each other’s existence, the belief in ethnic homogeneity and the idea that the people of both countries form a single nation sharing a common bloodline and ancestry still inform the project of reunification but as a future and distant horizon rather than an imminent one to be achieved on unilateral terms. Although ethnic homogeneity is often treated as an inherent characteristic of Korea, Shin Gi-Wook has demonstrated how the ethnicization of the notion of nation was the contingent result of a historical process. The first description of Korean national identity through racial lenses is usually attributed to early-twentieth-century historian Shin Chae-ho (Sin Ch’aeho). In his 1908 New Reading of Korean History (toksa sillon), Shin offered a version of Korean history severed from the conventional dynastic narratives that had prevailed until then. In their place, Shin articulated a discourse about the Korean nation as endowed with historical agency of its own, an enterprise that implied “rediscovering” the Reviewing Contours of National Community 97 country’s particularistic origins—including in terms of ethnicity—at a time when changing regional and world dynamics made its position vulnerable. 5 The ethnic conception of Korean nationalism fully tri- umphed over competing categories of collective identity during the following decades, in reaction to the experience of Japanese colonial rule and its discriminatory assimilationist policies. Territoriality, however, is not irrelevant to the definition of this national imaginary supposedly encompassing anyone belonging to the Korean minjok, a term that conflates the three concepts of nation, ethnicity, and race. 6 The frame through which the Korean nation is projected remains the peninsula, a conception that ventures beyond the 38th parallel but not outside any kind of physical confines. The transcendence of the inter-Korean frontier is accomplished in the name of the common ethnic nation but in the space of the unified and sovereign Korean state that existed before its annexation by Japan in 1910. As a result, ethnic nationalism is a force of inclusion that overcomes the division but largely stays territorially based, confined to the peninsula’s boundaries. Ethnic Koreans located outside this space are not integrated in the national imaginary the way peninsular Koreans are. In contemporary South Korea, both ethnicity and territoriality thus appear relevant to the definition of membership in the national community. Sharing the same ethnic identity is only a selective factor of integration, which functions differentially depending on the regional origins and local characteristics of the Korean groups considered.

North Koreans: Never Fully Belonging Regardless of the two Koreas’ mutual recognition, constitutional law and jurisprudence still operate within—and reactivate—the framework set in place in 1948, at the time of their rival founding: since North Korea is not envisioned as a sovereign state, it can only host residents but not citizens, as reaffirmed by the constitutional court in a 2000 Nationality Act (kukch ŏ kpŏ p) case.

Our Constitution has stated since the Founding Constitution, “The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands” (Article 4 of the Founding Constitution; Article 3 of the current Constitution). The Supreme Court has ruled accordingly that North Korea is part of the Korean peninsula and therefore subject to the sovereignty of the Republic of Korea, and therefore that North Korean residency should not 98 Regime Transition and the Judicial Politics of Enmity

interfere with the acquisition of the nationality of the Republic of Korea.7

North Koreans are considered as potential nationals (kungmin) of the Republic of Korea rather than “overseas Koreans” (chaeoe tongp’o, literally overseas co-ethnics), who can be either nationals residing abroad or ethnic Koreans with foreign nationalities. 8 Yet, North Koreans’ acquisition of the ROK’s citizenship is only possible once they enter its territory and go through an intensive screening process. This condition is deemed essential to avoid any “diplomatic problem” with both the North and third countries like China, where North Korean refugees are bound to temporarily or permanently dwell-in despite risks of repatriation. As contended by the government in the case on the Nationality Act,

Our country does not recognize the nationality of North Korea. Therefore, a resident of North Korea can be considered as having our nationality. It may cause a diplomatic problem with a third country if we recognize as our nationals those North Koreans residing in the third country outside the reach of our effective control. There is no diplomatic problem in recognizing the nationality of a North Korean resident who already entered our country. 9

Similar “diplomatic problems” have been advanced by the South’s authorities to regulate the immigration of ethnic Koreans with foreign nationalities, such as chos ŏ njok (ethnic Koreans from China, known as chaoxianzu in Chinese) and chaeil kyopo (ethnic Koreans living in Japan, or zainichi in Japanese). Belonging to the imagined realm of “Koreanness” does not imply for them a correlative right to membership in the body politic of the South as discussed later in this chapter. Ethnic Koreans from abroad are not welcomed by the government in the way North Koreans officially are. The latter enjoy a special status not only in the national imaginary of the South but also in the framework of its immigration laws. South Korea thus appears to enforce a narrow definition of the eligibility criteria to become a national in contrast with countries that encourage the immigration of fellow community members regardless of their geographical origins. In Israel, for instance, the Law of Return enables not only Jews from anywhere but, since 1970, “a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew” to resettle in the Hebrew state and be automatically entitled Reviewing Contours of National Community 99 to citizenship. 10 Yet, Israel and South Korea are not fundamentally opposed if one takes into consideration that their immigration policies are connected to specific state-building imperatives in both cases. Moreover, the Israeli nationality framework is all but insensitive to security concerns. In 2003, the Citizenship and Entry in Israel Act was adopted to prevent an Israeli Arab from reuniting with his or her spouse or child living in the Occupied Territories under certain conditions of age, a scheme that was upheld by a majority of the Supreme Court of Israel in 2006.11 The family model—and its rupture—is frequently referred to as embodying the kinship ties upon which Korean national solidarity is supposedly built, especially in the context of the division. The image of the two Koreas as a single but separated family is not merely a metaphor. Thousands of families were actually split by the Korean War (1950–1953)—before its outbreak, the frontier was relatively porous and movements across possible. The lack of reliable information makes estimates precarious, but according to James Foley’s research on the topic, there were 500,000 to 750,000 surviving members of divided families in 1990. 12 In the romantic vision of reunification exalted by the minjung movement during the 1980s, the two Koreas were also depicted as separated lovers (or more exactly as a married couple whose harmony had been forcibly broken), longing for reunion. 13 This rhetoric conveyed a number of strategic implications: reversing the distribution of roles imposed by the state’s official narrative (with the division no longer being blamed on the North, now a fellow victim, but on the United States, the new “evil power”) and turning the two Koreas into protagonists (not “passive victims of history but active redeemers of it”). 14 Another recurring motif in the representation of the division is the metaphor of brotherhood, captured by the emblematic iconography of the Statue of Brothers (hy ŏ ngjeŭ i sang) erected in the War Memorial of Korea (chŏ njaeng kiny ŏ mgwan). 15 In this state-sponsored but post- authoritarian version of the division,

The story of national reunification is written as a narrative of brotherly reunion. Significantly, the meeting between the two brothers—one strong and one weak, one older and the other younger—is portrayed in such a way that the genealogy of the ancestral blood “line” was never questioned: South Korea is the oldest son, the legitimate “heir” of Korea’s patriotic warrior tradition, whose forgiveness of his weaker, wayward brother becomes 100 Regime Transition and the Judicial Politics of Enmity

the condition upon which North Korea is finally allowed to return to the “arms” of the family/nation fold.16

The notions of shared bloodline and common ancestry do not necessarily support a vision of nationhood based on strict equality as implied by the significant connotations of status related to gender and seniority in the above-mentioned narratives. The condition of North Koreans living in the South provides another illustration of this reality. Upon arriving in the other half of the peninsula, North Koreans are seldom treated as fellow nationals. They are first and foremost considered as escapees or refugees, and therefore subjected to both special security screening and adaptation programs. 17 To be eligible to citizenship in the South, North Koreans have to prove that they hold North Korean nationality according to North Korean laws. In other words, possessing an unrecognized citizenship paradoxically represents the legal requirement to be stripped of it. At the end of 2013, the Ministry of Unification (t’ongilbu) estimated that more than twenty-six thousand North Koreans had defected to the South (see table 5.1 ). While they numbered less than a thousand before 1998, the flow accelerated in reaction to the famine that decimated between six hundred thousand and one million people in the second half of the 1990s throughout the peninsula’s northern part. 18 Since the mid-2000s, women account for more than 70 percent of refugees. Most of them come from the regions of North Korea neighboring China. Upon entering the South, refugees go through an intensive security screening process carried out by several institutions, including the Ministry of Unification, the intelligence agency, and the police. 19 In 1999, nine defectors were granted compensation for physical and psychological damage after having been tortured by intelligence agents during their interrogations.20 Once examination has established that refugees are neither spies nor ethnic Koreans from elsewhere (particularly China), their custody is transferred to Hanaw ŏ n, the resettlement and support center for “social adaptation” (sahoe ch ŏ gyong), which has operated a 12-week program of adjustment to life in the South since the late 1990s. 21 Many studies, however, have reported the difficulties encountered by North Koreans, especially in terms of socioeconomic—rather than political—accommodation due to their higher unemployment rate and lower wages. 22 As far as this research is aware, no constitutional complaint alleging a violation of basic rights has ever been filed by North Korean refugees, whereas ethnic Koreans Table 5.1 Number of North Korean refugees entering South Korea before and since 1998

Year <1998 <2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Total

Male 831 565 510 474 626 424 515 573 608 662 591 795 404 369 8049 Female 116 478 632 811 1272 960 1513 1981 2195 2252 1811 1911 1098 1145 18668 Total 947 1043 1142 1285 1898 1384 2028 2554 2803 2914 2402 2706 1502 1514 26717 % of women 12 46 55 63 67 69 75 78 78 77 75 71 73 76 70

Source : Based on the statistics of the Republic of Korea’s Ministry of Unification. 102 Regime Transition and the Judicial Politics of Enmity from China have successfully resorted to the court to challenge statutes discriminating against them.

Ethnic Koreans from China: Amalgamation of Security and Economic Concerns Constitutional jurisprudence has long established that a foreigner can be “the bearer of basic rights,” although some benefits and privileges may only be enjoyed by citizens, such as becoming a public official or having the right to vote.23 Many opportunities are nonetheless granted to ethnic Koreans with foreign nationalities who wish to come to the South to engage in economic activities (see table 5.2 for a description of the Korean diaspora’s geographic distribution). The scheme designed by the National Assembly in 1999 to facilitate these activities, the Act on the Immigration and Legal Status of Overseas Koreans (chaeoe tongp’opŏ p), drew a clear distinction between the individuals who emigrated before the Republic of Korea’s founding in 1948 and the ones who only left afterward. 24 Embedded in the choice of this temporal marker was the possibility to further differentiate between “ethnic Koreans living in China or the former Soviet Union” (most of whom emigrated before 1948) and “Korean Americans” (whose majority departed after 1948).

Table 5.2 Korean diaspora populations per region

Region Country 2005 2007 2009 Percentage

Sum Total 6,638,338 7,044,716 6,822,606 100 Asia, Oceania Total 3,590,411 4,040,376 3,710,553 54.39 Japan 901,284 893,740 912,655 13.38 China 2,439,395 2,762,160 2,336,771 34.25 Other 249,732 384,476 461,127 6.76 America Total 2,392,828 2,341,163 2,342,634 35.65 United States 2,087,496 2,016,911 2,102,283 30.81 Canada 198,170 216,628 223,322 3.27 Other 107,162 107,624 107,029 1.57 Europe Total 640,276 645,252 655,843 9.61 Former Soviet 532,697 533,976 537,889 7.88 Republics Western Europe 107,570 111,276 117,954 1.73 Middle East Total 6,923 9,440 13,999 0.2 Africa Total 7,900 8,485 9,577 0.14

Source : Based on the statistics of the Republic of Korea’s Ministry of Affairs and Trade. Reviewing Contours of National Community 103

The constitutionality of this provision was soon raised before the constitutional court, by complainants described in the case as “ethnic Koreans with Chinese nationality [who] currently reside in the [People’s] Republic of China.” 25 Petitioners not only argued that their human dignity, right to happiness, and right to equality had been violated, but also that granting special advantages to “those who emigrated after the establishment of the [1948] Korean Government [was] tantamount to negating the legitimacy of the Provisional Republic of Korea Government (taehanmin’guk imsi chŏngbu),” which was formed in exile during the Japanese colonial era and operated in China (first in Shanghai, then in Chongqing) after 1919. In response to the complaint, counterarguments were presented by the Ministry of Justice to support this differential scheme, justifying its discriminating character on the ground of both national and economic security—two intertwined motifs in the defense of South Korean society. The Ministry’s opinion also contested the petitioners’ ability to challenge the contentious provision, alleging, “there is no evidence that the complainants are ethnic Koreans who emigrated to a foreign country or their lineal descendants (the only evidence regarding qualification of the complainants is a copy of passports proving that the complainants are Chinese nationals).” 26 In addition, the government defended that all ethnic Koreans were not entitled to equal treatment. Granting ethnic Koreans from China the same employment and investment opportunities as Korean Americans (chaemi kyopo) was defined as entailing three major risks: destabi- lizing the labor market by facilitating the migration of low-waged workers; opening a new route for infiltration to North Korean agents; and engendering potential “diplomatic frictions.” In the words of the Ministry of Justice,

Simplification of regulations on entry and exit of ethnic Koreans who emigrated before the establishment of the Korean Government could lead to an influx of ethnic Koreans with Chinese nationality, relatively low-waged workers, into the nation’s labor market and cause a significant number of social problems. Under the ongoing South-North confrontation, there is also the risk of it being used by North Koreans as a route for infiltration, thereby causing immediate security threats. It is also very likely that the State will face diplomatic frictions with China who is extremely sensitive to nationalism among racial minorities within its border if the Act were to include ethnic Koreans who emigrated before 104 Regime Transition and the Judicial Politics of Enmity

the establishment of the Korean Government as potential beneficiaries of the Act. 27

These motivations were not found sufficiently compelling to make discrimination against pre-1948 migrants reasonable according to six of the nine constitutional judges. The provision was actually deemed all the more unfair since it disadvantaged ethnic Koreans already suffering from a dual misfortune: currently enjoying a lower socioeconomic status than other diasporic groups; and having been “forced to leave their motherland” in the past. 28 Therefore, a majority of the court held the law neither valid “from a humanitarian perspective,” that is, from the standpoint of protecting vulnerable populations, nor from a “national” one, in light of the state’s duty not to treat unjustly the “patriots” who served its cause.

The State [is] requiring those ethnic Koreans who have emigrated before the establishment of the Korean Government, mostly ethnic Koreans living in China or the former Soviet Union who were forced to leave their motherland to join the independence movement, or to avoid military conscription or forced labor by the Japanese imperialist force, to prove that they were explicitly recognized as Korean nationals before obtaining foreign citizenship. Legislation of an act discriminating ethnic Koreans who were involuntarily displaced due to historical turmoil sweeping over the Korean peninsula cannot be justified from a humanitarian perspective, let alone from a national perspective, in the sense that no country on earth has legislated an act to discriminate against such compatriots, when it seems only appropriate to assist them. The public interest to be achieved by this legislation is too minor compared to the injury inflicted on individuals being discriminated by the Act.29

This quote reveals how the constitutional court’s discourse on the colonial era and Korean independence movement is constrained by the traditional blind spots of South Korean official historiography: on the one hand, the refusal to acknowledge that resistance to Japanese rule was only the deed of a minority; on the other hand, the political impossibility to concede that the independence movement’s most active elements abroad and at home were leftists, especially after the 1930s.30 The court’s account of pre-1948 migrations thus betrays its own narrative confines. Koreans who left the peninsula during the colonial era Reviewing Contours of National Community 105 are all inevitably described as opponents to Japanese imperialism, having either joined independence fighters or evaded military conscription and forced labor. This clearly amounts to discounting the fact that most displacements took place as a result of Koreans’ intense mobilization under these last two processes rather than due to their avoidance. In addition, the comparatively small proportion of those who joined the independence movement did not necessarily rally the cause of the provisional government in exile. Major factions with socialist and communist leanings also operated from other parts of China and Russia, such as the group that future North Korean leader Kim Il-sung was heading in Manchuria.31 Consequently, the court’s affirmation that most ethnic Koreans who emigrated before 1948 were necessarily “patriots” and independence activists is highly dubious. It should not be inferred from this refutation of the court’s account that the South Korean government had a legitimate basis to discriminate against ethnic Koreans from China. Rather than drawing new jurisprudential conclusions, the point of the present analysis is to interrogate the type of national narrative and imaginary that the constitutional court has adhered to and deployed in the post- authoritarian era, with its potential exclusionary consequences. In the case at hand, an apparently progressive decision was nonetheless reached on the basis of a conservative premise: conditioning law’s protection to individuals’ national worth.32

Ethnic Koreans from Japan: The Division Displaced The categories of ethnic Koreans dealt with by the constitutional court do not only include residents from North Korea and Koreans from China. Koreans living in Japan are also apprehended with caution as the division of the peninsula is displaced within their community. Like migrations to China, the settlement of Koreans in Japan was anterior to 1945 and catalyzed by colonial dynamics. The 1910 annexation treaty turned all Koreans into subjects of the Japanese empire, although they retained a special and inferior status as ch ō senjin, “people of Chosŏ n” (Korea’s traditional name, which the Democratic People’s Republic of Korea retained after 1948). In the late 1930s, Koreans were heavily mobilized in order to contribute to the war effort through forced labor and conscription as previously evoked. 33 In the wake of Japan’s surrender in 1945 and Korea’s subsequent liberation, “almost two-thirds of the over two million Koreans residing in Japan returned to the Korean peninsula.” 34 Those who stayed in 106 Regime Transition and the Judicial Politics of Enmity the archipelago numbered approximately six hundred thousand people, constituting Japan’s largest minority. Having emigrated during the colonial era for social and economic reasons rather than forced military displacement, they chose not to repatriate in 1945 and were considered by Japanese authorities as “stateless” Korean nationals. In 1948, Koreans from Japan were faced with the choice to opt for the nationality of the South or that of the North, exporting the division outside the peninsula. The status of ethnic Koreans from Japan was touched upon by the constitutional court in 2007, when it reviewed whether depriv- ing all nationals residing outside South Korea from the right to vote amounted to unfair discriminatory treatment. While the universality of this incapacitation was invalidated by the court, its ruling reasoned that security considerations—namely, “our special situation of continuing confrontation with the North”—justified preventing both North Korean residents and pro-North residents in Japan from participating in elections. 35 Let us recall that these two groups are assimilated to nationals of the Republic of Korea since they identify with a citizenship—that of the North—which South Korea does not legally recognize. Contrary to nationals of the South living in other countries or to pro-South residents in Japan, they do not hold passports. This was a major fact advanced by the court to counter the “vague and abstract danger” that North Korean residents and individuals “aligned with the General Association of Korean Residents in Japan” would be easily able to influence elections under false identities if the right to vote was given to other nationals living abroad. 36 The pro-North General Association of Korean Residents in Japan (chae ilbon chos ŏ nin ch’ongnyŏ nhaphoe, or ch’ongny ŏ n) mentioned in the judgment was organized in 1955 in opposition to the pro-South Korean Residents Union in Japan (chae ilbon taehan min’guk mindan, or mindan). Mindan was formed in 1946, after having made secession from the main League of Koreans in Japan (chae ilbon chos ŏ nin yŏ nmaeng, or chory ŏ n) created in October 1945 with leftist leanings. 37 Choryŏ n naturally aligned with the Democratic People’s Republic of Korea in 1948, a choice then supported by a majority of the Korean community in Japan and per- petuated by its successor organization, Ch’ongny ŏ n. As pointed out by Erin Aeran Chung,

[A]s many as two-thirds of the Korean population maintained their Ch ō sen nationalities, which, by default, made them North Reviewing Contours of National Community 107

Korean nationals despite the fact that most first-generation Koreans in Japan had come from southern Korea. Although some kept their Chō sen nationalities because they did not support either the North or South Korean government, for others, allegiance to North Korea was the nationalistic choice. 38

No matter their affiliation, Koreans from Japan disproportionately fell prey to security laws when visiting the South throughout the 1970s and were one of the designated target groups of ideological conversion. 39 It is estimated that “between April 1971 to February 1976, some thirty-six second-generation Koreans from Japan were arrested for their alleged links with the ‘pro-North Korean’ community in Japan and for violating South Korea’s National Security Law.” 40 The case of the Suh brothers is emblematic of this bias. In 1971, Suh Jun-sik (S ŏ Chunsik) and Suh Sung (Sŏ S ŭ ng), two second-generation Korean residents in Japan, were arrested while reentering South Korea where they pursued their studies. The Suh brothers were detained until 1988 and 1990 respectively, in virtue of their refusal to ideologically convert and renounce beliefs that they never held. 41 The 1987 change of regime did not signify the end of the conversion system, whose validity was challenged before the constitutional court in 1998. The verdict rendered in 2002 sheds light upon the mechanisms of exclusion operating inside South Korea to reject as enemies members of its body politic.

Enmity, Ideology, and Loyalty

Contesting the “Pledge to Abide by the Law”: From Hunger Strike to Constitutional Complaint In 1998, the Constitutional Court of Korea celebrated its first decade of adjudication. As of the beginning of that year, 3,720 cases had been filed since the start of its operations and 617 new requests reached the institution between January and December. 42 Among them was a constitutional complaint challenging the “pledge to abide by the law,” formerly known as the ideological conversion system, on the basis that it violated the freedom of conscience, right to pursue happiness, and right to equality of inmates sentenced under the National Security Act or the Assembly and Demonstration Act (chiphoe mit siwi e kwanhan p ŏ mnyul). In 1999, two other separate cases were filed on similar grounds and consolidated with the initial petition. 43 108 Regime Transition and the Judicial Politics of Enmity

Little information concerning the complainants is recollected in the decision. As is usual practice in the Constitutional Court of Korea’s jurisprudence, names were made anonymous by replacing their middle syllables with the letters ‘‘O/ ጚ ’’: Cho O-rok ( 눥ጚꈒ ), Cho O-won ( 눥ጚ낅 ), and Lee O-chul (넩ጚ뙕 ), whose last petition was filed alongside with 28 unmentioned prisoners. In addition, the facts that motivated the petitioners’ condemnations under the National Security Act were never exposed, removing both the crimes and their authors from the scope of the ruling as illustrated by the court’s summary of the first background case in the context of which the pledge was challenged:

The complainant was detained for violation of the National Security Act on February 2, 1978, and a sentence of life imprisonment was finalized on December 26, 1978. He was serving his term at Andong Correctional Institution when he was excluded from parole release on August 15, 1998 for refusing to submit the pledge to abide by the law. On November 26, 1998, the complainant filed a constitutional complaint against Article 14(2) of the Ordinance for Parole Review requiring inmates imprisoned for violation of the National Security Act to submit the pledge to abide by the law for parole review, alleging that the provision infringed on his freedom of conscience, the right to pursue happiness, and the right to equality. 44

This lack of factual texture is customary in the constitutional court’s rulings; yet, it also represented a revealing silence about the order of discourse in which justices operated in the case at hand. The issue of knowing who was subjected to ideological conversion in the first place, and for which crimes, was left entirely unaddressed by both the majority and dissenting sides of the court, while the legitimacy of such categories as “thought criminals” and “ideological enemies” was only partially called into question. The very circumstances surrounding the case that triggered the process of constitutional review, however, posed a deep challenge to the justices’ shared assumption that all conversion’s targets were genuine communist believers and national security offenders. Despite the erasure of his name from the constitutional decision, the first petitioner can be identified as Cho Sang-rok (Cho Sangnok), a national security inmate who received public attention in human rights circles after Amnesty International adopted him as prisoner of conscience in the late 1990s. In 1999, the organization launched an Reviewing Contours of National Community 109 appeal calling for his immediate and unconditional release. The letter of the appeal provided the following description of Cho’s case, which can be contrasted with the paucity of the overview given by the constitutional court.

Cho Sang-nok, aged 53, was arrested in January 1978 by the Agency for National Security and Planning (South Korea’s intelligence service) and held for 17 days without access to a lawyer or his family. During this time he says he was subjected to electric shocks, water torture and beatings in order to force him to confess to charges of espionage. He was convicted under the National Security Law of passing “state secrets” to North Korean agents in Japan and sentenced to life imprisonment. Amnesty International believes the charges were politically motivated and that the main evidence used to convict him was his own confession, extracted under torture. In spite of many appeals by Amnesty International and other human rights organizations, the South Korean authorities have provided no concrete evidence to substantiate the charges of “espionage.” He was excluded from a recent prisoner amnesty because he refused to sign an oath pledging respect for the law in South Korea (including the National Security Law). Cho Sang- nok is held in solitary confinement and is reported to be in poor mental and physical health following a series of hunger strikes staged to protest against the law-abiding oath and to demand an investigation into past human rights abuses. 45

Cho Sang-rok’s story was but an exception, illustrating the fate of an entire subclass of incidents in which South Koreans who visited Japan for study, business, or family meetings were arrested after return- ing home and accused of having been in contact with North Korean agents and pro-North Korean organizations during their stay abroad. As evoked earlier, the same was true for ethnic Koreans from Japan traveling between the two countries. Cho’s case was therefore one of many fabricated espionage cases during the regimes of Park Chung-hee and Chun Doo-hwan. Sentenced for the most serious offense under the National Security Act, spying, Cho and other fellow victims were subjected to the ideological conversion policy while fostering no belief in communism. 46 This paradoxical reality highlights the deep ambiguity that has characterized South Korean governments’ use of national security and anticommunism before, as well as after, the country’s transition 110 Regime Transition and the Judicial Politics of Enmity to democracy. The threat of North Korea, no matter its intensity, has consistently been mobilized to construct enmity broadly and include in its scope individuals or activities that did not endanger the safety of the state. The breadth of national security’s domestic uses and anticommunism’s effects appears as a blind spot of the Constitutional Court of Korea’s decision on the pledge to abide by the law. The court’s reasoning rested on the consensual premise that South Korea’s conversion policy only targeted “real enemies” against which the country still ought to protect itself in the early 2000s—this consensus, however, did not prevent disagreements over the means necessary to realize such an end. An additional source of implicit convergence can be found in the silence reigning over the colonial genealogy of the conversion system, an attitude characteristic of the conservative national narrative embraced by the constitutional court.

Colonial Roots and Authoritarian Reactivation of Conversion As epitomized by the pledge’s origins, Korea’s experience under Japanese rule produced institutional legacies that have endured after 1945. Acknowledging and analyzing the colonial roots of Korea’s modernity still represent a challenge in light of the “relentless politicization of the historical record that emerged after the division.” 47 This phenomenon has led to the subsumption of this period’s complex societal dynamics under the dichotomy between colonial repression and Korean resistance, a binary narrative deployed in nationalist historiographies both north and south of the peninsula. Under this scheme, colonialism and modernity are bound to be mutually exclusive, assuming that “colonial rule either destroyed or distorted Korea’s effort to modernize.” 48 The notion of ideological deviance and the correlated conversion program designed to reeducate “thought criminals” (sasang pŏ mjoeŭ i) were introduced by Japanese authorities in the mid-1920s, both at home and in colonial Korea. In Japan, they served to counter the left-wing movement that had developed in the second decade of the twentieth century, emphasizing the necessity of its anarchist, socialist, and communist partisans’ reintegration in the national body (kokutai) of subjects loyal to the emperor. 49 These mechanisms were replicated in Korea around the same time, and in the process transformed, to confront the domestic independence movement mostly composed of leftists after the failure of the pacific strategy of the March First Independence Movement in 1919 and the dissolution of the united front between radicals and gradualist moderates in the early 1930s.50 Reviewing Contours of National Community 111

The instrument designed to oppose resistance in Japan and colonial Korea, the conversion policy, can be described as a technology of coercion, surveillance, and discipline that operated against real or so-called leftist political activists in and outside prisons. Officially aimed at making them recant and profess their obedience to the existing institutional and legal order, the system worked in Korea through subjugation by a tailored and rationalized exercise of state violence (including solitary confinement, food deprivation, as well as various forms of physical and psychological mistreatments in detention). The inability of the Korean independence movement to reproduce itself in prison—an ordinary site of recruitment, formation, and organization for dissident groups in other contentious contexts—testifies to the “effectiveness” of both the conversion device and the larger apparatus in which it was deployed.51 In 1945, the conversion policy was abolished by the US provisional government in Japan but maintained in South Korea, albeit not formally. Again institutionalized in 1956 through a regulation order by the Ministry of Justice, ideological conversion became an integral part of the state repressive apparatus under Park Chung-hee’s Yusin system, a period of exacerbated social mobilization and repression under the banner of anticommunism. In 1973, so-called ideological conversion task forces were set up in the five prisons (Taej ŏ n, Kwangju, Ch’ŏ ngju, Taegu, and Mokp’o) where approximately five hundred unconverted prisoners were being kept. 52 Rather than being motivated by ideological concerns, the revival of the conversion policy in the 1970s coincided with the regime’s determination to prevent the imminent release of national security offenders whose long-term prison sentences were coming to a close. 53 In this respect, reinsertion in the fabric of society was never the system’s objective. On the contrary, the Social Security Act (sahoe anjŏ np ŏ p) was enacted in 1975 to strengthen the conversion program and authorize public prosecutors to prolong the custody of detainees deemed dangerous, even if they had written and signed a conversion statement. 54 Out of the five hundred detainees subjected to the conversion program in the 1970s, those who refused to recant came to be known as pij ŏ nhyang changgisu—literally, “unconverted long-term prisoners.” Numbering close to one hundred, most of them remained in detention until the 1990s, and sometimes until the very end of that decade like Cho Sang-rok, the lead complainant in the pledge to abide by the law case. As a result, the world’s longest-serving political prisoners at the time could be found in South Korea. The ideological conversion policy endured during the first ten years of South Korea’s democratization 112 Regime Transition and the Judicial Politics of Enmity although prison conditions and conversion’s methods started to evolve in the mid-1980s. 55

Released political prisoners have testified that during the 1970s and 1980s many prisoners were tortured to force them to “convert.” At present, however, the main pressure on prisoners is said to be a psychological one, including the denial of early release on parole. Prisoners who have not “converted” are also reportedly unable to receive and send regular correspondence, to meet visi- tors without guards being present, to have extra items of furni- ture in their cells, to work, watch television or to attend religious worship.56

The ideological conversion policy was replaced by a pledge to abide by the law in July 1998. The same year, the issue of the pledge’s constitutionality was raised before the Constitutional Court of Korea. No mention of the colonial origins of the program, neither by the majority opinion nor the dissenting camp, was made in the court’s 2002 verdict that upheld the pledge’s validity. The echo of this historiographical silence resonated all the stronger since the ruling could be read as a divided judgment on the conversion system’s history, albeit envisioned in a limited way.

Majority Ruling and Minority Opinion: Divergences within a Shared Order of Discourse The constitutional issue addressed in the decision was framed as twofold: first, whether requiring inmates imprisoned for violation of the National Security Act or the Assembly and Demonstration Act to submit a pledge to abide by the laws of the Republic of Korea before they could be considered for parole release violated their freedom of conscience guaranteed by article 19 of the constitution; and second, whether the differential treatment introduced by the obligation that those inmates alone sign the pledge violated their right to equality. Yet, what the majority and dissent actually engaged in through their respective reasoning was a judgment on the history of the ideological conversion system itself: had this instrument been sufficiently reformed to legitimately endure after the 1987 transition, or had excessive continuity prevailed and therefore compromised the nature of South Korea as a “free democratic society” emancipated from its authoritarian past? Reviewing Contours of National Community 113

The fact that the pledge did not impose to write an actual conversion statement but simply to “vow to respect the national legal order of the Republic of Korea” was presented by the majority as a decisive element of its compatibility with freedom of conscience guaranteed by the constitution. Indeed,

An inmate needs to fill out his name, Korean identification number, convicted crime, circumstance of conviction as well as sentence, pledge to abide by the established legal order of the Republic of Korea, future life plan, and other statements if desired. There is no standardized form of expression for the pledge, and in practice, most inmates simply write that “they will abide by the laws of Korea.”57

As the majority recalled, the pledge to abide by the law was precisely introduced to “silence criticism on the past ideological conversion program” and to neutralize the charge that it violated national security offenders’ freedom of conscience.58 Not requiring them to explicitly abjure their belief in communism but only to state their commitment to respect the laws of South Korea, the pledge was construed by seven justices as distinct enough from the pre-1998 device. The act of submitting the pledge was described as merely “reconfirming the duty to abide by the law that is duly required of all citizens,” thereby neither intruding on the domain of conscience nor injuring the right to equality of antistate criminals.59

Among the complainants are some long-term prisoners who have refused to renounce their beliefs in communism. They may be convinced that the contents of the National Security Act are contrary to their political beliefs or that the free democratic regime is against their ideologies, and their such beliefs may be known to others. However, as long as the contents of the pledge used for parole review require nothing more than what has been described above, such pledge does not touch upon the domains of conscience. Basically, the Constitution does not protect anyone’s right to overthrow the existing legal order or a free democratic order using such unconstitutional means as force or violence with vehement disrespect for the Constitution or other laws of the land. Requiring submission of a pledge to abide by the existing legal order or to respect the extant constitutional regime does not 114 Regime Transition and the Judicial Politics of Enmity

violate any constitutionally protected freedom or right, including the freedom of conscience. 60

On the contrary, two dissenting justices, Kim Hyo-jong (Kim Hyochŏ ng) and Choo Sun-hoe (Chu S ŏ nhoe), argued that the formal difference between the new pledge and the old conversion system only masked the underlying continuity existing between them since “both are used to effectively separate and isolate individuals with particular ideological beliefs.” 61 This reasoning led the minority to raise the fundamental issue of the means available to democratic societies in order to protect their existence without betraying their principles.

In a free democratic society, the rights of even opponents of free democracy are protected; only their specific actions can be restrained when they are deleterious to the public interest. The government must protect itself against extremists trying to overthrow the government via violence and force. In a free democratic society, however, the government can only penalize the opponents of democracy for their “actions”; it should not force them to renounce their ideology or make them pledge to abide by the law against their beliefs using any form of direct or indirect means of coercion. This is what distinguishes a free democratic society from a communist regime. 62

In ruling so, dissenting justices identified a dual process of differentiation for South Korea to qualify as a liberal democratic regime: from its authoritarian past and from its communist counterpart—namely, North Korea—as both criminalize(d) not only acts but also thoughts. Even in its rejection of the pledge, the minority nonetheless adhered to the postulate assumed by the rest of the court: that contemporary South Korea’s national security apparatus serves to confront real ideological enemies, that is, individuals who oppose the existence of the state or of its democratic institutions. While the National Security Act is still in force, the pledge to abide by the law was abolished by a decree from the Ministry of Justice in 2003, during Roh Moo-hyun’s presidency. This repeal does not entail that individuals convicted under the security legislation are now treated on an equal footing with other criminals. Being released from prison does not absolutely clear former national security convicts from suspicion. For instance, the Security Surveillance Act (poan kwanch’alp ŏ p) was enacted in 1989 to replace the 1975 Social Security Act, transforming Reviewing Contours of National Community 115 prosecutors’ prerogative to prolong inmates’ custody for security reasons into the power to place them under surveillance, without confinement. The application of surveillance measures to persons previously convicted for national security offenses is justified by the law “in order to prevent the danger of their recommitting crime and promote their return to normal sound social life, and thereby to maintain national security and social peace.” 63 Surveillance takes the form of an obligation to periodically report one’s schedule to a local police station, which includes providing detailed information about “political activities, meetings, trips and other matters as deemed appropriate by the police station chief,” and they can also entail the prohibition from having contacts with former fellow inmates and from participating in certain events or demonstrations. 64

Membership and Dangerousness Beyond and Below the 38th Parallel

The German legal scholar Gü nther Jakobs has evoked the notion of “anticipated punishability” to describe measures that punish by antici- pation a likely deviance from the law instead of punishing by reaction a realized offense. 65 Taken as a whole, such provisions shape what Jakobs calls the “criminal law of enmity,” which sanctions dangerousness rather than culpability. This displacement from one ground to the other allows authorities to impose sanctions aimed at preventing a probable harm rather than punishing an accomplished act. While it is highly questionable whether these measures should exist in democratic states since their existence contravene some of the fundamental principles of the rule of law, it cannot be contested that they have already been inserted in the fabric of various legal orders, both procedurally (through security surveillance and preventive confinement) and substantially (with restrictions on civil liberties such as freedom of expression or association in order to impede the realization of serious infractions). 66 From a comparative perspective, it should also be noted that the concern with the “loyalty” of citizens expressed in the pledge to abide by the law case is not specific to South Korean democracy. For instance, a Public Servant Loyalty Decree or Berufsverbot was implemented in West Germany in 1972 to ban “radicals” from becoming civil servants.67 The adoption of this controversial measure intervened in the context of the antiterrorist struggle against the Red Army Faction, 116 Regime Transition and the Judicial Politics of Enmity at a time when domestic violence influenced several significant legal developments. 68 While German courts upheld the Berufsverbot, a 1996 ruling by the European Court of Human Rights found disproportionate the dismissal of a public secondary school teacher who had joined the German Communist Party in the 1970s. 69 More infamous than the Berufsverbot is the American precedent set by Executive Order 9066 of February 1942, commanding that all Japanese Americans on the West Coast, regardless of their citizenship, be confined in internment camps due to fears of espionage and sabotage in the wake of Japan’s attack on Pearl Harbor in December 1941. The successive measures directed against citizens and residents of Japanese ancestry (curfew, evacuation, and confinement) were challenged before the U.S. Supreme Court in a series of cases at the heart of which was the issue of their loyalty—and how to verify it.70 In the most notorious ruling, Korematsu, the government argued that the impossibility to administer individual loyalty tests to the entire suspect population (which involved approximately 112,000 persons of Japanese ancestry, including 70,000 American citizens) made it necessary to have them first evacuated from the West Coast, then placed in detention centers, and only released once their allegiance to the United States could not be doubted. This scheme was validated by a majority of the court in a decision that was also the first one to hold that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” that “courts must subject them to the most rigid scrutiny,” and that only “pressing public necessity may . . . justify the existence of such restrictions.”71 Similarly, the cases reviewed in this chapter emphasize both the potencies and limits that characterize constitutional justice, ultimately highlighting the ambivalence with which the Constitutional Court of Korea has embraced its role as guardian of the post-authoritarian order. Two groups emerge from South Korean constitutional jurisprudence at the margins of the body politic: “problematic” categories of ethnic Koreans and “disloyal” Southern citizens. They are respectively associated with outer and inner projections of enmity, operating both outside and within South Korea’s physical boundaries. The analysis of cases related to both nationality laws and ideological conversion thus draws a more subtle and complex picture of the division than that of a fine line stretching along the 38th parallel. The institutional mechanisms of inclusion and exclusion at work in the South are not limited to the inter-Korean border. Inclusion can be projected beyond the frontier, albeit selectively, while certain forms of political exclusion are entrenched beneath. If nationality cases reveal the limitations of ethnic Reviewing Contours of National Community 117 identification—or “Koreanness”—as a factor of integration in the body politic, the conversion ruling importantly illustrates how being a citizen of the South does not guarantee to remain embraced as a legitimate member in the community of national subjects. While the court’s pronouncements regarding the former can be described as progressive, having ruled against the discrimination of ethnic Koreans from China or in favor of extending the right to vote to all nationals living outside the South, except North Koreans and pro- North residents in Japan, constitutional jurisprudence has also contributed to consolidating a number of conservative premises when it comes to defining who belongs or does not belong to the national community. In constructing the status of North Korea and North Koreans, the court has first reinforced the 1948 antagonistic framework embedded in the constitution—an approach to the division whose demise seemed announced by the inter-Korean summit of June 2000. By expanding or restricting the rights of diverse Korean diasporic populations, the institution has then confirmed the validity of differentiating between them for the sake of national security and economic interests. In framing what the “national” is and which individuals are worthy of being protected in its name, the constitutional court has eventually relied on a truncated understanding of history, most notably in relation to the colonial era, as also exemplified by its judgment upholding the constitutionality of the revised ideological conversion policy. In each of the cases examined in this chapter, the efficacy of existing mechanisms of inclusion and exclusion has clearly exceeded countering the threat posed by North Korea, instead displaying a wide range of domestic effects. The fact that South Korea’s politics of enmity is rooted in other processes than the national division, both historically and functionally, could be a source of optimism and skepticism alike: on the one hand, this suggests that the dismantlement of its instruments may not be exclusively premised on the collapse of the North Korean regime, implying that further democratization of the post-authoritarian order could be achieved independently from this prospect; on the other hand, reunification on South Korea’s political and socioeconomic terms would not necessarily ensure a profound and structural renova- tion of its institutions. If greater inclusion in the South’s democratic order is only bound to come from within, the possibility that the constitutional court will resist rather than prompt its advent cannot be easily discounted as long as the consensual structuration of the body politic in terms of “us” (“the true incarnation” of the Korean nation) versus “them” (fellow citizens but “antinational subjects”) remains. 72

CHAPTER SIX Reviewing How the Enemy is Treated: Criminal Rights Even for National Security Offenders

This chapter ventures into a variety of sites where the state’s power to punish operates locally and concretely: in interrogation rooms, police stations, and detention centers. These are the sites where essential aspects of the politics of enmity are effected through the encounter of two unequal parties: state actors—such as investigators from intelligence agencies, police officers, public prosecutors, or prison staff— confronting individuals suspected, accused, or convicted of national security crimes. In a democratic society, a suspect, defendant, or convict remains a person, that is, a subject endowed with rights meant to redress the asymmetry of power that marks the criminal process. Since the early 1990s, the Constitutional Court of Korea has played a critical role in clarifying the criminal rights that apply “even for” or “except in” national security cases. The rulings delivered by the court in this area illustrate the firmness of its activism against abuses of state power, complementing this research’s analysis of the paradoxical way in which the institution has embraced its role as guardian of the constitution since the 1987 change of regime. While constitutional jurisprudence has reinforced the democratic relevance of inherited mechanisms of exclusion such as the National Security Act and the ideological conversion policy, it has also strived to undo a variety of legacies from the past. To understand the conditions and limits of the court’s effort to make the criminal justice system fairer, an overview of law enforcement actors’ post-authoritarian reform—or lack thereof—is provided before analyzing the court’s construction of enemies’ rights as neither inexistent nor unconditional. 120 Regime Transition and the Judicial Politics of Enmity

Law Enforcement Actors under Scrutiny after the Transition to Democracy

The South Korean constitution subordinates the state’s power to punish to the rule of law and respect of due process throughout the criminal justice system. Article 12 further protects the right of habeas corpus (i.e., the right to have the legality of one’s arrest and detention reviewed), the right to counsel, and the right to trial. A cardinal protection enshrined in this provision is also the prohibition against torture, which serves as a buffer between the state’s power and the individual’s body. Under South Korea’s successive authoritarian regimes, physical and psychological mistreatments were part of a quasi-systematic strategy to extract confessions on the basis of which sentences for violating security laws would be pronounced. As a result, the revised South Korean constitution contains detailed provisions about the use of confessions:

In a case where a confession is deemed to have been made against a defendant’s will due to torture, violence, intimation, unduly prolonged arrest, deceit, or etc., or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession.1

In the aftermath of the transition, these lines could not be merely read as a testament to abuses committed by the state and its agents in the past, but they also set a goal to urgently realize. Indeed, political ruptures such as South Korea’s 1987 democratization do not necessarily translate into immediate or momentous institutional change. In many respects, the type of change introduced by the enactment of new constitutional safeguards is only superficial. It does not ensure that further legal reform will automatically ensue, as was, for instance, the case in Italy where “fascist police laws remained on the books until the mid-1950s, effectively obstructing legal popular protest and facilitating a wide range of police interventions.” 2 Even when legal reform takes place, it can prove incomplete and/or insufficient for prompting change. In South Korea, the Criminal Procedure Code was amended as early as 1988 but still contained various legacies from the former regimes whose constitutionality was subsequently challenged before the constitutional court. In addition, the reform of institutional practices is always slow and difficult, a fortiori when they are associated with law enforcement Reviewing How the Enemy is Treated 121 actors both embedded in the old regime’s repressive apparatus and staying in place after the transition, such as South Korea’s main intelligence service. The Agency for National Security Planning (kukka anj ŏ n kihoekpu) was founded in 1981 to replace the Korean Central Intelligence Agency, itself established in 1961 to centralize both domestic and international intelligence activities. 3 In the wake of the 1987 change of regime, the organization was forced to remove its agents from a variety of public facilities, including the National Assembly, the Seoul Criminal Court, and the Supreme Court of Korea. 4 These cos- metic measures have not prevented the security agency from remaining deeply involved in domestic politics following democratization. As pointed out by Jonathan Moran, “the political imperative of controlling the transition in the interests of conservatives led to excessive ANSP [Agency for National Security Planning’s] involvement in the political process,” through initiatives such as collecting political funds in favor of the ruling party in 1987 or heavily intervening in its 1992 presidential candidate selection process by pressuring unfavored aspirants. 5 The security apparatus did not undergo any major transformation until 1994, when the Act on the Agency for National Security Planning (kukka anj ŏ n kihoekpu p ŏ p) was adopted following six years of tensions and negotiations between the government and the opposition. 6 This reform aimed at better containing the agency’s role but was partly reversed as early as 1996. In the interval, the power to investigate crimes falling under the National Security Act’s article 7 (praising or sympathizing with an “antistate organization”) and article 10 (failing to report antistate activities) was briefly withdrawn from the organization’s competences. 7 In 1999, the Agency for National Security Planning became the National Intelligence Service (kukka chŏ ngbow ŏ n). Its functions still include “investigation into the crimes of insurrection and treason under the Criminal Act, crimes of mutiny and illegal code use under the Military Criminal Act, crimes prescribed by the Military Secret Protection Act, and crimes provided for by the National Security Act.” 8 When it comes to other law enforcement actors, the “political impartiality of public officials” has been constitutionally guaranteed since 1960, but post-authoritarian institutions have been seriously criticized for falling short from this ideal. 9 Although the National Police Agency (ky ŏ ngch’alch’ ŏ ng) replaced the mighty National Security Headquarters (ch’ian ponbu) in 1991, the Police Act (ky ŏ ngch’alp ŏ p) failed to realize the new organization’s proper structural autonomy from the Ministry of Interior (naemubu). 10 In addition, the 1990s were characterized by 122 Regime Transition and the Judicial Politics of Enmity

“continuing police corruption and violations of citizens’ civil rights,” leading over half of South Koreans to rank the police as “the most cor- rupted organization” according to a 1999 public opinion survey.11 Serious efforts to improve the image and accountability of the police were only undertaken more than a decade after the change of regime. In 2000, a separate and independent unit, the Office of Hearing and Inspection (ch’ŏ ngmun kamsagwan), was established to investigate citizens’ complaints and reported acts of police misbehavior, implementing a zero-tolerance policy on corruption. 12 Other highly symbolic initiatives were subsequently promoted to enhance public trust in the police, such as the 2005 creation of the Human Rights Committee of the Police (ky ŏ ngch’alch’ ŏ ng inkw ŏ n wiwŏ nhoe) and the Civilian Review Committee (min’gan simŭ i wiwŏ nhoe), respectively to “supervise police work related to human rights, such as arrest and confinement,” and to review “potential misconduct by highly-ranked officers.” 13 Both are advisory bodies lacking investigative capacities of their own. One of the disputed issues around which police reform still gravi- tates concerns the institution’s demand for more autonomy vis-à -vis the prosecution. Since 1954, prosecutors have been legally empowered to investigate crimes by directing the work of the police or conducting their own investigation. This relation of subordination deviates from the US system in which prosecutors can request that a crime be inves- tigated but hold no authority to monitor the investigation. In the civil law tradition to which Korea belongs as a result of its reception during Japanese colonial rule, the criminal justice system is inquisitorial, in contrast to the adversarial system of common law countries. 14 Public prosecutors are thus actively involved in discovering the truth. In most contemporary European countries, however, the judicial investigation is ultimately supervised either by an investigating judge, in charge of looking for all and any evidence (as in France), or by a prosecutor who is absolutely independent (as in Italy). Each of these categories and roles being deeply embedded in socio-historical processes and local configu- rations, the office of prosecutor is not intrinsically synonymous with the lack of judicial independence that accompanies it in the context of South Korea. 15 Prosecutors traditionally occupy a central place in the Korean criminal justice system. 16 Contrary to judges, they are not independent from the executive but placed under the authority of the Ministry of Justice and bound by strict hierarchical ties. 17 As in most civil law countries, prosecutors and judges are nonetheless recruited through the same channel, a national judicial examination (sapŏ p sih ŏ m), whose successful Reviewing How the Enemy is Treated 123 candidates have to attend the Judicial Research and Training Institute (sapŏ p yŏ nsuw ŏ n) run by the Supreme Court of Korea for two years. Until recently, South Korean attorneys were also selected and trained through the same process, although ritually a law student would first pass the judicial exam, serve as a judge or prosecutor, and then turn to private practice as an attorney. 18 Prosecution systems’ historical trajectory weighs heavily on both their institutional structures and personnel’s professional attitudes. In South Korea, law enforcement actors were crucial supports of the repressive colonial and authoritarian orders for most of the twentieth century. Since the democratization process started, the prerogatives of prosecutors have consistently fallen under the scrutiny of the constitutional court, in relation to national security crimes as well as ordinary cases. This visibility of the prosecution in constitutional jurisprudence reflects the ascendancy it enjoyed for decades in the criminal process. The rulings of the court manifest two specific concerns with the strength of prosecutorial powers: preventing their arbitrary use against individual rights and reinforcing the role of independent judges. Several post-1987 provisions of the Criminal Procedure Code still permitted prosecutors’ decisions to prevail over the authority of ordinary tribunals, thereby undermining a number of principles associated with the fairness of criminal justice. Until 1992, for instance, a person proven innocent and set to be released by a first trial court or an appel- late one could still be detained until the supreme court would render its verdict if the prosecution had demanded the death penalty, a life sentence, or a prison sentence of at least ten years. Consequently, “many defendants used to live in captivity until the Supreme Court’s final decision even after they were acquitted or received suspension of punishment in the lower court,” a situation that the Constitutional Court of Korea considered an excessive restriction of freedom. 19 Likewise, prosecutors could immediately challenge a judge’s decision to release an accused on bail until 1993, when the corresponding statute was struck down by constitutional jurisprudence. 20

From Interrogation Rooms, Police Stations, and Prison Cells to the Constitutional Stage

In the aftermath of South Korea’s 1987 regime change, the possibility of resilient abuses of power by law enforcement institutions was regu- larly denounced by the constitutional court, including in relation to 124 Regime Transition and the Judicial Politics of Enmity torture. This risk has not been merely theoretical as illustrated by the 2002 case of a murder suspect tortured to death during his interrogation at the Seoul District Prosecutors’ Office. 21 In 2004, constitutional justices recognized that the threat of human rights being infringed in the criminal process would persist as long as “obtaining the confession of a suspect through interrogation is utilized as an important method of investigation.” 22 The validity of this statement goes beyond the frame in which it was made. Concerns about violence by government officials and the use of confessions are far from being limited to the context of post-1987 South Korea in particular, or transitioning societies in general. Similar issues were, for example, at stake before the U.S. Supreme Court in the 1960s. In its notorious Miranda v. Arizona decision of 1966, the court held that confessions obtained during police interrogation were not admissible in a trial unless the suspect had been “clearly informed” of his right to remain silent and to be assisted by a lawyer.23 This ruling was part of a series of cases mostly decided by the Warren Court—thus named after Chief Justice Earl Warren (1953–1969)—and described as having engendered a “criminal rights revolution” in the American legal system. Change spread in four directions: tightening the rules for police’s search and seizure while defending the rights of criminal defendants, juvenile defendants, and prison inmates.24 Yet, this so-called court-led revolution was not solely the deed of nine justices. The sites that came under the scrutiny of justices were brought before them as a result of strategic litigation, sustained over years by the activism and resources of mobilized civic groups and associations. 25 In South Korea, cases emanating from interrogation rooms, police stations, and prison facilities have also reached the constitutional court since it began to operate in the late 1980s. As described in Chapter Two , the main channel for cases to be filed with the Constitutional Court of Korea consists of constitutional complaints, enabling anyone who claims that his or her basic right has been infringed by an exercise or non-exercise of state power to directly petition the institution. The workings of this mechanism, however, were only progressively elaborated, demonstrating that institutional design rarely proceeds through a straightforward path laid out in advance, once and for all. 26 Practically, a constitutional complaint can be filed and deposited at the Constitutional Court of Korea’s Public Service Center (minwŏ nsil)— where request forms are available and staff assistance is provided—or online since 2002. The relative simplicity of the filing process is part Reviewing How the Enemy is Treated 125 of the court’s continuous effort to make constitutional justice more accessible. This commitment is also reflected in the institution’s expansive construction of the justiciable interests admissible for constitutional complaints. The opening section of the court’s rulings is always dedicated to reviewing whether a given case’s legal prerequisites are fulfilled, which includes confirming the existence of a justiciable interest. An important dimension of this phase is to check that the petitioner “directly” and “presently” suffers an infringement of one of his or her basic rights guaranteed by the constitution. Since the early 1990s, the court has considered it possible to review the constitutionality of a situation that no longer exists, provided that the issue raised by the complaint is critical for the defense and maintenance of the constitutional order while the alleged violation is likely to recur. Such a position was first articulated in a 1991 minority opinion written by Justices Cho Kyu-kwang, president of the constitutional court at the time, and Byun Jeong-soo, the judge in favor of declaring article 7 of the National Security Act unconstitutional a year before. The case in which they dissented together was triggered by the constitutional petition of three suspects detained in police custody for violating the National Security Act. 27 Their complaint was filed on the ground that investigators from the judicial police and the Agency for National Security Planning, in charge of investigating crimes falling under the security legislation, had prevented them from meeting with a lawyer. A majority of justices dismissed the request, arguing that the right of a suspect or defendant held in custody to meet with his attorney was not a proper subject matter for constitutional review. President Cho and Justice Byun, on the contrary, affirmed that the right at stake was constitutionally protected. Moreover, they defended that the case should be reviewed even if the infringement of the right to counsel had ceased given the significance of clarifying its scope and the “danger that its violation would be repeated (panbok wihŏ msŏ ng).” 28 The arguments then put forth by the minority to examine past abuses have since become the standard justification used by the court to adjudicate complaints challenging violations of basic rights committed in police stations, interrogation rooms, or penitentiaries, but only reported after the concerned individuals were no longer detained. Early on, the court thus adopted a broad conception of constitutional complaints’ justiciable interests, thereby contributing to the accessibil- ity of constitutional justice in post-authoritarian South Korea. The institution further pursued this purpose by progressively extending the 126 Regime Transition and the Judicial Politics of Enmity scope of what could qualify as “an exercise or non-exercise of governmental power.” While judgments rendered by ordinary tribunals are statutorily excluded from this scope, the court has included in it a variety of executive or administrative decisions and behaviors, as surveyed in Chapter Two. In 1992, the court considered a proper subject matter the conduct of six officers from the Agency for National Security Planning who attended a visit between a suspect and his attorney, an issue that had been dismissed a few months earlier.29 This 1992 ruling is both a generative and illustrative case, highlighting the contours and limits of the rights recognized by the Constitutional Court of Korea to suspected, accused, or convicted antistate criminals.

Contours and Limits of Enemies’ Criminal Rights

On June 14, 1991, a suspect arrested for having allegedly violated the National Security Act received a one-hour visit from his wife and attorney in the police station where he was detained. The meeting was attended by six agents from the Agency for National Security Planning, who not only listened to the conversation but also took notes and pic- tures during the exchange. The lawyer objected to their conduct and demanded that the visit stopped being attended and recorded, a request to which investigators responded that he and his client should feel free to talk as much as they wanted. Upon being released, the former suspect filed a constitutional complaint on the ground that the agents’ behavior had infringed on his right to be assisted by counsel, which is protected by article 12, section 4, of the South Korean constitution. His case was brought and defended before the Constitutional Court of Korea by attorneys from Minbyun, 30 including one of its founders and secretary-general at the time, Lee Seok-tae (Yi S ŏ kt’ae). 31 A few months later, the constitutional court rendered a decision considered a landmark of its jurisprudence on the protection of citizens’ criminal rights. Contrary to their majority verdict in the 1991 ruling, all nine justices agreed that the issue raised in this case was constitutionally significant and that the petition could be reviewed. Although the right allegedly violated was no longer being infringed, the court derived the existence of an “objective justiciable interest” from the risk that the violation be repeated and the importance of clarifying the right to counsel for the constitutional order. Judging on the merits, the court unanimously held that the presence of investigators from the Agency for National Security Planning, or any other “government agent Reviewing How the Enemy is Treated 127

(kongmuw ŏ n),” at a meeting taking place between a lawyer and his or her detained client was an unconstitutional exercise of state power.

The right to assistance of counsel guaranteed by Article 12 Section 4 is intended to protect the suspects and defendants, presumed innocent, from various evils (p’yehae) arising out of the fact of incarceration and to make sure that the incarceration does not exceed the scope of its purposes. Therefore, assistance of counsel means sufficient assistance. The indispensable content of [the] right to assistance of counsel is the detainee’s right to commu- nicate and visit with his attorney. In order to provide sufficient guarantee of that right, the confidentiality of the contents of the conversations must be completely protected, and the detainee and attorney must be allowed to freely converse with each other free of any limitation, influence, coercion, undue interference. Such free visit will be possible only when it takes place outside the presence of a correction officer, an investigator, or any concerned government agent. 32

The court momentously concluded from this reasoning that national security could not be invoked to restrict the right of a suspect or defendant held in custody to freely meet with his or her lawyer: “This right . . . is the most important part of a detainee’s right to assistance of counsel and cannot be restricted even for reason of national security, maintenance of order or public welfare.” 33 In the ten-page long Korean version of the ruling, the above fragment appeared twice.34 No other mention of national security was made throughout the text, except when the judgment referred to the Agency for National Security Planning, the respondent in this case (seven mentions), and the National Security Act, for the alleged violation of which the petitioner was held in custody (two mentions). The above conclusion therefore masks the fact that national security was only marginally evoked in the decision, even though the case stemmed from a complaint by a former suspect detained under the security legislation. In other words, the ruling did not primarily rest on balancing the constitutional interest in protecting national security versus the right to counsel. The two were not explicitly weighed against each other as the former was largely ignored throughout the judgment. This avoidance led to the creation of a paradoxical legal stage, on which a national security issue was extracted from its original context to be considered in a more neutral light. 128 Regime Transition and the Judicial Politics of Enmity

National Security Left in the Background The Constitutional Court of Korea’s 1992 decision announced that national security considerations could no longer systematically or automatically outweigh individual basic rights. The significance of this case for suspected enemies, however, was not the one upon which the constitutional court insisted. Its ruling’s scope was more inclusive, encompassing all criminal suspects and defendants as the judgment’s targeted beneficiaries. National security was only dealt with incidentally, as illustrated by the extreme infrequency of the term’s mention in the decision. The perspective embraced by the court was that of the fairness of criminal justice in general, and not the rights of potential antistate enemies in particular. In essence, constitutional justices considered national security irrelevant to the issue of whether suspects and defendants could meet with their attorney free of governmental interference. Such a position could be seen in itself as a strong message sent by the court to law enforcement actors, disavowing their assumption that investigating antistate activities mechanically authorized departing from due process rules. More importantly, removing the decision from the ground of a debate about enemies’ rights enabled the constitutional court to frame its intervention in a less polemical way and thus push for the necessary post-authoritarian reform of the criminal justice system. It should be emphasized that a given legal question’s controversiality does not stem from any quality that would be intrinsically attached to it. When it comes to dealing with enemies, procedural matters are not onto- logically more consensual, or less contentious, than other legal issues. For instance, the Guantá namo cases adjudicated by the U.S. Supreme Court between 2004 and 2008 were part of a deep struggle between the court and the political branches, within the judiciary, as well as in American society more broadly (or at least its academic and intellectual circles) over the scope of the habeas corpus rights available to “enemy combatants” detained in the camp. The issue of the legal treatment due to national security suspects and offenders is a priori no less disputed in South Korea. Consequently, the advances promoted by the constitutional court against the legal framework and practices of law enforcement actors in the 1990s were facilitated by the fact that they were not claimed from the viewpoint of enemies’ rights. As argued by the court to justify its ruling on the right to counsel, “our practices, laws, and rules concerning investigation and execution of punishment have not reflected properly the constitutional ideals in criminal procedures,” thereby reasoning from the standpoint of criminal justice’s overall fairness.35 Reviewing How the Enemy is Treated 129

The context in which the Constitutional Court of Korea upheld a number of procedural safeguards even for suspected antistate criminals differs from the situation of courts in democratic societies where a debate about the extent of enemies’ rights arises while a well- established criminal justice system, with effective guarantees, is already in place. In post-1987 South Korea, this configuration was somewhat reverse. The point of departure of the court was precisely to assume that derogations from due process principles were the rule rather than the exception across the entire criminal justice system, and not only as far as antistate criminals were concerned. This approach was probably less a subterfuge than the result of a genuine prioritization of interests on the part of the court. In the aftermath of the transition, distortions and abuses of state power were indeed prevalent in criminal justice. Moreover, building a fair system was a horizon susceptible of rallying support, within and outside the court. The assertiveness of the Constitutional Court of Korea can therefore be described as a movement to bridge the gap between constitutional ideals and criminal justice realities—one around which a variety of legal interests could coalesce. As a result, it should come as no surprise that the court was able to act early on, capi- talizing on an opportunity activated by constitutional litigation from below, especially under the pressure of actors such as Minbyun. By framing cases on enemies’ rights from the perspective of the overall fairness of criminal justice, and not national security, these lawyers succeeded in putting the arguments of law enforcement actors at a plain disadvantage—a strategy also embraced by the Constitutional Court of Korea. Concerns such as investigative efficiency, however, were never dis- carded by the constitutional court and have since been recognized as justifying possible restrictions on rights when necessary. The court has made clear that the demonstration of this necessity creates a burden of proof falling on law enforcement institutions, and not suspects or defendants. For instance, its jurisprudence determined in 1997 that the right to access one’s criminal records (which usually include interrogation transcripts, witnesses’ affidavits, and a suspect’s confession) could be restricted if there was “a danger of leakage of national security secrets, tampering of evidence and witnesses, breach of privacy, or any hindrance to the investigation.” 36 Yet, the cour t prescribed that such risks had to be established by public authorities. In the national security case under review, a majority of justices held unconstitutional the decision of the prosecutor to limit access to the 130 Regime Transition and the Judicial Politics of Enmity defendant’s criminal records because the motivations for his refusal had not been exposed. The decision on the right to access criminal records was an important ruling against prosecutors’ discretion on another account. The court considered in it that constitutional complaints were likely to be the only available effective remedy against prosecutorial actions, thereby upholding a major exception to the requirement that all prior processes be exhausted before a complaint could be accepted. 37 A similar exception to the requirement that prior remedies be exhausted can be found in a 1999 decision on the wearing of prison uniforms by defendants during interrogation and trial. In this case, the court deemed likely that the existence of a justiciable interest would be denied through administrative review, once more singling out the mechanism of direct constitutional complaints as the only effective legal avenue for relief. 38 One of the two petitioners in the prison uniform case was Suh Jun- sik, an ethnic Korean from Japan, well-known to human rights organizations since the 1970s as evoked in Chapter Five . Their reports have to be relied upon to reconstruct the circumstances behind this affair given constitutional jurisprudence’s parsimonious account of background facts. In the early 1970s, Suh was arrested for espionage and adopted as prisoner of conscience by Amnesty International. Despite having spent 17 years behind bars, Suh continued to promote human rights in South Korea after he was released from jail in 1988. Nine years later, he was arrested under article 7 of the National Security Act for having organized a human rights film festival during which alleged “enemy benefiting” materials were screened. According to a brief published by Amnesty International following his 1997 arrest,

The main charges against Suh Jun-sik relate to a human rights film festival organized by Sarangbang human rights group, of which he is the director. The organization had refused to allow government censorship of the films shown and the authorities declared that the screening of one film, “Red Hunt,” constituted a violation of the National Security Law. This documentary film, about mass kill- ings on Cheju Island in 1948, had been shown to at least one other festival without the organizers facing prosecution. Other charges against Suh Jun-sik include the possession of poetry books alleged to “benefit” North Korea and failing to report to the police about his overseas trips, including a visit to the International Secretariat of Amnesty International in May 1997. 39 Reviewing How the Enemy is Treated 131

In this context, the paradox of the case involving Suh Jun-sik and the wearing of prison uniforms was precisely that its national security dimension became completely overshadowed in the constitutional judgment. This could in part be attributed to the fact that the requirement to wear prison uniform during investigation, trial, and confinement applied to all detained defendants, although theoretically presumed innocent. Still, the court did not accord any special or separate consideration to individuals accused under the security legislation, implicitly considering the human dignity of potential enemies as equally worthy of being protected as that of other alleged offenders. 40 From the viewpoint of realizing a fair criminal justice system, protecting the rights of criminal defendants is not the only necessity. Another important dimension of promoting greater impartiality in proceedings has implied for the South Korean constitutional court to check the scope of prosecutorial powers. Since the late 1980s, the court has deemed unconstitutional a number of prerogatives granted to the prosecution at the expense of independent judges, such as the prece- dence given to a prosecutor’s decision to detain over a judge’s decision to release as discussed in the beginning of this chapter. Some of the invalidated measures favoring the prosecution unmistakably plunged their roots in authoritarian attempts at distorting criminal justice. For instance, the pretrial witness examination scheme (allowing a witness for the prosecution to be examined before the opening of a trial, therefore precluding the opportunity of cross-examination by the defense) was adopted in January 1973, in the aftermath of Park Chung-hee’s regime radicalization following the implementation of the Yusin constitution. In 1996, the constitutional court invalidated this practice on the ground that “it merely facilitates investigative activities of the state.” 41 The same year, constitutional justices reviewed another legacy from the Yusin period, the Act on the Special Measures for the Punishment of Persons Involved in Anti-State Activities (pan’gukka haengwija ŭ i ch’ ŏ bŏ l e kwanhan t ŭ kpy ŏ lpŏ p). This law permitted to hold a trial in the absence of the accused, while his attorney was not authorized to participate in the proceedings and the court could only pronounce itself on the basis of the facts and arguments stated by the prosecution. Although designed and solely used against Kim Hy ŏ ng-uk (Kim Hy ŏ nguk), a former director of the Korean Central Intelligence Agency who had publicly criticized Park Chung-hee before vanishing in 1975, this piece of legislation was struck down by the constitutional court 132 Regime Transition and the Judicial Politics of Enmity on the basis that it generally “contravened due process of law and the right to trial.” 42 It should not be inferred from these decisions that issues about the past and its “liquidation” have not been a source of contention in the Constitutional Court of Korea. On the contrary, such questions have fueled intense disputes both within and outside the court as analyzed in Chapter Three . If the legal consensus that prevailed in the 1990s over the necessity to improve the criminal justice system did contribute to undoing many legacies from the authoritarian years, this outcome was not achieved in the name of putting the past on trial, which has been and remains largely controversial.

Consistent Alignment between the Constitutional and Supreme Courts One indicator that various legal interests converged over promoting the fairness of criminal justice in the post-authoritarian era lies in the fact that the constitutional court did not act on its own but in alliance with the Supreme Court of Korea. Their jurisprudential alignment appears all the more worthy of attention since the two courts were opposed by a sustained dispute over the preeminence of their rulings throughout the 1990s, with the supreme court resisting to abide by decisions of limited constitutionality until the end of that decade, as detailed in Chapter Four . When it comes to examining the practices of law enforcement institutions, a jurisdictional conflict could have divided both institutions, since the supreme court initially “insisted that it had the ultimate authority to review the constitutionality of rules and regulations.” 43 By contrast, the constitutional court held firm onto its assertion that constitutional complaints provided the only effective remedy against law enforcement actors’ decisions and behaviors, even when other review processes were supposedly available. Despite these initial skirmishes, the constitutional and supreme courts largely converged on the issue of criminal rights’ scope and content as similar procedural matters were dealt with by their jurisprudences. For instance, as early as 1990 did the Supreme Court of Korea rule on the inadmissibility of the statements made by a national security suspect not allowed to consult with his attorney, a decision aimed at “curbing the police’s prevalent, illegal practice of not permitting communication with counsel.” 44 In 1992, the court further held that “statements elicited without informing [a suspect] of the right to silence in interrogation are illegally obtained evidence, and so should be excluded, even if they are disclosed voluntarily.” 45 The supreme court’s early 1990s Reviewing How the Enemy is Treated 133 criminal jurisprudence clearly went against the grain of its traditional role. Indeed, the institution was particularly known for its conservatism under the authoritarian years. On the eve of the transition, the high court still seemed inclined to exculpate any use of violence and brutality by the police in the course of interrogation. In a 1987 suit filed against seven policemen accused of having beaten and illegally detained an innocent citizen, the supreme court determined that law enforcement actors were expected to respect human rights, but that the incriminated officers should be acquitted for abuses committed out of their “devotion” to serving the state. 46 The court’s radical change of mindset between this decision and the rulings that it rendered in the early 1990s in favor of strengthening criminal rights can be attributed to the judiciary’s move toward greater independence after the regime change. This transformation was largely prompted from within, with one-third of South Korean judges demanding in June 1988 the resignation of then Chief Justice Kim Yong-ch’ol (Kim Yongch’ol), tainted by his support for the old regime. 47

Two weeks after the chief justice resigned in disgrace, the two major opposition parties abstained from the National Assembly vote to confirm Roh [Tae-woo]’s first choice for the vacancy, thereby causing the nomination to fail. This action resulted in the nomination of Yi Il-kyu [Yi Ilkyu], a more independent-minded figure known for not bending to political pressure. A Supreme Court justice during the Chun presidency—until his appointment was not renewed in 1986—Yi had won wide public respect for overturning lower court rulings in political cases. Yi’s appointment as chief justice led to the National Assembly approval of thirteen new Supreme Court justices and a major reshuffle of the judiciary in July that affected some thirty-five senior District Court and High Court judges. 48

Under this new leadership, the supreme court became a proactive element of the “criminal rights revolution” in which various South Korean legal actors joined forces to advance the fairness of criminal justice, plagued by systematic distortions of the rule of law and due process principles. In theory at least, national security suspects and defendants benefited from this mobilization, often being the source of litigation while receding in rulings from the focus of lawyers’ and 134 Regime Transition and the Judicial Politics of Enmity judges’ argumentation. As contended by the present research, this marginalization of criminal rights’ national security dimension enabled change to be jurisprudentially set in motion. Conversely, both the supreme and constitutional courts have proved extremely cautious on questions restricted to antistate crimes and enemies, with the former showing itself more conservative than the latter as discussed in Chapter Four . Cases openly raising a national security issue indissoluble into the general reform of South Korea’s criminal system have therefore made constitutional activism more difficult, either not pursued by a majority of justices or negatively responded to by the supreme court. Overall, the courts’ commitment to improving the criminal process did not mean that all remnants of the pre-1987 system were censored, nor that renovating them could always be framed in a noncontroversial way. Protecting criminal rights has thus represented an important, yet limited, challenge to some of the most conspicuous legacies of authoritarianism. In addition, the constitutional and supreme courts’ attempt to bring about change met several constraints, such as the adverse reaction their rulings ignited from law enforcement institutions.

Boundaries of Institutional Compliance: Law Enforcement Actors’ Resistance to Judicial Verdicts The 1992 decision on the right to counsel did not merely declare unconstitutional the behavior of the Agency for National Security Planning’s investigators who had attended a meeting between a detained national security suspect and his attorney. The ruling also struck down a provision of the Criminal Administration Act (haenghy ŏ ngpŏ p) permitting that a correction officer be present during visits received by detainees pending trial or appeal. The provision was eventually revised by the National Assembly, but only three years after the court’s ruling was pronounced and on a minimal basis. 49 Yet, both the constitutional judgment and delayed legislative revision have failed to put a close to the issue of defining the right to counsel. Neither of them was interpreted by law enforcement actors as implying that lawyers were authorized to participate in interrogation, an assistance they continued to deny to South Korean suspects until the early 2000s. The momentum for reform only built after the 2002 revelation that a murder suspect had been tortured to death at the Seoul District Prosecutors’ Office, as evoked earlier in this chapter. In the wake of the “incident,” the Ministry of Justice introduced new regulations allowing counsel’s participation during interrogation, while providing Reviewing How the Enemy is Treated 135 for many exceptions under which assistance could be refused. Among them were cases involving alleged offenses against the National Security Act, until the Supreme Court of Korea determined otherwise in 2003. Although the supreme court then recognized that the right to have a lawyer present during interrogation was nowhere to be explicitly found in the constitution or in the Criminal Procedure Code, it concluded that “participation should be allowed from the standpoint of ‘due process’ principles.”50 In addition, the high court defined more narrowly than the Ministry of Justice the exceptional circumstances under which counsel’s participation could be prohibited, holding that restrictions should be possible only “when there is probable cause that the counsel would ‘obstruct interrogation’ or ‘leak the secret of investigation.’” 51 According to Cho Kuk, this 2003 decision finally implemented the South Korean version of Miranda, the 1966 ruling considered a landmark of the US “criminal rights revolution.” Let us recall that the U.S. Supreme Court determined in Miranda that statements made without the person under arrest having been informed of his or her rights to remain silent and be assisted by a lawyer could not be used as evidence in a trial, in virtue of the Fifth Amendment’s prescription that no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” 52 While the South Korean constitution provides that statements obtained through “torture, violence, intimidation, unduly prolonged arrest, deceit, or etc.” are inadmissible, the supreme court added that such statements cannot be taken into account if a defendant has not been informed of his right to remain silent (1992) and to have an attorney present during interrogation (2003). The constitutional court also reaffirmed the right to assistance of counsel free of governmental interference both in 1992 and 2004 as analyzed in the next section. 53 Resistance by law enforcement institutions to put into effect these safeguards, theoretically guaranteed even in national security cases, has represented a major and enduring impediment to the supreme and constitutional courts’ post-authoritarian effort to reform criminal justice. Far from being specific to the South Korean case, similar hurdles were met by the U.S. Supreme Court’s rulings in favor of fostering the rights of suspects, defendants, and convicts throughout the criminal process. Such an outcome has led Gerald Rosenberg to pessimistically conclude that the court’s initiatives were deeply impaired by the fact that “organizations, be they prison systems, police departments, or lower courts, are often unwilling to change.” 54 Rosenberg’s analysis thus uncovers a fundamental obstacle to the effectiveness of judicial intervention: the 136 Regime Transition and the Judicial Politics of Enmity risk that judgments be defeated by institutional inertia, even when they are not opposed by the political branches. In South Korea, many of the criminal reforms advocated by the supreme and constitutional courts in the 1990s came late or partially. Only during the following decade did the executive and legislature take an active stance toward better protecting individual rights and renovating the criminal process. For instance, the National Human Rights Commission was created in 2001 upon the United Nations’ recommendation and empowered to conduct field investigations in correction and detention facilities. The years under the Roh Moo- hyun administration between 2003 and 2008 also saw a proliferation of committees aimed at stimulating a broad transformation of the law enforcement apparatus: a committee dedicated to police reform under the Korean National Police Agency was established in 2003; to judicial reform under the Supreme Court of Korea in 2003, before a presidential task force organization took over in 2004; to adjusting the distribution of investigative powers between the prosecution and judicial police under the Supreme Prosecutors’ Office and the National Police Agency in 2004; and to human rights respect under the Supreme Prosecutors’ Office in 2004. 55 A number of measures were consequently introduced, such as video recording interrogations to implement a check on prosecutors’ use of their powers, reflecting ongoing concerns for human rights violations in the different places where the state’s power to punish operates secludedly. These concerns about abuses committed in interrogation rooms and prison cells still permeated the decisions rendered by the Constitutional Court of Korea in the 2000s. Yet, recent constitutional jurisprudence also highlights that the court’s effort to regulate the means deployed against alleged offenders has been limited in another important way than as a result of law enforcement institutions’ discretion. Even rulings protecting and defining criminal rights expansively can indeed be said to construct them as never being absolute, a conditionality that is part of constitutional justice’s order of discourse on basic rights in general.

Boundaries of Constitutional Discursivity: Basic Rights’ Conditionality In 1992, the constitutional court upheld the right to assistance of counsel for any suspect or defendant held in custody, regardless of whether national security reasons could be invoked by the investigating authorities. In 2004, justices were presented with the issue to determine whether Reviewing How the Enemy is Treated 137 this right also applied to suspects or defendants interrogated without being detained. A majority of six justices answered this question in the affirmative. 56 While extending the reach of the right to counsel, this ruling nonetheless made clear that the court had no intention to consecrate this right as unlimited. This apparent self-restraint should come as no surprise for it illustrates the absence of rights’ absolutism that represents a fundamental characteristic and invariant of constitutional discourse, no matter the type of decisions rendered. In other words, even rulings regarded as progressive jurisprudential landmarks—that is, as strengthening criminal rights even in national security cases as far as this chapter is concerned—operate within this discursive order by accepting the premise that basic rights are not unlimited and can always be restricted, provided that their curtailment is reasonable and justified. In its 1992 and 2004 jurisprudence on the right to counsel, the Constitutional Court of Korea essentially argued that the subsumption of a case under the category of antistate crime did not justify restricting legal assistance and preventing an attorney from participating in the interrogation process. The court, however, never reasoned that enemies were strictly entitled to the same due process rights as ordinary suspects—which they are not under the National Security Act. 57 Moreover, its 2004 decision recognized the possibility of restricting the right to counsel following the standard defined by the Supreme Court of Korea, according to which assistance is always permitted unless “it obstructs the suspect[’s] interrogation or divulges the investigatory secrets.” 58 This conclusion cannot be considered as the “repressive” corrective of the constitutional court’s initial 1992 decision since both judgments firmly contributed to advancing the criminal rights of suspects under interrogation. Still, the two rulings also exemplify that basic rights are never conceived as absolute by constitutional jurisprudence, even when it brings about progressive outcomes. Although the conditions under which rights may be curtailed are not always explicitly stated, the possibility of such curtailment is embedded in constitutional discourse. This element of shared discursivity among rulings does not entail that there cannot be jurisprudential disagreements about the scope of fundamental rights, but it shifts the locus of where such disagreements occur. While basic rights are never considered as unlimited, divergences are likely to arise regarding whether or not the concrete restrictions imposed on them are legitimate and reasonable. Two methods of legal reasoning can be mobilized by courts to formulate standards on the basis of which basic rights may be restricted: 138 Regime Transition and the Judicial Politics of Enmity the determination of an exception to a rule (a method generally adopted by the U.S. Supreme Court), or the balancing between conflicting constitutional interests (a method prominently used by the German constitutional court, the Israeli supreme court, or the European Court of Human Rights). 59 As the Constitutional Court of Korea selectively bor- rows from different legal traditions (especially from both the European model, after which it was shaped, and the influential American doctrine), it has alternatively resorted to both methods, although it now defines the application of balancing—through the “proportionality test”—as a source of greater legal rigor. 60 In the 2004 case on the right to counsel outside custody, the majority defended the possibility of its curtailment based on a rule and exception to the rule mode of reasoning characteristic of US jurisprudence: the right to be assisted by an attorney is always guaranteed except when there is a risk of “unlawful assistance” (obstruction of the interrogation, divulgation of investigatory secrets, etc.).61 In contrast, two dissenting judges framed their argument in terms of balancing. Justices Song In-jun (Song Injun) and Choo Sun-hoe, two former prosecutors, denied that the right to have an attorney participate in the interrogation process of a suspect not in custody was a legitimate and proportionate measure in light of the public interests it might hurt—“caus[ing] difficulty for the investigative authority in obtaining the confession from the suspect, hindrance with the investigatory activities by the attorney beyond defense activities, or hardship in maintaining investigatory secrets demanded for the purpose of the investigation due to the expo- sure of the investigation.”62 To be sure, each mode of reasoning (the formulation of an exception to the rule on the one hand, and the balancing of conflicting interests on the other hand) can accommodate any type of jurisprudential argument, either progressive or conservative. Despite their distinctive features, both techniques share the premise that basic rights are not unlimited and provide methods to assess existing restrictions, or to formulate permissible ones. In the recent jurisprudence of the Constitutional Court of Korea, proportionality and excessiveness have imposed themselves as favored criteria to control the practices of law enforcement actors. In this respect, the activism of the constitutional court was not limited to its first years of adjudication. With the coming of the 2000s, new sites have been brought to the court’s attention, up to the lavatories of police detention facilities whose “open structure” was unanimously deemed incompatible with human dignity in 2001.63 In most cases, however, constitutional jurisprudence appears to have Reviewing How the Enemy is Treated 139 displaced the ground of its criticisms compared with rulings from the 1990s, now reviewing whether the incriminated behaviors were excessive in the specific circumstances of the case at hand rather than in the abstract. This “tailored” reasoning has permitted the court to maintain a firm stance against law enforcement institutions’ wrongdoings, while also limiting the scope of its decisions. Such an approach thus represents a strategic resource for, as well as limit to, the court’s continued struggle against abuses of the state’s power to punish, only entailing a form of narrow contestation of the policies and means used to deal with alleged or convicted criminals. This technique was, for example, deployed in constitutional rulings involving corporeal intrusions by the police (through bodily search), public prosecutors (using physical restraints during interrogation), as well as prison wardens (resorting to physical restraints in detention). All of these practices were found unconstitutional on the ground that petitioners’ basic rights had been excessively restricted in the instance before the court, but in this instance only. In the police search case, the complainants were two women subjected to a comprehensive bodily search by a female officer, during which they had to pull their clothes and underwear up to their arm- pits and down to their knees, while repeating the process of squatting down and standing up three times. Although the court recognized that so detailed a bodily search could be allowed “when it is likely that the inmate would hide and carry dangerous materials such as deadly weapons or other disallowed goods in their inner body,” it held that conducting such a procedure was not justified in the particular circumstances of the case as it only “damaged the sense of honor and self-respect of the complainants.” 64 Similarly, the court reviewed the constitutionality of using physical restraints by prison wardens on inmates and by prosecutors on suspects during interrogation in 2003 and 2005. While employing devices such as binding ropes and handcuffs was recognized as having a legitimate purpose and being an appropriate means to prevent flight, violence, or suicide, their use was not found constitutional in the specific context of the two complaints. The first request came from an inmate detained at Kwangju Prison and maintained under constant handcuffing for more than a year, thereby having been hampered from “perform[ing] daily life in a normal fashion, as the complainant was forced to eat, excrete, and sleep under such state.” 65 As a result of its excessive nature, the prolonged and unchecked act of the prison warden was unanimously deemed a violation of the petitioner’s human dignity by the constitutional court.66 In 140 Regime Transition and the Judicial Politics of Enmity

2005, constitutional justices reviewed the petition of a “sociology professor residing in Germany” and arrested for violation of the National Security Act upon his return to South Korea in 2003. 67 Although the name of the complainant was made anonymous, it is not difficult to identify Song O Yul ( ꭖጚ냝 ) as being Song Du-yul (Song Tuyul) due to the international mobilization prompted by his arrest and trial. As customary in its jurisprudence, the court appeared little concerned with the facts not directly relevant to the matter of review, leaving unmentioned the national security charges raised against Song that have to be reconstituted from other sources. 68 Instead, the court concentrated its attention on the conditions of Song’s interrogations at the Seoul District Prosecutors’ Office, where his body was constantly restrained by handcuffs and ropes during each episode of questioning. On the one hand, the court did not contest that the use of physical restraints could be authorized when necessary to counter a “clear and concrete risk of flight, violence, disturbance, self-injury or suicide” while, on the other hand, a majority of justices found that these imperative conditions were not met in the case at hand. 69 As these three cases exemplify, the “tailored” approach embraced by the court in recent jurisprudence has led its verdicts to sanction specific abuses of power by law enforcement institutions while reconfirming the general possibility of intrusively searching and imposing restraints on the body of suspects, defendants, and convicts. Recognizing the legitimacy of a given practice while controlling the adequacy of its use in light of each case’s particular circumstances therefore represents both an instrument and a constraint for the Constitutional Court of Korea’s intervention. The court is far from being the only institution faced with this apparent contradiction. The Supreme Court of Israel or the European Court of Human Rights also derive a lot of argumentative strength from grounding their progressive rulings in a similar case-by- case or narrow control of excessiveness, while leaving the validity of general policy choices intact. 70 No matter the type of reasoning that legal institutions privilege, the absence of rights’ absolutism—or the postulate that basic rights are not unlimited—remains a discursive premise that their decisions share. Although rights can always be restricted, an additional source of jurisprudential concord rests on the agreement that limitations are only permissible if necessary. Since the late 1980s, necessity has been narrowly defined by South Korean constitutional justice. It no longer corresponds to the broad national security exception once invoked by law enforcement actors to treat suspected, accused, or convicted enemies at Reviewing How the Enemy is Treated 141 will, even in the aftermath of the transition to democracy. What the Constitutional Court of Korea has done in relation to criminal rights fully illustrates the paradox in which the institution has been caught in playing its role as guardian of the constitution. While the court has reinforced the relevance and validity of mechanisms of exclusion such as the National Security Act and the ideological conversion system, its decisions have also tried to undo a variety of authoritarian legacies and arbitrary practices exposing individuals to abusive uses of state power in national security cases. These two dimensions of constitutional jurisprudence do not contradict each other. Indeed, the constitutional court’s effort to subject the politics of enmity to the requisites of the rule of law has fundamentally contributed to ensuring the former’s compatibility with the post-1987 democratic order. CHAPTER SEVEN Reviewing the Exigencies of National Defense : Citizens’ War-Related Rights and Duties

Some constitutions’ pacifist vocation is reinforced by an express renouncement to maintaining a standing army, like in Japan’s 1947 text or Costa Rica’s 1949 document. 1 By contrast, South Korea’s principled commitment to preserving peace does not obstruct its constitutional readiness for war. This chapter analyzes the role of the Constitutional Court of Korea in cases calling into question the exigencies of national defense. The dispute over the “national,” which constitutes the subtext of the court’s intervention, has led various South Korean military initiatives to be constitutionally contested on the ground that they represented aggressive and unfavorable behavior toward North Korea and the perspective of reunification. While these issues reflect that constitutional adjudication has been increasingly invested as a site of political contention, they also highlight how the court has prevented a dispute about competing national imaginaries from unfolding on its stage. Indeed, the court has either refused to recognize as justiciable the claims advanced by litigants in military cases or censored challenges to the compulsory conscription system, thereby reinforcing the prescrip- tive distribution of roles that the duty of national defense assigns to citizens in contemporary South Korean democracy.

The Constitutional Possibility of War and Peace

National defense is defined by the Constitution of the Republic of Korea both as a “sacred mission” entrusted to the armed forces (article 144 Regime Transition and the Judicial Politics of Enmity

5) and a fundamental duty that falls to all citizens (article 39). Article 39 is considered to provide the ground for mandatory military service, which all South Korean males have to perform between 20 and 30 years of age. South Korea’s active military forces number more than six hundred thousand soldiers, making it one of the largest armies in the world. 2 As discussed in Chapter Two, war powers are principally vested in the president, the commander-in-chief of the armed forces, who can “declare war and conclude peace” (article 73). The National Assembly is nonetheless endowed with “the right to consent to the declaration of war, the dispatch of armed forces to foreign states, or the stationing of alien forces in the territory of the Republic of Korea” (article 60, section 2). South Korea’s security is closely connected to its military alliance with the United States, dating from the aftermath of World War II and fortified in the wake of the Korean War (1950– 1953). Since the armistice ending this conflict was signed, American troops have remained stationed in the southern half of the peninsula. In return, South Korea assisted the United States in most of the theaters where its army was deployed, prominently in Vietnam between 1964 and 1973 (where more than three hundred thousand South Korean soldiers served), and in Iraq from 2003 to 2008 (where approximately twenty thousand troops were sent). 3 The plurality of values present in the constitution, including its ambivalence between the language of war and peace, has fueled various challenges to South Korea’s military policies before the constitutional court. On several occasions, petitioners argued that some of the state’s choices—such as participating in the war in Iraq in 2004 or conducting joint military exercises with the United States—frustrated its engagement to “contribute to lasting world peace” (preamble) and to “renounce all aggressive wars” (article 5), as well as contradicted the constitutional responsibility to “formulate and carry out a policy of peaceful unification” in the peninsula (article 4). The validity of South Korea’s defense policy has also been questioned in terms of its compatibility with basic rights such as freedom of conscience (article 19), the right to happiness (article 10), or the right to live peacefully, a right that is still under debate. Contrary to the German basic law, the South Korean constitution does not acknowledge the right to conscientious objection. 4 Those who refuse to serve in the military following the dictates of “the powerful and earnest voice of one’s heart” (as conscience is described by the Constitutional Court of Korea) expose themselves to imprisonment for up to three years. In practice, hundreds of young men are annually Reviewing Exigencies of National Defense 145 condemned to spend 18 months behind bars for declining to enlist— the vast majority of them being Jehovah’s Witnesses—while a minority of privileged ones goes unpunished for dodging the draft. Both issues were addressed by the court in decisions that demonstrate how the burden of national defense, being embedded in dynamics proper to South Korean society, carries meaning independently from the division. Although the peninsula technically remains in a state of war since no peace treaty was concluded in 1953, this situation is far from being the only relevant element to understand how the rights and duties of South Korean citizens are negotiated when it comes to the necessities of national defense. As this chapter unveils, the constitutional court’s military-related jurisprudence appears preoccupied with a dual concern: not only the disintegration of the state—which implies to be ready for war to guarantee both peace and the existing institutional order, but also the disintegration of the national community, whose unity may be threatened by alternative ways of envisioning the parts attributed to its members.

Judgments on War and Peace

Military Operations On and Off Trial: A Comparative Perspective Constitutional courts are not particularly known for reviewing the national security decisions of the political branches and the armed forces critically, especially when such decisions touch upon resolutions about the making of war and peace. The ability to intervene in military matters, however, is not inherently outside the possibilities of judicial action, as epitomized by the 2004 ruling of the Sala IV, the constitutional chamber of Costa Rica’s supreme court, which declared unconstitutional the country’s support for the war in Iraq. The activism of the Costa Rican court, analyzed later in this chapter, is far from being an isolated example. In the United States, “the notion that courts are poorly suited to decide issues of war power and foreign affairs [did] not emerge until after World War I,” when a legal literature on the limits of “judicial cognizance” over matters of foreign policy, war, and peace started to develop. 5 Until then, courts had not particularly construed their role as being limited by these issues’ very nature.6 In the contemporary world of constitutional politics, the Israeli supreme court embodies a renowned exception to the idea that courts cannot interfere in military matters. Since Israel took control over the 146 Regime Transition and the Judicial Politics of Enmity

West Bank and the Gaza Strip as a result of the Six-Day War fought against Egypt, Jordan, and Syria in 1967, the supreme court has reviewed orders of the military in the Occupied Territories. First petitioned by Palestinian residents of these areas in the early 1970s, the court has come to recognize that its writ “extends to reviewing the legality of all acts and decisions of governmental authorities, including the IDF [Israel Defense Forces], wherever they may be performed.” 7 In contrast, issues of war-making have largely been dismissed by the Constitutional Court of Korea. Rulings that decline to decide a case are no less “positive” and telling than the judgments that strike down or validate legislation. Alexander Bickel has thus famously described the American supreme court as wielding a threefold power: censoring, legitimating, or abstaining. This last role corresponds to “the point at which the Court gives the electoral institutions their head and itself stays out of politics,” and it is precisely “where the Court is most a political ani- mal” according to Bickel. 8 To withhold its constitutional judgment, the supreme court has developed over time an “inexhaustible arsenal of techniques,” including the political question doctrine following which issues of a political rather than legal nature fall outside the scope of judicial review. 9 A lot can therefore be learned from the Constitutional Court of Korea’s decisions to abstain, and in particular from its justifications for why the military issues raised before it—South Korea’s participation in the Iraq War, the relocation of a US base on the national territory, the conduct of an annual joint military exercise with the American army—were not found justiciable. No consistent set of arguments has been used by the court to dismiss these cases. For instance, a version of the political question doctrine was invoked by a majority of justices on only one of these three occasions. While reviewing military matters is not intrinsically beyond the possibilities of judicial action, the Constitutional Court of Korea has used various tools to decline doing so. The inclination or reluctance to decide issues of war and peace differs from one court to another, as exemplified by the comparison between the Sala IV’s and Constitutional Court of Korea’s respective rulings on Iraq; but it also varies throughout time, as illustrated by the evolution of US jurisprudence. The Israeli case openly demonstrates that the existence of an intense and prolonged security threat does not take away the likelihood of reviewing military issues. Israeli judges have repeatedly contended that the “security of the state” is not a “magic word” Reviewing Exigencies of National Defense 147 that makes judicial review disappear. 10 This does not entail that the supreme court construes the security plight of the nation differently or less seriously than the political branches and the defense forces. On the contrary, its judgments have consistently recognized how “ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence,” while “terrorist organizations have set Israel’s annihilation as their goal.” 11 Contrary to the common view that Israeli jurisprudence on cases from the Occupied Territories is critical of governmental action and rights-minded, several authors have insisted on the legitimizing effects produced by the supreme court’s rulings. 12 According to David Kretzmer, the national narrative put forth by the institution merely reaffirms “that the state is being attacked, the authorities are trying to protect it, and the ultimate duty of the Court is to assist them in this task.” 13 As argued in the present research, this type of discourse is not in contradiction with the raison d’ê tre of constitutional courts, as the possibility of enmity and the correlative necessity to defend society are embedded in the constitutional order of contemporary democracies. If reviewing matters of national security and defense policy—including reversing military orders or overturning such a momentous political decision as going to war—is not beyond the reach of judicial action, making the state weaker and more vulnerable is outside the discursive realm of courts’ intervention. Even judgments that seemingly restrain the state’s capacity to take certain military steps are envisioned by courts as acting in the state’s interests rather than against them. The potential that exists for judicial resistance is therefore not infinite. Moreover, its existence does not entail its realization. Courts have instruments at their disposal to review military issues or to avoid doing so. Rulings by the Constitutional Court of Korea over matters of war and peace suggest a strong inclination for the latter, as the complaints challenging the dispatch of South Korea’s armed forces to Iraq, the relocation of an American military base on the national territory, and the conduct of a joint military exercise between the US and ROK armies were dismissed as nonjusticiable by constitutional judges. Yet, none of the above-mentioned military initiatives was completely left without blame, illustrating that the court’s caution does not equate absolute deference vis- à -vis the political branches. While the Constitutional Court of Korea can be seen as less assertive than some of its counterparts when war and peace are involved, its refusal to review a series of challenges to existing military policies may also be interpreted as having successfully served one objective: preventing 148 Regime Transition and the Judicial Politics of Enmity litigants’ demands—and the alternative national imaginary sustaining them—from fully accessing the constitutional stage.

Going to Iraq: Whose Political Judgment is to be Trusted? In 2003, a constitutional complaint was filed against the executive’s decision to dispatch South Korea’s armed forces to Iraq. It emanated from a single petitioner assisted by a court-appointed lawyer, since being represented by counsel is a prerequisite to any proceeding before the Constitutional Court of Korea. 14 Notwithstanding the significance of the stake, the request was characterized by a conspicuous lack of orga- nizational support behind the petitioner’s claim. The court even found itself forced to reformulate the subject matter raised by the complaint, which was not viewed as appropriately framed. The original petition challenged the “decision of the National Security Council (kukka anj ŏ n pojang hoeŭ i) of October 18, 2003, to dispatch private soldiers to Iraq,” mainly on the ground that this initiative violated article 5 of the constitution by which South Korea “shall renounce all aggressive wars.” 15 As the National Security Council is no more than an advisory body, the court reasoned that its resolutions were not legally binding. Instead, it deemed the president’s decision to send the national armed forces to Iraq the proper matter of review in this case. The inadequate formulation of the issue was not the reason why the court declined to review the request. While all justices were in favor of its dismissal, they diverged over the justification for their common position. A minority of judges held that the complainant lacked self- relatedness, not being “a party concerned who will be dispatched due to the detachment decision at issue in this case, nor [who is] presently or is scheduled to be in military service.” 16 This procedural and potentially surmountable obstacle was not the one identified by the majority, which did not find the court qualified to settle the issue raised by the complaint in the first place. Claiming that “a decision to dispatch Armed Forces requires a resolution of highly political nature based upon the consideration of total circumstances concerning domestic and international political relations,” most justices reasoned that “such a decision is to be made by the institution representative of the con- stituents therefor [sic ], by way of prudent decision-making through an expansive and extensive deliberation with the experts in the relevant field.”17 In ruling so, the Constitutional Court of Korea seems to have completely yielded to the wishes of the political branches, and in particular Reviewing Exigencies of National Defense 149 of the executive. The Roh Moo-hyun administration, then in power, had clearly warned the court against an undue exercise of judicial review through the opinion filed by the Ministry of National Defense (kukpangbu), acting as respondent in the case. Its opinion affirmed that the decision to dispatch the armed forces to Iraq constituted an “executive prerogative action,” authorized by the constitution, premised upon “a determination of highly political nature,” likely to receive the democratic legitimation of the parliament, and against which the constitutional court would have no means to enforce a decision of unconstitutionality. 18 A majority of justices conceded that “an utmost deference” was owed to the elected political branches in the matter at hand, provided that the executive’s decision received the consent of the National Assembly. The court underlined that parliamentary approval was required by the constitution in order to “prevent arbitrary warfare or dispatch of Armed Forces by mandating prudence in exercising the prerogative of supreme command of military by the President.”19 While the language of the present ruling was less authoritative than earlier jurisprudence on the necessity of reviewing executive prerogative actions, it nonetheless alluded to the possible arbitrariness of a decision made by the presidency alone. 20 This was not the only criticism articulated by the court. On the one hand, justices did not manifest much confidence in the capacity of any of the political branches to make the right judgment about the nature and consequences of the war. On the other hand, they con- fessed that the verdict that they could themselves deliver on the matter was unlikely to “assertively be more right or correct than that of the President or the National Assembly” given the “limited materials and information” at the court’s disposal. 21 Rather than an optimal solution, its choice to conform to the will of the representative institutions was thus presented as the lesser of two evils. The court did not abide by the decision of the political branches because it trusted the soundness of their discernment, but out of doubt for its own capacity to make a better judgment and to receive public support. 22 In other words, abstaining from judicial review was not regarded as a desirable thing in itself, premised on the political nature of the issue under review. While the court was willing to trust neither the judgment of the political branches nor its own, it did identify one legitimate censor of the resolution to go to war: the electorate, who would eventually hold the responsible decision-makers accountable at the ballot box. Toward the very end of the ruling, the court’s prudent attitude was also justified in comparative light as the majority claimed that its 150 Regime Transition and the Judicial Politics of Enmity position conformed to “judicial self-restraint over the matters concerning diplomacy and national defense that require a resolution of highly political nature in other nations with a long tradition of democracy.”23 While the U.S. Supreme Court was not explicitly cited by South Korean justices, there is little doubt that their allusion to issues “of highly political nature” made reference to the political question doctrine associated with American jurisprudence. According to it, courts are expected to eschew reviewing questions that are by essence political, and not legal. However, the doctrine appears more as a resource forged and used by courts than as a limit that actually constrains their jurisdiction. 24 This reality is evidenced by the Constitutional Court of Korea’s own record of dismissing war-related matters without claiming that they raised issues of highly political significance. Although courts can intervene in the field of war and peace, only some actually do. Despite this difference, in itself momentous, they all continue to operate within a shared order of discourse in which possibilities are multiple but not infinite as comparing the 2004 rulings on Iraq delivered by South Korea’s constitutional court and its Costa Rican counterpart contributes to highlighting.

Ruling on Iraq in Costa Rica and South Korea: From Antithesis to Mirror Image Created in 1989 following a constitutional amendment, the constitutional chamber of the Supreme Court of Justice of Costa Rica, or Sala IV, has since undoubtedly provided the strongest institution of its kind in Latin America. 25 Its 2004 judgment against the presidential decision to support the war in Iraq is usually cited as one of the most eloquent demonstrations of the court’s activism. Contrasting the Sala IV’s ruling of unconstitutionality with the Constitutional Court of Korea’s dismissal importantly sheds light upon differences as well as common- alities between their constraints and possibilities. Both countries first share a system of constitutional justice widely accessible, making it possible for individual complaints challenging the executive’s endorsement of the war in Iraq to have directly reached each court. The system leading to the Sala IV is even more open than its South Korean equivalent since “anyone in Costa Rica (without regard for age, gender, or nationality) can file a case with the Sala IV at any time of day and any day of the year, without formalities, lawyers, fees, or an understanding of the point of law on which the claimant is appealing.” 26 Reviewing Exigencies of National Defense 151

Moreover, the case on the war in Iraq reveals a broader conception of justiciable interests in Costa Rica than in South Korea when it comes to constitutional petitions. No prerequisite such as a present and direct infringement on the complainant’s basic rights is necessary for his or her request to be admissible. Arguments about petitioners’ lack of self-relatedness—as advanced by the minority in the South Korean ruling—would have been irrelevant for the Sala IV, which considers as justiciable any “interest which concerns the collectivity as a whole.”27 The petition challenging the executive’s decision to support the war in Iraq was brought before the court by a coalition of individuals, including a law student, the representative of the Lawyers’ Association of Costa Rica, and the so-called Defender of the Inhabitants—that is, the country’s ombudsman. They all alleged that the pacifist vocation of the country, affirmed in the constitution, was violated when the presidency declared that the country could not be neutral “in the conflict between peace and terrorism.” 28 Contrary to the complainants’ claims, the court did not find that the executive’s statements were tantamount to a war declaration against Iraq as they only expressed the administration’s moral support toward the United States and its allies. In ruling so, the court followed the prosecution’s argument that the executive never tried to deny that Costa Rica was constitutionally committed to peace and incapacitated to be at war given its renouncement to the maintenance of permanent armed forces. Therefore, the Sala IV did not sanction the administration’s support for the intervention in Iraq as a declaration of war violating the constitutional value of peace. Instead, its invalidation was pronounced in virtue of “the impossibility of our government to tie its foreign policy to belligerent actions outside or even parallel to the United Nations system—including of course those actions which consist in mere mani- festations of ‘moral support’—as the proper means to solve conflicts.” 29 In so far as military actions in Iraq were taken outside the frame of the United Nations, justices concluded that the administration could not sponsor them and should therefore request the exclusion of Costa Rica from the list of countries part of the US-led coalition. As underlined by the constitutional chamber itself, no party in this case contested the existence of peace as a constitutional commitment and valid standard by which to check the acts of the state. The court was however the only one to stress that peace could not be construed as an absolute value prevailing in all circumstances. Its verdict thus affirmed that Costa Rica’s fundamental vocation to pacifism “does not mean that the country is left with no possibility of defense, but instead 152 Regime Transition and the Judicial Politics of Enmity that it has opted for the international system of institutions to provide the respect of its rights and its defense in case of necessity.” 30 If the possibility of war remains inscribed in the constitutional order, any action related to it—including mere moral backing—was deemed unthink- able by the court outside the frame of the United Nations upon which Costa Rica’s security is ultimately premised. In a sense, the South Korean context is the mirror image of this configuration. The country’s security being historically anchored to its post-1945 alliance with the United States, participating in the war in Iraq was envisioned by the court as involving “various elements concerning national interest such as the relationship with the allies,” itself tied to the perspective of an “amicable settlement of the nuclear situation in North Korea.” 31 The connection between Seoul’s role in the coalition and its strategy toward Pyongyang was clearly part of the South Korean political and public debate about Iraq at the time. Roh Moo-hyun, who took his presidential functions in February 2003 and endeavored to sustain the Sunshine Policy (haetpyŏ t ch ŏ ngch’aek) initiated by his predecessor Kim Dae-jung, saw no conflict between the two. 32 On the contrary, Roh defended that the South’s participation “serves the larger interests of a country whose foreign policy is founded upon its alliance with the United States” and was associated with “signs of a softer line from America towards North Korea in talks aimed at dismantling Pyongyang’s nuclear-weapons program.” 33 The South Korean administration’s paradoxical construction of the country’s support for the war in Iraq as potentially favoring “an amicable settlement of the nuclear situation in North Korea and the solidifica- tion of the South Korea-US alliance” was insisted upon in the opinion that the Ministry of Defense presented to the Constitutional Court of Korea and which the institution largely endorsed. 34 Interpreted as emanating from the strategic and symbolic considerations given to each country’s security partnership, the South Korean and Costa Rican rulings present a striking similarity, privileg- ing the paradigm and structures eventually relied upon for national defense—the bilateral relationship with the United States on the one hand, the multilateral framework of the United Nations on the other hand. Discursively, the two decisions were also united by their acknowledgment of peace’s relativity as a constitutional value. Like any other fundamental interest or right in the constitutional order of contemporary democracies, the commitment to peace is prone to recede at the point where its preservation may endanger the state. In the end, both verdicts additionally shared a common sense of restraint vis-à -vis Reviewing Exigencies of National Defense 153 judging the nature of the war in Iraq. None engaged with the issue of determining the legality of the conflict, neither from a military point of view nor from the perspective of international law. What courts actually do also depends on how strongly or weakly their decisions are complied with. In this respect, a notable difference between the rulings of Costa Rica’s constitutional chamber and its South Korean counterpart rested on the reaction of the political branches. While the administration openly warned the Constitutional Court of Korea that no legal method would be available to enforce its judgment if adverse to the executive and legislature’s policy on Iraq, the Sala IV’s activism has been characterized by “a surprising lack of an effective political backlash” since 1989. 35 Following the decision against the country’s sponsoring of the war, a diplomatic note was sent to the US Embassy in San José to request Costa Rica’s withdrawal from the list of nations supporting the operation. As commented by then Foreign Minister Roberto Tovar, “the court has ordered me to get the country’s name off that list, and that’s what I’m doing.” 36

If You Want Peace—and Rights—Prepare for War Let us recall that the discourse articulated in South Korean constitutional jurisprudence cannot be analyzed as conveying a metaphor or synecdoche for how society as a whole apprehends the division. On the contrary, what military cases before the Constitutional Court of Korea precisely point to is the existence of a fundamental disagreement about current dynamics in the peninsula and the type of national imaginary through which they are understood. For instance, a petition was filed in 2007 against the joint military practice annually conducted by the United States and South Korea on the ground that it constituted a military provocation toward the Democratic People’s Republic of Korea. Contrary to the 2004 request made by an isolated complainant against the decision to take part in the war in Iraq, the present petition was brought by some 98 individuals represented by a variety of law firms. Their request characterized the military exercise, operated once a year throughout the South’s territory, as a “preemptive attack practice” against North Korea, which “increases the possibility of war in the Korean peninsula and threatens the peace of North Asia as well as the world.”37 The complaint was unanimously dismissed by constitutional justices but on a different ground than its involvement of a question “of highly political nature.” The court reasoned that the challenged practice 154 Regime Transition and the Judicial Politics of Enmity could not be considered as an exercise of state power, thereby granting a special status to military operations conducted with the United States and paradoxically reinforcing a vision of South Korea’s sovereignty as incomplete. By contrast, the condemnation of the South’s dependence vis- à -vis the United States has been at the heart of the alternative national imaginary promoted by the pro-democracy movement since the 1980s, which translated into the seduction exerted by North Korea’s chuch’e sasang or ideology of self-reliance over minjung activists.38 While the constitutional court eschewed the issue of the joint military exercise’s potential negative impact on inter-Korean relations and peace in the Northeast Asian region, it nonetheless appraised whether the petitioners’ right to live peacefully was being infringed. Earlier in its jurisprudence, the court had unanimously consecrated such a right after local inhabitants challenged the relocation of a US military base nearby their place of residence. Although “prior to South Korea’s democratic transition in 1987, social and environmental exter- nalities [including camptown prostitution] derived from the U.S. bases attracted little attention from the public,” mobilization started to coalesce in the 1990s against the relocation of a base near the city of P’yŏ ngt’aek, which led to the filing of a constitutional complaint in 2005.39 While the complaint itself was dismissed in 2006, the right to live peacefully was derived from the constitution on that occasion. 40 In 2009, a majority of justices decided to overturn this precedent and negate the existence of such a right, holding that it was not guaranteed by the constitution and that the petitioners therefore lacked a justiciable interest to challenge the joint military practice. 41 Four justices concurred with the majority’s dismissal of the case but contested its repudiation of the right to live peacefully. Their discourse is interesting on several accounts. First of all, the right to live peacefully was defined as prohibiting “the state’s act of drafting citizens to an aggressive war and leaving them under the threat of terror.” 42 This reasoning indicates that making judgments about war and peace is not conceived as impossible by the Constitutional Court of Korea and that, under the above circumstances, warfare could be found unconstitutional by at least a minority of justices. Second, their assertive position was never premised on constructing peace as an absolute commitment. If it exists, the right to live peacefully creates a number of obligations upon the state but does not imply an unconditional right to live without war. In the words of the minority,

Of course, peace without war cannot be achieved only by an individual country’s will and efforts and, thus, the right to peaceful Reviewing Exigencies of National Defense 155

livelihood does not mean the right to live without any kind of war and the right to oppose any type of war operation and military practice. The basic rights of citizens exist contingent upon the existence of a state and its basic order of liberal democracy. Even for the citizens’ basic rights, it is unavoidable to conduct a war and other military operation to protect land and citizens and to defend liberal democracy. Therefore, a state is allowed to: 1) impose the military duty on its citizens; 2) organize and maintain military force; and 3) conduct military practices for the above mentioned purpose.43

The concept of readiness for war that emerges from this decision is not only tied to preserving peace and statehood, but also democracy and basic rights. As asserted by Kim Jong-dae (Kim Chongdae) in a separate concurring opinion to the ruling on the joint military practice, the existence of fundamental rights is conditioned by the permanence of a certain institutional order, whose defense must be militarily secured—an imperative that leads to interrogate the rhetoric and functionality associated with the duty of national defense in contemporary South Korean democracy.

The Duty of National Defense

Chapter II of South Korea’s constitution is dedicated to the rights and duties of citizens, which include compulsory education (article 31, section 3), the duty to work (article 32, section 2), the duty to pay taxes (article 38), and the duty of national defense (article 39). Each of these four responsibilities falls to all citizens of the Republic of Korea. However, the duty of national defense is effected through the requirement that all men between 20 and 30 years of age perform compulsory military service for two years. The issue of citizens’ equality before this constitutional duty has been challenged on various grounds. Three types of differential treatment have been brought to the attention of the Constitutional Court of Korea, based on beliefs, as conscientious objection is neither allowed on religious nor moral grounds; social status, since the members (and especially sons) of the political and business elites disproportionately tend to evade military service, known for its harsh conditions; and gender, given women’s exemption from conscription. Far from being unrelated, these phenomena highlight diverse shades of how South Korea’s national community is imagined and realized through the distribution of roles that the duty of defending the nation prescribes. 156 Regime Transition and the Judicial Politics of Enmity

Variants of Conscription and Conscientious Objection The length of conscription in South Korea, which has been undergoing a gradual reduction since 2008, depends on the branch of the military where service is performed: 21 months in the Army and Marine Corps, 23 months in the Navy, 24 months in the Air Force.44 Under article 88, section 1, of the Military Service Act (pyŏ ngy ŏ kpŏ p), punishment of up to three years of imprisonment awaits those who do not perform service “without any justifiable reason.” In addition, their employment opportunities are severely restricted as they cannot become civil servants or be hired in a public or private company for five years. While a diagnosed physical or psychological disability qualifies for accom- plishing non-active duty service lasting from 24 to 36 months, refusal to enlist for moral or religious reasons is not recognized as an accept- able justification. 45 Since the 1990s, the number of imprisoned conscientious objectors—most of whom are Jehovah’s Witnesses—has been dramatically on the rise.46 Imprisonment only started to replace coerced enrollment in the 1980s. It is estimated that 3,148 conscientious objectors served prison terms between 1980 and 1993, 4,058 between 1994 and 2000, and 8,295 from 2001 to 2012. 47 In 2009, the Presidential Truth Commission on Suspicious Deaths (taet’ongny ŏ ng sosok ŭ imunsa chinsang kyumy ŏ ng wiw ŏ nhoe) recognized that five Jehovah’s Witnesses forcibly conscripted in the 1970s and 1980s died as a result of the violence unleashed against them for refusing to take part in drills and to carry guns.

The results of the commission’s inquiry are shocking even though the five men’s deaths occurred 20 to 30 years ago, during the Park Chung-hee and Chun Doo-hwan regimes. Men who refused to bear arms were tortured “by repeatedly dunking their heads in concrete water tanks,” and one witness even stated that at least one man was “hit with a pickaxe for an hour and a half.” There was even an instance where one man was “put in a drum can and made to roll downhill for hours.” The treatment was horrific enough for one/some of them to have taken their own lives, though military officials would write up their deaths with statements like “death during training” or “suicide resulting from mental stress.” 48

Jehovah’s Witnesses, whose missionaries arrived in the Korean peninsula in the early twentieth century, were first persecuted during the colonial period. In the late 1930s, the Japanese police multiplied arrests Reviewing Exigencies of National Defense 157 against both men and women in the community for their antiwar pros- elytism and resistance to pray at Shinto shrines across Japan, Taiwan, and Korea. 49 Besides their consistent objection to serving in the military, Jehovah’s Witnesses are not otherwise marginalized in contemporary South Korea’s tolerant religious landscape, fragmented into myriad organizations affiliated with Christianity—which entered Korea in the late eighteenth century—or Buddhism. 50 As noted by the constitutional court, however, draft dodging has recently “spread among the Buddhists and the pacifists,” even though the figures are still scant (the court reported less than ten individuals objecting on the ground of their Buddhist faith or pacifism between 2001 and 2003).51 This paucity does not prevent alternative service’s detractors from fearing that evading military service would become a widespread phenomenon if conscientious objection was allowed on religious and moral grounds.52 Rules shaping military service—and correlated exemptions—are deeply embedded in national contexts. Since 1987, the United Nations Commission on Human Rights (now the Human Rights Council) has repeatedly called for states “to recognize that conscientious objection to military service should be considered a legitimate exercise of the right to freedom of thought, conscience, and religion recognized by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”53 The first statutes allowing conscientious objection were enacted in Switzerland, Norway, and Denmark around World War I. Such recognition was “more difficult for the less pacific powers, which are under greater stress and involved in a more complex world of affairs,” but France, Britain, and the United States had come to adopt the right to conscientious objection by the early 1970s.54 Since then, each country has also renounced mandatory conscription. In the United States, ending the draft was a campaign promise of Richard Nixon and came into effect in 1973, after the US army’s active ground participation in Vietnam was discontinued. Prior to it, the U.S. Supreme Court had consecrated the legitimacy of conscientious objection for both religious and nonreligious motives, while ruling against selective objection to specific wars. 55 In the Federal Republic of Germany, where conscription ended in 2011, the right to conscientious objection has been inscribed in the basic law since 1949. In Israel, military service is compulsory for both men and women above 18 years of age, but important segments of the population are excluded from its scope. Citizens who are Christians, Muslims, Circassians (i.e., Sunni Muslims), as well as ultra-orthodox Jews, are not required to serve in the army and may only join it voluntarily. 158 Regime Transition and the Judicial Politics of Enmity

Practically, all Arab citizens (who make up about 20 percent of Israel’s population) are exempted, excepting Israeli Druzes, who were recognized as a distinct ethnic and religious community after the establishment of the Israeli state. During their time in the defense forces, Druzes, who are Arabic-speaking citizens, often serve as translators, especially in the military court system, which operates in the West Bank and Gaza. 56 Ultra-orthodox Jews (who represent around 10 percent of the population) are also exempted, in virtue of the agreement established between religious and secular parties at the founding of the state. 57 For the rest and majority of the population, the service obligation lasts 36 months for enlisted men and 21 months for women. Apart from the exemption granted to the ultra-orthodox community, no conscientious objection is allowed for Jewish males. Those who refuse to enlist in the military or to serve in the Occupied Territories risk a prison sentence handed down by a military tribunal. In his analysis of US national security jurisprudence, Seth Waxman has contrasted the deferential attitude of American judges in times of crisis with the more right-protective approach of their Israeli counterparts, highlighting how the latter’s service in the army could be a potential factor to understand why they “have been far less inclined to accept at face value claims of national secur it y necessit y.” 58 Interestingly, students of South Korea’s Judicial Research and Training Institute, in charge of preparing future judges and prosecutors, only undergo four weeks of military training after the completion of their studies. 59 The existence of a conflict of sovereignty, as experienced by Israel and South Korea, is not an insuperable hurdle to recognize the right to conscientious objection, as illustrated by the case of West Germany and more recently, Taiwan. Although article 20 of the Constitution of the Republic of China provides that “the people shall have the duty to render military service in accordance with law,” conscientious objection was made possible by legislation in 2000, when civilian service was introduced as an alternative to the draft concerning all men between 18 and 35 years of age.

Areas of Agreement and Disagreement in the Judgment on Conscientious Objection On August 28, 2004, the Constitutional Court of Korea delivered its ruling on the constitutionality of article 88, section 1, of the Military Service Act criminalizing the failure to enroll for active military service Reviewing Exigencies of National Defense 159 with no justifiable cause. The verdict intervened only a few months after an unprecedented decision by the Seoul Southern District Court (s ŏ ul nambu chibang p ŏ bwŏ n) to acquit three Jehovah’s Witnesses objecting to serving in the army.60 In its groundbreaking judgment, the tribunal had argued that, “the intention of the Constitution is a clear manifestation of not intervening in the inner freedom of individual conscience” and underlined that the right to refuse serving in the military was recognized in the international law of human rights. 61 Indeed, while the right to conscientious objection does not explicitly figure in the Universal Declaration of Human Rights (UDHR) or the International Covenant on Civil and Political Rights (ICCPR), which South Korea joined in 1990, it was first affirmed by the United Nations Commission on Human Rights in 1987 and later derived from article 18 of both the UDHR and ICCPR in 1989. By the time the constitutional court rendered its decision, the verdict of the Seoul Southern District Court—the first judicial decision in favor of objectors to compulsory military service in South Korea—had been overruled by the supreme court. 62 It was in this heated context that the awaited constitutional clarification of the issue came. The 2004 constitutional decision consisted of a ruling endorsed by five members, the separate concurring opinions of two justices, and the joint dissenting opinion of another pair of judges. The majority’s judgment can be characterized as a deferent defense of conscientious objection, taking to heart the meaning of freedom of conscience and refusal to perform military service while not pronouncing the latter’s criminalization unconstitutional. Below the surface question of whether punishing conscientious objection was constitutional or not, a fundamental disagreement between justices stemmed from their conflicting visions of the legislature’s responsibility and the court’s role in relation to the issue under review. In this respect, both the majority and dissent importantly emphasized the duty incumbent upon the legislative branch to reconcile the right to freedom of conscience and the necessity of national defense. By contrast, Kwon Seong (Kw ŏ n Sŏ ng) and Lee Sang-kyung (Yi Sanggy ŏ ng), two parliament’s nominees, wrote separate opinions in which they concurred with the majority’s determination of constitutionality but denounced its recommendations to the legislature as inappropriate under the separation of powers—a condemnation that a fortiori applied to the dissent’s criticism of the National Assembly’s attitude. Indeed, the five justices who upheld the constitutionality of the current conscription system also declared their dissatisfaction with the 160 Regime Transition and the Judicial Politics of Enmity heavy sacrifice imposed on freedom of conscience, thereby urging lawmakers to seriously consider the possibility of reforming the ban on conscientious objection. The dissent clearly situated itself in the continuity of the majority’s reasoning, but advocated the invalidation of article 88, section 1, of the Military Service Act on the ground that the National Assembly had failed to even try solving out the existing antagonism between the constitutional values at stake—on the one hand, the duty of national defense provided for in article 39; on the other hand, freedom of conscience consecrated in article 19 of the constitution but limitable, like any other basic rights, “when necessary for national security, the maintenance of law and order or for public welfare” under article 37, section 2. Ironically, both Kim Kyung-il (Kim Kyŏ ngil) and Jeon Hyo-sook, the two dissenting judges, were nominated by the chief justice of the Supreme Court of Korea, an institution whose stance against conscientious objection was strongly reaffirmed when the Seoul Southern District Court’s acquittal was overturned in 2004. Kim and Jeon’s opinion was first and foremost directed against the parliament, showing no indulgence for its “failure to make the minimum effort” in favor of a “necessary and possible” alternative to mandatory conscription and sanctioning its negligence as an undue restriction of basic rights.63 The majority agreed that, “if the legislators do not present an alternative while an alternative may be presented without obstructing the public interest or the legal order, this may be unconstitutional as a unilateral compulsion of sacrifice upon the freedom of conscience.”64 Yet, the five justices did not go so far as to assert that such an alternative could be presented, finding arguments both in support for and opposition to it. They made plain that the National Assembly had a responsibility to debate the ban on conscientious objection’s reform, which it would nonetheless be free to adopt or reject. The difficulties identified in relation to the implementation of alternative service were multiple. Importantly, they were not confined to the national security puzzle posed by the protracted “hostile opposition” between the two Koreas, as the court described the situation in the peninsula. Assessing the security predicament of the Korean peninsula neither appears as an object of contention in constitutional jurisprudence in general, nor became one in the decision over conscientious objection in particular. Two features consistently put forth by the court to characterize the division were reiterated in this 2004 ruling: the unabated tension between the North and the South on the one hand, and the Reviewing Exigencies of National Defense 161 incomparability of the Korean crisis on the other hand. As argued by the majority,

Our nation is the only divided nation in the world that is under the state of truce, and the South and the North are still in a hostile opposition state based upon extremely strong military powers accumulated through the arms races in the past. Under this unique security situation, the duty of military service and the principle of equality in allocating the burden of military service have an important meaning that is incomparable to other nations. 65

This depiction was agreed upon by all justices, including the dissenting ones. The court’s consensus extended to the fact that the legitimacy of the conscription system itself was never called into question, nor conscientious objection defended at the expense of the state’s safety. As affirmed by Kim Kyung-il and Jeon Hyo-sook in their dissent, “we do not claim . . . that the conflict [between the basic right to freedom of conscience and national security] should be resolved by choosing the side of the protection of conscience notwithstanding the debilitation of military power or injury to the equality in the burden of military service.”66 Not disarming the state is indeed part of the discursive order shared by all constitutional rulings, whether they tend to be conservative or progressive. Even decisions that seemingly settle the balance between national security and basic rights in favor of the latter abide by this boundary of constitutional justice. As a result, no court intentionally seeks to make the state more vulnerable, although different visions of where its ultimate strength resides may compete. In the case at hand, however, neither the majority nor the dissent reasoned that “peaceful coexistence” between the two Koreas was an absolute precondition for the legislature to adopt an alternative to mandatory conscription. None identified inter-Korean relations as the only factor to be taken into consideration, illustrating that reforming compulsory military service raises difficulties independently from the division. Two greater obstacles were identified by the court as impairing the recognition of conscientious objection in contemporary South Korean society: satisfying the demand for equality in sharing the burden of national defense, and conciliating the protection due to the rights of minorities with the interests of the majority. 162 Regime Transition and the Judicial Politics of Enmity

Beneath Upholding Mandatory Conscription: The Court’s Contribution to a Certain Way of Envisioning the “National” According to the majority, recognizing the right to conscientious objection first required vast acceptance in South Korean society “that permitting the alternative service will harm neither the realization of equality in the burden of performing the duty of military service nor the social utility, through the widespread understanding and tolerance of the conscientious objectors.” 67 As of 2004, such consensus and tolerance were not found to reign by the court. While the majority expressed its hope that “our society is now mature enough to understand and tolerate the conscientious objectors,” it did not envision its role as pre- cipitating change knowing that this initiative would not command easy acceptance from the political branches and the dominant public opinion. 68 Yet, what the Constitutional Court of Korea’s prudent approach also reveals is the institution’s fundamental anxiety about the desirabil- ity of protecting the members of minority groups against the tyranny of the majority, or discrimination in modern legal parlance. Discrimination is defined as a difference of treatment detrimental to some individuals based on their perceived membership in a salient group or on a formally neutral practice carrying a negative impact for those same individuals without being strictly indispensable to the promotion of a legitimate goal (the former type of discrimination is termed direct and the latter indirect). 69 In its 2004 ruling on mandatory conscription, the South Korean court appears to have dismissed the option of eradicating a form of indirect discrimination based on religion because this very elimination was conceived as a kind of preferential treatment favoring the members of a minority group, that is, as another type of discrimination held more dangerous by the court than the first one. As constructed by constitutional jurisprudence, the risk associated with recognizing the right to conscientious objection was double: it not only imperiled the security of the nation, but also threatened to erode its cohesion. The majority of the court thus warned that,

In our society where the social demand for the equality in the burden of military service is strong and absolute, should the equality in performing the obligation become a social issue due to the permission of an exception to the duty of military service, the adoption of the alternative service system might cause a serious harm to the capacity of the nation as a whole by crucially injuring the social unification and might further destabilize the backbone Reviewing Exigencies of National Defense 163

of the entire military service system based upon the mandatory conscription of all citizens.70

Insofar as they are objecting to military service on the ground of their belief in a higher normative order than patriotism, minority groups such as Jehovah’s Witnesses or pacifists jeopardize a certain idea of the “national” not by formulating an antithetical version of its contents, as the minjung forces did, but by making a claim that situates itself beyond the nation-state. 71 Fearing that acceding to conscientious objectors’ demand for protection might threaten the capacity and unity of the entire nation, the constitutional court’s apprehension toward minority rights echoes “the absence of pluralistic values or uniformity” characterizing South Korean society diagnosed by Choi Jang-Jip. 72 According to Choi, this phenomenon is an outcome of the country’s modern historical development, in particular of the hyperconcentration of political power and economic wealth that took place under the process of authoritarian industrialization in the 1960s–1970s and has continued to intensify ever since. The “great homogeneity in terms of ideology or value orientation” that this centripetal configuration has created between the political, bureaucratic, and corporate elites (all concentrated in Seoul) has also given rise to a system of special privileges and favors among them. 73 The evasion of conscription can be seen as part of this system. The issue of how far society can go in its demand for equality and transparency in relation to the duty of national defense reached the Constitutional Court of Korea in 2007. That year, the court adjudicated the complaint of a public official forced to disclose the name of the disease that prevented him from performing active military duty—in his case, the loss of vision in one eye. The requirement that public servants report information about their service in the military was implemented by the parliament in 1999. This initiative was prompted in response to the nation-wide scandal that erupted in the summer 1998 over the extent of draft-dodging among South Korean elites, when “it turned out that many influential members of society [were] implicated in significant amount of frauds or unjust preferential treatment of military duty.” 74 The Act on Report and Disclosure of Military Service Records of Public Personnels and Others (kongjikcha tŭ ng ŭ i py ŏ ngy ŏ k sahang singo mit konggae e kwanhan p ŏ mnyul) was subsequently passed by the National Assembly and expanded in 2004, when the obligation not only to report one’s exemption from the draft but also the exact cause behind it (i.e., the name of the disease responsible for incapacitation) was introduced. These pieces of information were to be published in the official gazette and made accessible on the Internet. 164 Regime Transition and the Judicial Politics of Enmity

The disclosure scheme was unanimously invalidated by the court, despite divergences among justices over the modalities of its censure— the majority opted for an incompatibility decision leaving the unconstitutional provision temporarily applicable, while other judges argued for a decision of simple unconstitutionality or incompatibility with an immediate suspension of application. These various opinions, however, agreed to nullify only part of the report system, the one concerning the divulgation of the disease’s name. As for the requirement to provide information about whether one had served or not in the military, it was found necessary and legitimate given the demand and need for transparency in relation to mandatory conscription in contemporary South Korean society. The court recalled how “Korean people were shocked to find out the corruption scandals related to the duty of military service” in the late 1990s, and how such concerns would remain actual as long as “the frauds and corruptions related to administration of the military service are not . . . rooted out.” 75 The issue of (in)equality in sharing the burden of national defense has also been raised before the Constitutional Court of Korea on another ground than minorities’ tolerance and social status. The first case against gender-based differential treatment in relation to military service was brought before the court by female students challenging the automatic extra points attributed to discharged soldiers in all civil service examinations. The constitutional court struck down the extra- point system in a 1999 decision deeming that the sacred duty of serving in the military was not a special sacrifice that should be compensated by favorable treatment. 76 The court further articulated its decision in paternalistic terms consistent with the letter of the constitution, considering that the very categories of person exempted from conscription—women and disabled men—were the “weak of our society” and deserved special protection. 77 The issue of the potential disadvantage caused to men by the absence of female service was examined by the constitutional court in a 2010 ruling indicative of how gender categories and relations are constructed in South Korean jurisprudence. The present system was upheld by a majority of six justices (including the two concurring opinions of three judges), who justified preventing the enlistment of women in light of the risk that their incorporation would harm the quality and discipline of the army.

In light of the physical capability required for conducting combat operations, men, who are superior in their physical strength needed Reviewing Exigencies of National Defense 165

for carrying and activating a weapon or war equipment, are more likely to have proper physical capabilities than women . . . Even a woman with excellent physical capability may have a hard time in conducting her duties of training or war drills during around one-week menstrual period in every month . . . In addition, women rather than men are more likely to be exposed to a danger including sexual abuses when they are taken prisoner in wartime so that dispatching a woman to a real battle such as military operation is more demanding . . . In addition, we are not convinced that, if we also make women to have full-scale duties of military service under current male- oriented military organization and its facilities, crimes like sexual harassment based on power and dominance within the military or the slack military discipline caused by relationships between men and women would not happen.78

In opposition to these arguments, Justices Lee Kong-hyun (Yi Konghy ŏ n) and Mok Young-joon (Mok Yŏ ngjun) reasoned that differential treatment between men and women might be justified under the constitution but could not be based on such “archaic generaliza- tions” and “stereotype of gender roles” as those upon which the majority’s defense of male military service rested. The latter can be said to have endorsed an instance of statistical discrimination, validating the use of sex as a proxy to evaluate individual personal characteristics. In contrast with most liberal democracies where statistical discrimination is as stringently prohibited as discrimination based on prejudice, not only is there apparently no policy to eradicate indirect discrimination in South Korea, as the ban on conscientious objection exemplifies, but statistical discrimination has also been held permissible by the constitutional court. 79 Overall, even the court’s arguments in favor of reforming the current military service system have not fundamentally challenged the masculinist and militaristic imaginary upon which the project of building a strong and wealthy nation has been based since the 1960s. 80 In this regard, Moon Seungsook has advanced the notion of “militarized modernity” to capture South Korea’s sociopolitical and economic trajectory, encompassing “the construction of the modern nation as an anti-communist polity, the making of its members as duty-bound ‘nationals,’ and the integration of the institution of male conscription into the organization of the industrializing economy.” 81 Military service has therefore been integral to the process of mass mobilization 166 Regime Transition and the Judicial Politics of Enmity required by state-led economic development and nation-building in the second half of the twentieth century.

Accordingly, men were called on to perform mandatory military service and encouraged to become the primary labor force in the industrializing economy. In contrast, marginalized as a secondary workforce in the economy despite their economic contribution, women were exhorted to carry out birth control and the “rational management of the household.” 82

The functionality of conscription as supporting the dual militarization of the nation and the labor market illustrates how national security in general, and military service in particular, are irreducible to their role in the frame of the enduring inter-Korean division. Although constitutional jurisprudence has left the domestic efficacy of South Korea’s security apparatus largely unaddressed, it importantly stressed how the duty of national defense connects to issues of social tolerance and cohesion in the post-authoritarian era. The military service system is indeed intertwined with ways in which the South Korean nation is imagined, not only as strong and manly but also as endangered by pluralism and diversity. These projections’ compatibility with basic rights and democratic values has been reviewed by constitutional justice on several occasions. The examination undertaken by the court, however, has not only left aside the processes in which inequality is rooted but has also consolidated its structures, ultimately reinforcing the role of conscription as one of the central mechanisms of mobilization and discrimination in modern South Korean history. EPILOGUE

Since the transition to democracy that South Korea experienced in 1987, constitutional justice has been prominently involved in the struggle opposing the state and parts of civil society over defining the boundaries of enmity. The various legal instruments delineating them by enforcing what counts as “national” or “antinational” in the post-authoritarian era have been repeatedly challenged before the Constitutional Court of Korea. In response, the court’s intervention has produced a duality of outcomes, both liberal and illiberal. This ambivalence is particularly striking when it comes to the repressive mechanisms inherited from the pre-1987 period, whose legality constitutional jurisprudence has strived to control while upholding their continued legitimacy to defend not only the state but also the basic order of free democracy. By shaping these tools in a way consistent with the procedural requisites of the rule of law, and by displacing the ground of their raison d’ ê tre, the court has contributed to consolidating their post-authoritarian relevance and functionality: policing a contentious and non-inclusive way of envisioning the national in the name of protecting national security. Security instruments are therefore best conceptualized as mechanisms of exclusion participating in the distribution of who is recognized or denied a part in South Korean democracy, that is, “a place in the symbolic order of the community of speaking beings.” 1 The political ability to speak has been at stake in many of the issues raised before the constitutional court and examined by this research. Speech not only lay at the heart of cases calling into question the validity of the National Security Act and its article 7 criminalizing the act of “praising, encouraging, or sympathizing with an antistate organization”; it was also importantly involved in challenges filed against the ideological conversion policy, the criminal justice system, or the ban on conscientious objection to compulsory military service. These mechanisms 168 Epilogue can be said to amount to two distinct and complementary ways of circumscribing the partition of the “sayable” in contemporary South Korea: by sanctioning certain kinds of statements (allegedly pro-North expressive materials under article 7 of the security legislation, any declaration of conscience objecting to conscription following article 88 of the Military Service Act), and by forcefully requiring the production of other forms of discourse (a pledge to abide by the laws of the country in the frame of the conversion policy, a confession of guilt in the criminal process). Both techniques of power correspond to different ways of devaluat- ing a voice: by making it speak against its will, and by discounting as noise, or rather as threat, what it truly wishes to say. Challenging the distribution of the sayable enforced by security instruments in post- authoritarian South Korea has thus fully given rise to a disagreement in the sense defined by Jacques Ranci ère of “a dispute over the object of the discussion and over the capacity of those who are making an object of it.”2 This conflict gained access to the constitutional stage insofar as the mechanisms of exclusion preventing it from unfolding in the public sphere have been consistently contested before the Constitutional Court of Korea. Constitutional justice, however, has imposed itself as a limited place of contention in the context of this asymmetrical struggle. Indeed, the Constitutional Court of Korea appears to have been caught in a paradox. Its commitment to safeguarding the constitution has not only entailed for constitutional jurisprudence to promote the rule of law and to protect basic rights but also to reinforce the non- inclusiveness embedded in the new democratic order. The role that the constitutional court came to embrace does not imply that it was created for such a purpose. While the argument has been made that the introduction of a strong mechanism of judicial review was wanted by all South Korean political parties in light of the electoral uncertainty that they faced in 1987, there seems to be little evidence that the activism of the Constitutional Court of Korea was the result of interest-based calculations on the part of its designers. What the new institution would be and would do was very indeterminate for most actors in the course and immediate aftermath of the constitution- making process. Contrary to expectations, constitutional litigation was largely set in motion by the very forces whose mobilization prompted the collapse of authoritarianism in the late 1980s but which the modalities of democracy’s institutionalization by political elites subsequently marginalized. Under the impetus of human rights lawyers, constitutional justice thus became a site for contesting the excluding legacy of Epilogue 169 the transition, embodied in the enduring repression of people’s movement groups—or minjung activists—throughout the 1990s. The trajectory of the South Korean constitutional court therefore illustrates the part of contingency and absence of predetermination that institutional design in general, and constitutional empowerment in particular, involve. In other words, even though particular and selective interests pervaded the process by which the court came into being, they did not shape in a causal way the path on which the institution embarked. Conversely, although the court has ultimately strengthened the excluding functionality of security instruments and the non-inclusive legacy of the transition, its decisions have also contradicted the immediate preferences of the political branches and law enforcement agencies in a number of ways. This ambivalence captures the double- edged role played by the court as guardian of the post-authoritarian constitutional order, a role that was not preordained by the institution’s crafters but unfolded as the constitutional arena was invested from below. From the perspective of comparative constitutional politics, the present monographic study of South Korea not only makes an important empirical contribution by documenting a case considered a model for democracy and judicial review in East Asia but also a theoretical one by critically questioning this dual characterization. Excavating the two-sidedness of the Constitutional Court of Korea’s intervention dis- closes how constitutionalism is not an institutional-discursive formation intrinsically tied to the promotion of liberal values. While the disagreement that led to the activation of constitutional justice in the late 1980s may be specific to South Korea, the paradox of defending constitutionalism that its court instantiates can be found in other contexts. The Constitutional Court of Korea does not stand as the only institution that has performed its role as guardian of the constitutional order in a double way, strengthening existing forms of non-inclusiveness through its commitment to defining and defending the polity’s basic structures and fundamental principles against the perils thought to endanger them. The South Korean case nonetheless illustrates how a given constitutional order may register and institutionalize dynamics of inclusion and exclusion distinct from tensions between religion and secularism, separatist and federalist nationalisms, or ethnocultural cleavages that tend to divide constitutional democracies such as Israel, Canada, or India. Contention over the contours of the body politic can also be sustained by the very modalities and frustrations associated with the 170 Epilogue institutionalization of democracy, which has only partially reconfigured the construction of enmity in post-authoritarian South Korea—leaving inherited repressive mechanisms in place to sanction the persistent mobilization of the minjung movement, claiming to be the true incarnation of the nation against political elites believed to have betrayed it since the 1945 division. Challenges to the national, however, have come from other fronts than the minjung discourse and identity mainly articulated by student activists and dissident intellectuals until the late 1990s. A different type of contestation that pro-democracy forces never engaged in emanates from the refusal to perform the duty of national defense. By contrast to minjung forces, religious minorities such as Jehovah’s Witnesses jeopardize a certain idea of the national not by formulating an alternative version of its contents but by making a claim that situates itself beyond the realm of the nation-state. Having their profession of faith or pacifism recognized as speech, and not as threat, is still at stake for the hundreds conscientious objectors sent to jail for dodging the draft every year. With the shift from minjung to simin undergone by South Korean civil society, only part of the post-1987 disagreement over the boundaries of enmity has disappeared. The recent dissolution of the Unified Progressive Party on the ground that it constituted a “revolutionary organization” whose activities or purposes contradict the basic order of free democracy not only unveils how this dispute is far from having reached a close, but also how prominent and ambiguous a role the constitutional court is still expected to play in its resolution. Like the controversy over the possible abolition of the National Security Act in 2004, the intense debates prompted by this case highlight that the disagreement over the contours of inclusion and exclusion in contemporary South Korea is not settled yet and will continue to unfold on the constitutional stage. In addition, the 2014 dissolution case confirms that legal mobilization is no longer solely resorted to by individuals contesting the instruments enforcing their exclusion, such as national security suspects and defendants, or conscientious objectors. Since the mid-1990s, politically conservative actors have increasingly invested the site of constitutional adjudication to preserve their understanding of the national while the ability and opportunity to practice the language of rights appear more than ever unequally distributed in contemporary South Korea. With economic marginalization in capitalist society hindering the emergence of citizenship, that is, the constitution of subjects into citizens endowed with rights that they can press against the state, those who are not only Epilogue 171 politically underrepresented but also socioeconomically alienated may as well be excluded from the realm of constitutional justice. Taking this site for what it is, with both its possibilities and limits, delineates in fine this research’s objective. CHRONOLOGY

1905 Korea becomes Japan’s protectorate as a result of the Ŭ lsa Treaty 1910 Korea is fully annexed by Japan 1919 March 1st Independence Movement 1919 The Provisional Government of the Republic of Korea is founded in Shanghai; it is presided by Rhee Syngman from 1919 to 1925 1931 Japan invades Manchuria 1937 Japan enters war against China 1941 Japan enters war against the United States August 15, 1945 National liberation; Japan’s colonial rule ends in Korea September 8, 1945 US forces land at Inchŏ n; the Korean peninsula is de facto divided north and south of the 38th parallel into two zones of occupation respectively under Soviet and US control 1945–1948 The South is under the control of the US Army Military Government July 17, 1948 The Constitution of the Republic of Korea is enacted August 15, 1948 The Republic of Korea is founded in the south; it is presided by Rhee Syngman from 1948 to 1960 September 9, 1948 The Democratic People’s Republic of Korea is founded in the north December 1, 1948 The National Security Act is enacted June 25, 1950 The Korean War begins following North Korea’s invasion of the South 174 Chronology

July 7, 1952 The Constitution of the Republic of Korea is revised July 27, 1953 The Armistice Agreement is signed at Panmunjŏ n November 29, 1954 The Constitution of the Republic of Korea is revised April 1960 April Student Revolution and fall of Rhee Syngman April 19, 1960 The Second Republic is established June 15, 1960 The Constitution of the Republic of Korea is revised November 29, 1960 The Constitution of the Republic of Korea is revised May 16, 1961 General Park Chung-hee seizes power as a result of a military coup d’é tat May 20, 1961 The Korean Central Intelligence Agency is founded July 3, 1961 The Anti-Communist Act is enacted December 26, 1962 The Constitution of the Republic of Korea is revised December 27, 1963 The Third Republic is established; it is presided by Park Chung-hee from 1963 to 1972 January 21, 1968 North Korean commandos carry out a raid against the Blue House; failed attempt at assassinating Park Chung-hee October 21, 1969 The Constitution of the Republic of Korea is revised July 4, 1972 North-South Joint Communiqué December 27, 1972 The Constitution of the Republic of Korea is revised (Yusin constitution) and the Fourth Republic established; it is presided by Park Chung-hee from 1972 to 1979 October 26, 1979 Park Chung-hee is assassinated by the chief of his security service December 12, 1979 General Chun Doo-hwan seizes power as a result of a military coup d’ é tat May 17, 1980 Martial law is declared nationwide Chronology 175

May 18–27, 1980 Kwangju uprising and repression October 27, 1980 The Constitution of the Republic of Korea is revised December 12, 1980 The Anti-Communist Act merges with the National Security Act March 3, 1981 The Fifth Republic is established; it is presided by Chun Doo-hwan from 1981 to 1987 April 8, 1981 The Agency for National Security Planning replaces the Korean Central Intelligence Agency October 9, 1983 North Korean agents carry out a failed attempt at assassinating Chun Doo-hwan in Rangoon June 1987 June Democracy Movement June 29, 1987 Roh Tae-woo’s Eight-Point Declaration August 3–31, 1987 Eight-Member Party Talks to revise the constitution October 29, 1987 The Constitution of the Republic of Korea is revised and the Sixth Republic established November 29, 1987 The Korean Air Flight 858 is destroyed in mid-air by a bomb planted by two North Korean agents December 16, 1987 Victory of Roh Tae-woo in the presidential elections September 1, 1988 The Constitutional Court of Korea begins to operate January 22, 1990 The ruling party of Roh Tae-woo and the opposition party of Kim Young-sam merge May 31, 1991 The National Security Act is revised September 17, 1991 The two Koreas gain separate membership to the United Nations December 13, 1991 The Inter-Korean Agreement on Reconciliation, Non-Agression, Exchange, and Cooperation is signed December 18, 1992 Victory of Kim Young-sam in the presidential elections December 3, 1995 Chun Doo-hwan and Roh Tae-woo are arrested 176 Chronology

August 26, 1996 Chun Doo-hwan and Roh Tae-woo are sentenced to death and life imprisonment by the Seoul District Court December 19, 1997 Victory of Kim Dae-jung in the presidential elections December 22, 1997 Chun Doo-hwan and Roh Tae-woo are pardoned January 22, 1999 The National Intelligence Service replaces the Agency for National Security Planning June 13–15, 2000 First inter-Korean summit between Kim Jong-il and Kim Dae-jung in Pyongyang December 19, 2002 Victory of Roh Moo-hyun in the presidential elections June 10, 2003 North Korea withdraws from the Non- Proliferation Treaty July 31, 2003 The pledge to abide by the law is abolished March 12, 2004 A motion to impeach Roh Moo-hyun is adopted by the National Assembly and later rejected by the Constitutional Court of Korea September 5, 2004 Roh Moo-hyun publicly advocates for the abolition of the National Security Act October 9, 2006 North Korea’s first nuclear test October 2–4, 2007 Second inter-Korean summit between Kim Jong-il and Roh Moo-hyun in Pyongyang December 19, 2007 Victory of Lee Myun-bak in the presidential elections May 25, 2009 North Korea’s second nuclear test December 19, 2012 Victory of Park Geun-hye in the presidential elections February 12, 2013 North Korea’s third nuclear test December 19, 2014 The Unified Progressive Party is constitutionally dissolved

N O T E S

1 Interrogating Constitutional Justice: Contingency and Ambivalence of the South Korean Court’s Role as Guardian of the Constitution

1 . See, for instance, Tom Ginsburg, ed., Legal Reform in Korea (London: Routledge Curzon, 2004); Jongryn R. Mo and David W. Brady, eds., The Rule of Law in South Korea (Stanford: Hoover Institution Press, 2009); Dae-Kyu Yoon, Law and Democracy in South Korea: Democratic Development since 1987 (Boulder: Westview Press; Seoul: Kyungnam University Press, 2010). 2 . Tom Ginsburg, “The Constitutional Court of Korea and the Judicialization of Korean Politics,” in New Courts in Asia, ed. Andrew Harding and Penelope Nicholson (London: Routledge, 2010), p. 145. 3 . James M. West and Edward J. Baker, “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence,” Harvard Human Rights Yearbook 1 (1988): 135–178. 4 . Ran Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts,” Annual Review of Political Science 11, no. 1 (2008): 94. Constitutional courts may be divided into two categories: supreme courts in charge of reviewing the constitutionality of laws while also serving as courts of last appeal (like the U.S. Supreme Court or the Supreme Court of Israel), and specialized constitutional courts (such as the Federal Constitutional Court of Germany, the Constitutional Council of the French Republic, and the Constitutional Court of Korea). 5 . See, for instance, Jibong Lim, “The Korean Constitutional Court, Judicial Activism, and Social Change,” in Legal Reform in Korea , p. 18; Jongcheol Kim and Jonghyun Park, “Causes and Conditions for Sustainable Judicialization of Politics in Korea,” in The Judicialization of Politics in Asia , ed. Bj örn Dressel (New York: Routledge, 2012), pp. 37–55. 178 Notes

6 . See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003); Ran Hirshl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004); Gretchen Helmke and Julio Rí os-Figueroa, eds., Courts in Latin America (Cambridge: Cambridge University Press, 2011). 7 . John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York: Oxford University Press, 1991), p. 219. 8 . The idea of this incompatibility was classically formulated in the 1960s by South Korean legal scholar Hahm Pyong-Choon. Pyong-Choon Hahm, Korean Political Tradition and Law: Essays in Korean Law and Legal History (Seoul: Hollym, 1967). For a critique of Hahm, see Kun Yang, “Law and Society Studies in Korea: Beyond the Hahm Theses,” Law and Society Review 23, no. 5 (1989): 891–902. 9 . Jang-Jip Choi, “The Fragility of Liberalism and its Political Consequences in Democratized Korea,” Asea Yŏ ngu 52, no. 3 (2009): 261. 10 . William Shaw, ed., Human Rights in Korea: Historical and Policy Perspectives (Cambridge, MA: Harvard University Press, 1991). 11 . John Ferejohn and Pasquale Pasquino, “Constitutional Adjudication: Lessons from Europe,” Texas Law Review 82, no. 7 (2004): 1671–1704. 12 . See, for instance, Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge: Cambridge University Press, 2005); Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007); Tom Ginsburg and Tamir Moustafa, eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008). 13 . Marie Seong-Hak Kim, “Constitutional Jurisprudence and the Rule of Law: Revisiting the Courts in Yusin Korea (1972–1980),” Hague Journal on the Rule of Law 5, no. 2 (2013): 178–203. 14 . As stressed by Jon Elster, “constitution-making tends to occur in waves.” The first wave that he identifies took place between 1780 and 1791 in “various American states, the United States, Poland, and France.” The next waves respectively followed the 1848 revolutions in Europe, the end of World Wars I and II, the breakup of the French and British colonial empires, the fall of dictatorships in Southern Europe during the mid-1970s and across Eastern Europe, South America, and Asia in the 1980s. Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal 45, no. 2 (1995): 368–369. 15 . For details on the making of the 1948 constitution, see John Kiechiang Oh, Korea: Democracy on Trial (Ithaca, NY: Cornell University Press, 1968), pp. 11–22, and Gregory Henderson, “Constitutional Changes from the First to the Sixth Republics: 1948–1987,” in Political Change in South Korea , ed. Ilpyong Kim and Young Whan Kihl (New York: Paragon House, 1988), pp. 25–26. According to Henderson, “the framers of the [1948] constitution numbered some thirty in a Constitution Drafting Committee headed by constitutional law expert, Dr. Yu Notes 179

Chin-o. They were aware of the old and new (1947) Japanese constitutions, the KILA [Korean Interim Legislative Assembly] draft, the US, the Weimar, and other constitutions. US Military Government experts, though competent and available for consultation, were consulted very little and were counseled not to give unsolicited advice” (ibid). On the figure of Yu Chin-o (Yu Chino) who drafted the 1948 text, see Bruce Cumings, The Origins of the Korean War, Vol.2: The Roaring of the Cataract, 1947 – 1950 (Princeton, NJ: Princeton University Press, 1990), p. 223. 16 . The so-called Socialist Constitution (sahoeju ŭ i h ǒ np ǒ p), which was enacted in 1972 registered the fact that Kim Il-sung had emerged as the unparalleled leader in the struggle for absolute power over North Korea. The new text also incorporated both chuch ’e ideology (or self-reliance) and the complete abolition of private ownership. See Dae-Kyu Yoon, “The Constitution of North Korea: Its Changes and Implications,” Fordham International Law Journal 27, no. 4 (2003): 1289–1305. The North Korean constitution was further modified in 1992, 1998, and 2009. 17 . Jang-Jip Choi, Democracy after Democratization: The Korean Experience (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012), p. 48. For an overview of South Korea’s constitutional history, see Henderson, “Constitutional Changes,” pp. 22–43. 18 . The scope of the amendment process, however, presented major differences among these cases. For instance, “the Hungarian Constitution [of 1949] was continuously amended throughout 1989 and 1990, until approximately 95 percent of the clauses had been rewritten.” Jon Elster, “Constitutionalism in Eastern Europe: An Introduction,” University of Chicago Law Review 58, no. 2 (1991): 462. By contrast, “in Chile we observed a rather moderate and gradual process of amendment” of the so-called Pinochet’s constitution of 1980, “designed to maintain the privileges of specific groups (right-wing parties and the military).” Claudio Fuentes, “A Matter of the Few: Dynamics of Constitutional Change in Chile, 1990–2010,” Texas Law Review 89, no. 7 (2011): 1749. 19 . See, for instance, Donald L. Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge: Cambridge University Press, 2013). 20 . Jon Elster, “Executive-Legislative Relations in Three French Constitution- Making Episodes,” in Revolusjon og Resonnement , ed. Ø ystein Rian (Oslo: Norwegian University Press, 1995), p. 69. 21 . Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6, no. 1 (1957): 279–295; Martin M. Shapiro, “Political Jurisprudence,” Kentucky Law Journal 52, no. 1 (1964): 294–345. 22 . Melissa Schwartzberg, Democracy and Legal Change (Cambridge: Cambridge University Press, 2007), p. 2. 23 . Ibid., pp. 190–191. 24 . Fran çois Ewald, “Une exp é rience foucaldienne: Les principes g én é raux du droit,” Critique 42, no. 471–472 (1986): 788–793. 180 Notes

25 . Hirschl, Towards Juristocracy. 26 . Ibid., p. 54. 27 . Ginsburg, Judicial Review. 28 . Choi, Democracy after Democratization, p. 100. 29 . Ibid., p. 5. Choi Jang-Jip’s insightful analysis is particularly useful to distinguish between two processes and temporalities that account for the tension between democracy and liberalism in South Korea: in the short term, the modalities of the 1987 change of regime are responsible for the “conservative bias,” which continues to structure South Korean democracy to date; but in the long term, a shared illiberalism has characterized both the right and the left since 1945 given their common ideological identification with nationalism. 30 . Peter A. Hall and Rosemary C. R. Taylor, “Political Science and the Three New Institutionalisms,” Political Studies 44, no. 5 (1996): 936–957. 31 . One of the seminal works in the field of comparative judicial politics is Alec Stone Sweet’s study of the French Constitutional Council. Alec Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992). 32 . Ran Hirschl, “The Realist Turn in Comparative Constitutional Politics,” Political Research Quarterly 62, no. 4 (2009): 825. 33 . Ibid., p. 826. 34 . Ginsburg, Judicial Review , p. 23. 35 . See Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000), p. ix. For the initial formulation of constitutionalism as precommitment, see Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press, 1979); and for a collective exploration of the theme, Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1993). 36 . Jon Elster, “Don’t Burn Your Bridge before You Come to It: Some Ambiguities and Complexities of Precommitment,” Texas Law Review 81, no. 7 (2003): 1794. 37 . Paul Pierson, “The Limits of Design: Explaining Institutional Origins and Change,” Governance 13, no. 4 (2000): 475. 38. The work of Terry Moe embodies a notable exception to rational choice theories’ disregard for the fundamental contingency that accompanies institutional design. See, for instance, Terry Moe, “Power and Political Institutions,” Perspectives on Politics 3, no. 2 (2005): 215–233. 39 . Elster, Ulysses Unbound , p. 171. 40 . Ibid. 41 . Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). 42 . Patricia Goedde, “Lawyers for a Democratic Society (Minbyun ): The Evolution of its Legal Mobilization Process since 1988,” in South Korean Social Movements : From Democracy to Civil Society , ed. Gi-Wook Shin and Paul Y. Chang (New York: Routledge, 2011), pp. 231–233. Notes 181

43 . Elster, “Constitutionalism in Eastern Europe,” p. 465. 44 . Namhee Lee, “The South Korean Student Movement: Undongkwǒ n as a Counterpublic Sphere,” in Korean Society: Civil Society, Democracy, and the State , ed. Charles K. Armstrong (London: Routledge, 2007), p. 120. 45 . Stephen Ellmann, “Struggle and Legitimation,” Law and Social Inquiry 20, no. 2 (1995): 339–348. 46 . Jacques Ranci è re, Disagreement: Politics and Philosophy (Minneapolis: University of Minnesota Press, 1999), pp. 109–110. 47 . Ibid., p. xii. 48 . It should be underlined that the separation drawn by Ranci è re between political disagreement and constitutional dispute is not a matter of intrinsic incompatibility, as a lawsuit—like “an election, a strike, a demonstration—can give rise to politics or not give rise to politics” (ibid., p. 32). 49 . All the court’s decisions can be found on its Korean web site ( http://www.ccourt. go.kr/cckhome/kor/main/index.do ), whose English version makes available fully or partially translated rulings ( http://english.ccourt.go.kr/cckhome/eng/index. do ). The latter have also been reprinted in several of the institution’s publications, mainly its 2008 report entitled Twenty Years of the Constitutional Court of Korea , which covers the period from 1988 to 2008, as well as the Constitutional Court Decisions Volume I (1998–2004), Volume II (2005–2008), 2009 , 2010 , 2011 , and 2012 . 50 . Statistics of the Constitutional Court of Korea from the court’s English web site, http://english.ccourt.go.kr/cckhome/eng/decisions/caseLoadStatic/caseLoad Static.do (accessed February 19, 2015). All the figures reported in the subsequent paragraphs are extracted from the court’s database, accessible on the English and Korean versions of its web site. 51 . Research Institute of the Constitutional Court of Korea, personal communication, September 2012. 52 . The attitudinal model postulates that the voting patterns of judges translate their personal preferences. See Glendon A. Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946 – 1963 (Evanston: Northwestern University Press, 1965); Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993). The strategic approach to judicial decision-making sees judges’ choices as the result of calculated interactions among themselves as well as between the court and the other branches of government. See Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964); Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: CQ Press, 1998). 53 . Yves Dezalay and Bryant G. Garth, “International Strategies and Local Transformations: Preliminary Observations of the Position of Law in the Field of State Power in Asia, South Korea,” in Raising the Bar: The Emerging Legal Profession in Asia, ed. William P. Alford (Cambridge, MA: Harvard University Press, 2007), pp. 94–96. 182 Notes

2 Transitioning by Amendment: The 1987 Revision of Constitutional Norms and Institutions

1 . “Excerpts from Speech by Seoul Party Chief,” New York Times, June 30, 1987. 2 . See table 1.1 in Chapter One . 3 . According to a legend recorded in the thirteenth century, the first Korean kingdom was founded in 2,333 BC by Tan’gun, a prince of heavenly descent. This narrative was part of an effort to legitimize the kingdom of Kory ŏ (935–1392) and the ancientness of its origins vis-à -vis the Chinese Empire. The mythical birth of the Korean nation is celebrated every year on October 3, as the National Foundation Day. 4 . The shaping of the nationalist discourse in terms of minjok , that is to say the people as “race,” or Korean nationalism defined in terms of ethnic identity, emerged at the end of the nineteenth century but only fully imposed itself with the construction of Korean identity in the discourses of the colonial era (i.e.,, in both colonial- ist and anticolonialist discourses). See Gi-Wook Shin, Ethnic Nationalism in Korea: Genealogy, Politics, and Legacy (Stanford: Stanford University Press, 2006). 5 . Michael Robinson, Cultural Nationalism in Colonial Korea: 1920 – 1925 (Seattle: University of Washington Press, 1988). 6 . Immediately after the incident, “estimates of casualties varied from the government’s figure of 191 killed (including 23 soldiers), to claims by dissidents that 2,000 or more perished.” James M. West, “Martial Lawlessness: The Legal Aftermath of Kwangju,” Pacific Rim Law and Policy Journal 6, no. 1 (1997): 93. 7 . Henry Em, The Great Enterprise: Sovereignty and Historiography in Modern Korea (Durham: Duke University Press, 2013), p. 16. 8 . Namhee Lee, The Making of Minjung : Democracy and the Politics of Representation in South Korea (Ithaca, NY: Cornell University Press, 2007), pp. 295–296. 9 . In 1986, Chun agreed to the revision of the 1980 constitution but announced on April 13, 1987, that the talks would be suspended until after the 1988 Seoul Olympics. Gregory Henderson, “Constitutional Changes from the First to the Sixth Republics: 1948–1987,” in Political Change in South Korea , ed. Ilpyong Kim and Young Whan Kihl (New York: Paragon House, 1988), pp. 38–39. 10 . Jung-Kwan Cho, From Authoritarianism to Consolidated Democracy in South Korea (PhD diss., Yale University, 2000), p. 251. 11 . Jung-Kwan Cho, “The Politics of Constitution-Making during the 1987 Democratic Transition in South Korea,” Korea Observer 35, no. 2 (2004): 182–183. 12 . During the constitutional negotiations of August 1987, the ruling party of Chun and Roh, who held prime responsibility for the Kwangju massacre, and the opposition camp agreed that “neither the Fifth Republic nor the Kwangju struggles would be cited, and the preamble would convey the people’s right to resist by invoking the April 1960 revolution” (ibid., p. 186). 13 . Young Whan Kihl, “South Korea’s Search for a New Order: An Overview,” in Political Change in South Korea , p. 7. Notes 183

14 . Michael Robinson, Korea ’s Twentieth-Century Odyssey: A Short History (Honolulu: University of Hawai‘i Press, 2007), p. 167. 15 . Western languages translate as “reunification” what in Korean is only expressed as “unification” (t’ongil), similarly to Chinese where the word tongyi is used by both the People’s Republic of China and the Republic of China (Taiwan). See Fran çoise Mengin, Fragments of an Unfinished War: Taiwanese Entrepreneurs and the Partition of China (London: Hurst, 2015), p. 2. 16 . Dae-Kyu Yoon, Law and Democracy in South Korea: Democratic Development since 1987 (Boulder: Westview Press; Seoul: Kyungnam University Press, 2010), p. 259. 17 . Ibid., p. 261. 18 . Namhee Lee, “Anticommunism, North Korea, and Human Rights in South Korea: ‘Orientalist’ Discourse and Construction of South Korean Identity,” in Truth Claims: Representation and Human Rights , ed. Mark Philip Bradley and Patrice Petro (New Brunswick: Rutgers University Press, 2002), p. 48. 19 . “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (United States Declaration of Independence, July 4, 1776). 20 . Robinson, Korea ’s Twentieth-Century Odyssey , p. 120. “After the division, 80% of heavy industry, 76% of mining, and 92% of electricity-generating capacity lay in the North, while light manufacturing and agriculture dominated in the South. The North Koreans literally turned off the electricity in the South in 1948, but even before the Korean War the South had faced serious power shortages. Its agricultural production could not meet the food requirements of the population, and the country survived on bulk grain shipments from the United States into the 1960s” (ibid.). 21 . Charles K. Armstrong, Tyranny of the Weak: North Korea and the World, 1950 – 1992 (Ithaca, NY: Cornell University Press, 2013). 22 . U.S. Congressional Research Service, North Korean Provocative Actions: 1950 – 2007 (Washington, DC: U.S. Library of Congress, 2007). 23 . Bernard Manin, “The Emergency Paradigm and the New Terrorism,” in Les usages de la s é paration des pouvoirs , ed. Sandrine Baume and Biancamaria Fontana (Paris: Michel Houdiard, 2008), p. 137. Although the image that can be restituted of the Roman dictatorship is necessarily a reconstructed one, it can be described as a delegation of undivided authority, for a temporary period of time (usually six months), and with the purpose that a specified task be accomplished by the individual in charge. According to Bernard Manin, “no emergency institution has attracted more attention than the Roman dictatorship; it has been considered a model of constitutional emergency powers by a long tradition of writers ranging from Machiavelli and Rousseau to Clinton Rossiter and Carl Friedrich in recent times” (ibid.) 24 . Bernard Manin argues that the office of dictator presented three important characteristics always recurring in subsequent constitutional devices: (1) authorizing a deviation from ordinary norms (2) which is time-bounded, and (3) subject to 184 Notes

special conditions designed to ensure that circumstances necessitate such a deviation. These conditions can take the form of ex ante, continuing, or a posteriori controls. In the case of the Roman Republic, control was exercised ex ante by the Senate, which would instruct the consuls to appoint the to-be dictator. This means that the dictator was not he who decided on the exception but instead had its power externally conferred (ibid., p. 158). 25 . Michel Troper, Le droit et la n é cessit é (Paris: Presses Universitaires de France, 2011), p. 106. 26 . Cho, “The Politics of Constitution-Making,” p. 189. 27 . Article 60, section 2, of the Constitution of the Republic of Korea. Under article 2, section 2, of the U.S. Constitution, “the Congress shall have power to declare war,” a provision that has been seldom respected in American history. 28 . Sang-Hun Choe, “U.S. and South Korea Agree to Delay Shift in Wartime Command,” New York Times , October 24, 2014. 29 . Cho, “The Politics of Constitution-Making,” p. 186. 30 . Ibid., p. 183. 31 . Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2008), p. 82. 32 . Cho, “The Politics of Constitution-Making,” p. 190. 33 . Ibid., p. 194. 34 . “Amendments to the Constitution for the extension of the term of office of the President or for a change allowing for the reelection of the president shall not be effective for the president in office at the time of the proposal for such amendments to the Constitution” (Article 128, section 2, of the Constitution of the Republic of Korea). 35 . Yoon, Law and Democracy , p. 19. 36 . Ibid. 37 . Ibid., p. 27. Indeed, “none of the three prospective candidates was a sure bet to win. Everyone knew this. For each candidate to minimize the risk of not gaining office, a compromise would have to be reached. This ‘compromise’ came in the form of constitutional reform, that is, the amendment that would restrict a president to a single five-year term. Thus whoever won would be out of the running come the next election” (ibid.). 38 . Kim Dae-jung announced his split candidacy on October 28, 1987, making official his earlier rupture with Kim Young-sam. 39 . Article 111, section 2, and article 112, section 1, of the Constitution of the Republic of Korea. 40 . Article 111, sections 2 and 3, of the Constitution of the Republic of Korea. 41 . “The president of the Constitutional Court shall be appointed by the President from among the Justices with the consent of the National Assembly” (Article 111, section 4, of the Constitution of the Republic of Korea). 42 . Research Institute of the Constitutional Court of Korea, personal communication, September 2012. 43 . It is in the midst of this institutional crisis that I conducted fieldwork at the Research Institute of the Constitutional Court of Korea in September 2012. The Notes 185

wave of appointments that took place at the end of that month, with the inauguration of five new justices, brought an end to the stalemate. 44 . Constitutional Court of Korea, Twenty Years , p. 111. 45 . “The Constitutional Court shall have jurisdiction over the following matters: 1. The Constitutionality of a law upon the request of the courts; 2. Impeachment; 3. Dissolution of political party; 4. Competence disputes between State agencies, between State agencies and local governments, and between local governments; and 5. Constitutional complaint as prescribed by Act” (Article 111 of the Constitution of the Republic of Korea). The top four attributions were already those granted to the constitutional court of 1960. 46 . Article 1 of the Constitutional Court Act. 47 . Let us recall that the two Kims competed separately in the presidential election of December 1987, enabling the victory of Roh Tae-woo. 48 . Marbury v. Madison , 5 U.S. 137 (1803). 49 . Constitutional Court of Korea, Twenty Years , p. 95. 50 . “If the motion made under Article 41 (1) for adjudication on constitutionality of statutes is rejected [by an ordinary court], the party may file a constitutional complaint with the Constitutional Court. In this case, the party may not repeatedly move to request for adjudication on the constitutionality of statutes for the same reason in the procedure of the case concerned” (Article 68, section 2, of the Constitutional Court Act). 51 . Although article 68, section 2, is “categorized as a constitutional petition, it is no more than an initiation to review the constitutionality of law.” Constitutional petitions in the usual sense are covered by article 68, section 1, of the Constitutional Court Act. Yoon, Law and Democracy , p. 153. 52 . Kang-Kook Lee, Hye-Jin Kim, and Yoo-Min Won, “La cour constitutionnelle de la R épublique de Coré e,” Les nouveaux cahiers du Conseil constitutionnel 37 (2012): 214. As for the Federal Constitutional Court of Germany, it has “emphasized its limited role in the review of the decisions of the ordinary courts, explaining that it is charged only with ensuring that constitutional standards are observed in the otherwise fully independent activities of the ordinary courts.” Donald P. Kommers and Russel A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 2012), p. 198. 53 . See 2 Korean Constitutional Court Report (honp ǒ p chaep’anso pallyejip) 200, 89Hun-Ma220, June 25, 1990, in Constitutional Court of Korea, Twenty Years , p. 171. 54 . See respectively 2 KCCR 365, 89Hun-Ma178, October 15, 1990, and 4 KCCR 51, 91Hun-Ma111, January 28, 1992. 55 . 1 KCCR 31, 88Hun-Ma3, April 17, 1989. 56 . Yoon, Law and Democracy, p. 160. Since the revision of the Criminal Procedure Code enforced on January 1, 2008, it is now also possible to challenge such a decision before the higher court active in the same jurisdiction as the prosecutor. 57 . Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, CT: Yale University Press, 1986). 186 Notes

58 . Article 48 of the Constitutional Court Act. Constitutional justices can also be impeached as provided by article 112, section 3, of the Constitution of the Republic of Korea, and article 48, section 2, of the Constitutional Court Act. 59 . 16–1 KCCR 609, 2004Hun-Na1, May 14, 2004. 60 . Karl Loewenstein, “Militant Democracy and Fundamental Rights I,” American Political Science Review 31, no. 3 (1937): 417–432; “Militant Democracy and Fundamental Rights II,” American Political Science Review 31, no. 4 (1937): 638–658. 61 . As pointed out by Melissa Schwartzberg, the fear of “democratic autophagy”—or “the concern that democracy, perhaps through its tolerance of antidemocratic forces, will harbor the forces of its own destruction”—can be traced to Plato. Melissa Schwartzberg, Democracy and Legal Change (Cambridge: Cambridge University Press, 2007), p. 7. 62 . Loewenstein, “Militant Democracy and Fundamental Rights I,” pp. 423–424. 63 . John Ferejohn and Pasquale Pasquino, “The Law of Exception: A Typology of Emergency Powers,” International Journal of Constitutional Law 2, no. 2 (2004): 215. 64 . Pursuant to article 21 of the Basic Law for the Federal Republic of Germany, two cases of dissolution were rendered in the early years of the German constitutional court: in 1952, against the Socialist Reich Party, openly neo-Nazi (2 BVerfGE 1 [1952]), and in 1956, against the Communist Party of Germany (5 BVerfGE 85 [1956]). 65 . Article 23, section 2, of the Constitutional Court Act. 66 . 1 KCCR 69, 88Hun-Ka5, July 14, 1989. 67 . Constitutional Court of Korea, Twenty Years , p. 132. 68 . Research Institute of the Constitutional Court of Korea, personal communication, September 2012. 69 . Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), p. 226. 70 . Constitutional Court of Korea, Twenty Years , p. 100. 71 . Christoph Sch önberger, “La constitution allemande, la cour de Karlsruhe, et le ‘patriotisme constitutionnel’” (paper presented at La constitution en question: Concepts et conceptions à l ’ é preuve de l ’ é volution du droit, contributions des é coles allemandes et autrichiennes , Institut Historique Allemand, Paris, January 18, 2013). 72 . Dred Scott v. Sandford , 60 U.S. 393 (1857). The Missouri Compromise, in addition to admitting Missouri to the Union as a slave state and Maine as a free state, drew a line across the American territory north of which slavery was “forever prohibited.” In 1857, however, the U.S. Supreme Court ruled that Congress lacked the power to exclude slavery from certain parts of the territory. 73 . James M. West and Edward J. Baker, “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence,” Harvard Human Rights Yearbook 1 (1988): 165. 74 . According to Tom Ginsburg, “this proposal . . . was withdrawn due to strong public pressure.” Ginsburg, Judicial Review , p. 223. Notes 187

3 Post-Authoritarian Contentious Politics: Constitutional Empowerment from Below

1 . Pierre Lascoumes, “Ruptures politiques et politiques pé nitentiaires: Analyse comparative des dynamiques de changement institutionnel,” D é viance et soci é t é 30, no. 3 (2006): 410. 2 . Ibid. 3 . Andrea Matles Savada and William Shaw, eds., South Korea: A Country Study (Washington, DC: U.S. Library of Congress, 1990), p. 66. 4 . Hyuk-Rae Kim, State-Centric to Contested Social Governance in Korea: Shifting Power (London: Routledge, 2013), p. 62. 5 . U.S. Congressional Research Service, North Korean Provocative Actions: 1950 – 2007 (Washington, DC: U.S. Library of Congress, 2007). As detailed in the Chapter Two, several provocative actions have been undertaken by the North since 1987 but the correlation between the intensity of the North Korean menace and the enforcement patterns of the National Security Act appears at best imperfect. 6 . William Shaw, ed., Human Rights in Korea: Historical and Policy Perspectives (Cambridge, MA: Harvard University Press, 1991); Kuk Cho, “Tensions Between the National Security Law and Constitutionalism in South Korea,” Boston University International Law Journal 15, no. 1 (1997): 125–174; Jos é Alem án, “Protest and Democratic Consolidation: A Korean Perspective,” International Journal of Korean Studies 9, no. 1 (2005): 71–90; Taehyun Nam, “The Broken Promises of Democracy: Protest-Repression Dynamics in Korea, 1990–1991,” Mobilization: An International Journal 11, no. 4 (2006): 427–442; Gi-Wook Shin, Paul Y. Chang, Jung-Eun Lee, and Sookhyung Kim, South Korea ’s Democracy Movement (1970 – 1993): Stanford Korea Democracy Project Report (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2007); Jong Bum Kwon, “Exorcizing the Ghosts of Kwangju: Policing Protest in the Post-Authoritarian Era,” in South Korean Social Movements : From Democracy to Civil Society , ed. Gi-Wook Shin and Paul Y. Chang (New York: Routledge, 2011), pp. 58–74; Jung-Eun Lee, “Categorical Threat and Protest Policing: Patterns of Repression before and after Democratic Transition in South Korea,” Journal of Contemporary Asia 43, no. 3 (2013): 475–496. 7 . National Human Rights Commission of Korea, Report on the Situation of Human Rights Arising from the Application of the National Security Act [ Kukka poanpŏ p ch ŏ gyongsa es ŏ nat ’anan inkwŏn silt ’ae ] (Seoul: Minjuhwa silch’ ŏ n kajok undong hyŏb ŭ ihoe, 2004). Other notable Korean sources include human rights lawyer Park Won-Soon (Pak Wŏ nsun)’s three-volume study of the security legislation: A Study of the National Security Act [Kukka poanpŏp yŏnʾgu] (Seoul: Yŏksa pip’yŏngsa, 1989–1992). 8 . National Human Rights Commission, Report on the Situation of Human Rights , p. 36. 9 . Ibid., pp. 44 and 66. 188 Notes

10 . Of the total votes, 36.6 percent went to Roh Tae-woo, 28 percent to Kim Young- sam, 27 percent to Kim Dae-jung, 8.1 percent to Kim Jong-pil, and 0.2 percent to Shin Jung-il (Sin Jŏ ngil). 11 . Sunhyuk Kim, “State and Civil Society in South Korea’s Democratic Consolidation: Is the Battle Really Over?,” Asian Survey 37, no. 12 (1997): 1139. In December 1992, 42 percent of the vote went to Kim Young-sam against 33.8 percent to Kim Dae-jung. 12 . Kim Dae-jung won 40.3 percent of the vote, against 38.7 percent to the conservative candidate Lee Hoi-chang (Yi Hoech’ang). 13 . Kim Jong-pil was Park’s nephew by marriage. He participated in the May 16, 1961, coup before serving as head of the Korean Central Intelligence Agency after its founding in 1961 and as prime minister between 1971 and 1975. 14 . Kim, “State and Civil Society,” p. 1137. 15 . Young Whan Kihl, “South Korea’s Search for a New Order: An Overview,” in Political Change in South Korea , ed. Ilpyong Kim and Young Whan Kihl (New York: Paragon House, 1988), p. 12. 16 . Kim, State-Centric to Contested Social Governance ; Sunhyuk Kim, The Politics of Democratization in Korea: The Role of Civil Society (Pittsburg: University of Pittsburg Press, 2000). 17 . Namhee Lee, “From Minjung to Simin : The Discursive Shift in Korean Social Movements,” in South Korean Social Movements , pp. 41–57. 18 . Ibid. 19 . Nancy Abelmann, Echoes of the Past, Epics of Dissent: A South Korean Social Movement (Berkeley: University of California Press, 1996), p. 244. 20 . Stephan Haggard and Robert Kaufman, “The Political Economy of Democratic Transitions,” Comparative Politics 29, no. 3 (1997): 263–283. 21 . Lee, “Categorical Threat and Protest Policing,” pp. 486–487. 22 . Abelmann, Echoes of the Past , p. 23. 23 . Hagen Koo, “The Dilemmas of Empowered Labor in Korea: Korean Workers in the Face of Global Capitalism,” Asian Survey 40, no. 2 (2000): 231. 24 . George E. Ogle, South Korea: Dissent Within the Economic Miracle (London: Zed Books, 1990). As noted by Ogle in his analysis of labor activism during the years 1987–1989, “intimidation, kidnappings and beatings are standard procedures used against union people” (ibid., p. 120). 25 . Amnesty International, Summary of Concerns and Recommendations to Candidates for the Presidential Elections in December 2002 (ASA 25/007/2002, London: Amnesty International, 2002). “Under Kim Dae-jung’s presidency, harassment and arrests of trade union leaders who organized strike action and demonstrations to protect their basic rights has continued. The trade unions were protesting against restructuring leading to mass redundancies, inadequate social welfare provision, failure to prosecute employers engaging in illegal termination of employment contracts and the lack of effective consultation between the government, employers and trade unions. At least 850 trade unionists were detained between Notes 189

February 1998 and October 2002 for their involvement in general strikes and other demonstrations” (ibid., pp. 7–8). 26 . Jang-Jip Choi, Democracy after Democratization: The Korean Experience (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012), p. 156. As pointed out by Bruce Cumings, “Kim Dae Jung has never been a radical, and has not had a strong base in labor for two reasons: first, until 1998 it was illegal for labor to involve itself in politics; second, over the years Kim has been much more a champion of the southwestern region and of small and medium business than he has of labor (and, of course, supporting labor was ticket to political oblivion in Korea’s McCarthyite milieu). It is true that he is more sympathetic to labor demands than previous leaders, and labor clearly prefers him to the past run of dictators. But that isn’t saying much, given the harsh anti-labor environment of the past fifty years.” Bruce Cumings, “Civil Society in West and East,” in Korean Society: Civil Society, Democracy, and the State , ed. Charles K. Armstrong (London: Routledge, 2007), p. 27. 27 . Amnesty International, Summary of Concerns and Recommendations 2002 , p. 3. 28 . There were 39 individuals imprisoned under the National Security Act in 2002, 24 in 2003, 11 in 2004, 4 in 2006, and 8 in 2008 according to Amnesty International. See respectively, Amnesty International, Summary of Concerns and Recommendations 2002 ; Amnesty of Political Prisoners: A Step in the Right Direction (ASA 25/002/2003, London: Amnesty International, 2003); Open Letter to All Leaders of Political Parties: An Important Duty to Revitalise Efforts to Fundamentally Repeal or Review the National Security Law (ASA 25/009/2004, London: Amnesty International, 2004); 2006 Elections to the Human Rights Council: Background Information on Candidate Countries (IOR 41/006/2006, London: Amnesty International, 2006); Repeal or Fundamentally Reform the National Security Law (ASA 25/011/2008, London: Amnesty International, 2008). 29 . Amnesty International, Human Rights Concerns in the Republic of Korea: Amnesty International Submission to the UN Universal Periodic Review (ASA 25/001/2012, London: Amnesty International, 2012), p. 4; Amnesty International, South Korea: National Security Law Continues to Restrict Freedom of Expression (ASA 25/001/2015, London: Amnesty International, 2015), p. 1. For instance, a blogger named Park Jung-geun (Pak Chŏ nggŭ n) was convicted in 2012 for having satirically resent North Korean propaganda posts on social media, including the message “Long Live Kim Jong-il.” See Sang-Hun Choe, “South Korean Gets Suspended Sentence in Twitter Case,” New York Times , November 21, 2012. 30 . Since Park Geun-hye’s inauguration, several affairs calling into question the new administration’s respect for democratic norms have broken out, concerning: the National Security Intelligence’s involvement in the December 2012 presidential elections after it was revealed that its agents mounted a mass campaign of slandering on the Internet against opposition candidates; the indictment of a Japanese journalist for defaming President Park; the arrest and conviction for treason of opposition lawmaker Lee Seok-ki (Yi S ŏ kki); and the subsequent dissolution of 190 Notes

the Unified Progressive Party with which Lee was affiliated, a case adjudicated by the Constitutional Court of Korea as evoked at the end of this chapter. 31 . “No citizen shall be prosecuted for an act which does not constitute a crime under the Act in force at the time it was committed, nor shall be placed in double jeopardy” (Article 13, section 1, of the Constitution of the Republic of Korea). 32 . Yves Dezalay and Bryant G. Garth, “International Strategies and Local Transformations: Preliminary Observations of the Position of Law in the Field of State Power in Asia, South Korea,” in Raising the Bar: The Emerging Legal Profession in Asia , ed. William P. Alford (Cambridge, MA: Harvard University Press, 2007). 33 . Minbyun, “Inheriting the Spirit of Korea’s First Human Rights Lawyers,” description of the association’s history and activities on its English web site, http://minbyuneng.prizma.co.kr/?page_id=186 (accessed March 4, 2015). 34 . Jae Won Kim, “The Ideal and the Reality of the Korean Legal Profession,” Asian- Pacific Law and Policy Journal 2, no. 1 (2001): 62. 35 . Ibid. 36 . See also Shin et al., South Korea ’s Democracy Movement , p. 90. 37 . Minbyun, “Inheriting the Spirit.” 38 . Shin et al., South Korea ’s Democracy Movement , p. 59. 39 . Ibid., p. 91. 40 . Ibid., p. 60. 41 . Matles Savada and Shaw, South Korea , p. 68. 42 . Charles K. Armstrong, Tyranny of the Weak: North Korea and the World, 1950 – 1992 (Ithaca, NY: Cornell University Press, 2013), pp. 265–66. 43 . Patricia Goedde, “Lawyers for a Democratic Society (Minbyun ): The Evolution of its Legal Mobilization Process since 1988,” in South Korean Social Movements, p. 231. 44 . Ibid. 45 . Ibid., pp. 228–229. 46 . Patricia Goedde, “From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea,” East Asia Law Review 4, no. 1 (2009): 75. Over time, this negative stigma abated as the association diversified in its composition and activities. A decade after its creation, Minbyun counted 550 members, which represented around 7 percent of the total population of lawyers numbering about 8,000 at the time. “Women account for 10 percent of Minbyun membership, which is a greater proportion than the percentage of women in the legal profession overall. Membership includes any attorney who works part-time (or even less) on social justice issues, so the number of those who work full-time voluntarily on social movement causes would be considerably less. Although many public interest lawyers are concentrated in Minbyun , it should be remembered that this is a professional association and that most of its members work in either small or large practices and offer their services on a pro bono basis” (ibid., p. 76). 47 . Patricia Goedde, How Activist Lawyers Mobilized the Law for Social and Political Change in South Korea: 1988 – 2007 (PhD diss., University of Washington, 2008), p. 27. Notes 191

48 . “The immediate former President shall become the Chairman of the Advisory Council of Elder Statesmen: Provided , That if there is no immediate former President, the President shall appoint the Chairman” (Article 90, section 2, of the Constitution of the Republic of Korea). 49 . Matles Savada and Shaw, South Korea, p. 67. 50 . The Democratic Liberal Party was renamed the New Korea Party (sin han’gukdang) in 1995, and became the Grand National Party (hannaradang) in 1997. In 2012, its name was changed to the Saenuri—or New Frontier—Party (saenuridang). 51 . Kuk Cho, “Transitional Justice in Korea: Legally Coping with Past Wrongs after Democratization,” Pacific Rim Law and Policy Journal 16, no. 3 (2007): 581. 52 . Ibid., pp. 581–582. 53 . Minbyun, “Inheriting the Spirit.” 54 . 7–1 KCCR 15, 94Hun-Ma246, January 20, 1995; 7–2 KCCR 697, 95Hun- Ma221, December 15, 1995; and 8–1 KCCR 51, 96Hun-Ka2, February 16, 1996. 55 . Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2008), p. 195. 56 . Minbyun, “Inheriting the Spirit.” 57 . Nicholas Kristof, “Seoul Indicts Ex-President on Bribery Charges,” New York Times , January 13, 1996. 58 . 7–2 KCCR 697, 95Hun-Ma221, December 15, 1995, in Constitutional Court of Korea, Twenty Years , pp. 266–267. 59 . Articles 12 and 13 of the Constitution of the Republic of Korea. 60 . 8–1 KCCR 51, 96Hun-Ka2, February 16, 1996, in Constitutional Court of Korea, Twenty Years , p. 269. 61 . Ibid., p. 270. 62 . Andrew Pollack, “New Korean Leader Agrees to Pardon of 2 Ex-Dictators,” New York Times , December 21, 1997. 63 . Gá b or Halmai and Kim Lane Scheppele, “Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past,” in Transitional Justice and the Rule of Law in New Democracies , ed. A. James McAdams (Notre Dame: University of Notre Dame Press, 1997), pp. 160–161. 64 . A. James McAdams, “Communism on Trial: The East German Past and the German Future,” in ibid., p. 244. 65 . Ibid., p. 255. 66 . Ibid. 67 . 7–1 KCCR 15, 94Hun-Ma246, January 20, 1995, in Constitutional Court of Korea, Twenty Years , p. 263. 68 . Cho, “Transitional Justice,” p. 589. 69 . Marie Seong-Hak Kim, “Constitutional Jurisprudence and the Rule of Law: Revisiting the Courts in Yusin Korea (1972–1980),” Hague Journal on the Rule of Law 5, no. 2 (2013): 197. 70 . 25–1 KCCR 180, 2010Hun-Ba70, March 21, 2013, http://english.ccourt.go.kr/ cckhome/eng/decisions/social/socialDetail.do (accessed February 11, 2015). The three decrees had already been invalidated by the Supreme Court of Korea in 2010. 192 Notes

71 . Melissa Schwartzberg, Democracy and Legal Change (Cambridge: Cambridge University Press, 2007). Schwartzberg demonstrates the ambiguity of German constitutional jurisprudence’s interpretation of the concept of human dignity, through which the court “has sacrificed the principle of development of personality for national security; it has upheld the reputations of the dead over artistic freedom; and it has restricted reproductive autonomy on behalf of the fetus” (ibid., p. 188). 72 . 26–2 KCCR 1, 2013Hun-Da1, December 19, 2014. While being the first dissolution case adjudicated by the Constitutional Court of Korea, this decision is not the first concerning political parties that the institution has rendered. For instance, the court ruled in 2006 against the registration of the minor Socialist Party (sahoedang) by upholding the requirements set by the Political Parties Act (chŏ ngdangpŏ p), originally enacted in 1962. These requirements prescribe that a political party, to qualify as such, must commit to “democratic organization and activities” as well as “procure an organization sufficient to participate in people’s political will-formation” by having local representation in at least five cities or provincial branches, and no less than 1,000 members in each of them. In its very short and unanimous decision, the court assimilated the Socialist Party to a regional organization that could be legitimately denied the status of a political party for failing to meet the above conditions. See 18–1 (A) KCCR 402, 2004Hun-Ma246, March 30, 2006, in Constitutional Court of Korea, Constitutional Court Decisions Volume II: 2005 – 2008 (Seoul: Constitutional Court of Korea, 2009), pp. 215–221. 73 . Sang-Hun Choe, “South Korea Disbands Party Sympathetic to North,” New York Times , December 19, 2014. 74 . According to an opinion poll conducted by the conservative newspaper Joong- ang Ilbo, 60 percent of the respondents supported the constitutional court’s decision to dissolve the UPP. See “Survey Finds Approval of UPP Ban,” Joongang Ilbo, December 22, 2014. For South Korean media coverage of the decision, see “The Constitutional Court’s Deadly Blow Against South Korea Democracy,” Hankyoreh , December 19, 2014; “Justice Kim Voices Only Opposition,” Korea Times , December 19, 2014; “Park Calls UPP Dissolution ‘Historical Decision,’” Korea Herald , December, 20, 2014; “Carter Center’s Misguided Statement on Seoul’s Human Rights,” Dong-a Ilbo , December 29, 2014; “A Balanced Ruling,” Joongang Ilbo , January 23, 2015.

4 Reviewing How the Enemy is Defined: From the Security of the State to the “Basic Order of Free Democracy”

1 . Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967). 2 . See respectively Jang-Jip Choi, Democracy after Democratization: The Korean Experience (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012), Notes 193

p. 48, and Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), p. 236. 3 . Article 1 of the 1948 version of the National Security Act. 4 . Article 1 of the 1960 version of the National Security Act. 5 . Article 2 of the 1980 version of the National Security Act. 6 . Article 2 of the National Security Act. 7 . Dae-Sook Suh, The Korean Communist Movement: 1918 – 1948 (Princeton, NJ: Princeton University Press, 1967), p. 132. 8 . “Given contemporary South Korea’s staunch anti-Communism, it is hard to imagine socialism’s popularity in the 1940s Korea. But in the period after the Liberation, socialists drew tremendous support from the landless, intellectuals, and factory workers.” Michael Robinson, Korea ’s Twentieth-Century Odyssey: A Short History (Honolulu: University of Hawai‘i Press, 2007), pp. 102–103. 9 . Gregory Henderson, “Human Rights in South Korea: 1945–1953,” in Human Rights in Korea: Historical and Policy Perspectives , ed. William Shaw (Cambridge, MA: Harvard University Press, 1991), p. 127. 10 . Bruce Cumings, The Origins of the Korean War, Vol.1: Liberation and the Emergence of Separate Regimes, 1945 – 1947 (Princeton, NJ: Princeton University Press, 1981). 11 . Namhee Lee, “Anticommunism, North Korea, and Human Rights in South Korea: ‘Orientalist’ Discourse and Construction of South Korean Identity,” in Truth Claims: Representation and Human Rights , ed. Mark Philip Bradley and Patrice Petro (New Brunswick: Rutgers University Press, 2002), p. 45. 12 . Henderson, “Human Rights,” p. 149. 13 . Ibid., p. 150. 14 . Lee, “Anticommunism, North Korea, and Human Rights,” p. 51. 15 . Jang-Jip Choi “Political Cleavages in South Korea,” in State and Society in Contemporary Korea , ed. Hagen Koo (Ithaca, NY: Cornell University Press, 1993), p. 22. “Whereas before the war, the South Korean state had a weak local base of support, the war gave the state an ideological basis for building its legitimacy. Anticommunism, articulated and experienced in everyday life, became the premier motif for ideological legitimization of the South Korean state” (ibid.) 16 . As pointed out by Hagen Koo, “the Korean state’s labor control had been more repressive than corporatist, more direct and physical than bureaucratic or ideological, and more blatantly anti-labor than subtle and disguised.” Hagen Koo, “Engendering Civil Society: The Role of the Labor Movement,” in Korean Society: Civil Society, Democracy, and the State , ed. Charles K. Armstrong (London: Routledge, 2007), p. 78. 17 . Seungsook Moon, Militarized Modernity and Gendered Citizenship in South Korea (Durham: Duke University Press, 2005), p. 2. 18 . As pointed out by Moon, while men’s military mobilization through conscription and economic mobilization as the primary labor force in the industrializing economy were “intimately intertwined,” “this combination contributed to the consolidation of the modern gender hierarchy, organized around the division of labor between man as provider and woman as housewife” (ibid., p. 12). 194 Notes

19 . Choi, Democracy after Democratization, p. 66. 20 . Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2008), p. 215. 21 . “Yi Hongnok py ŏ nhosa,” Law Times , May 2, 2003. That year, Yi was appointed to the National Human Rights Commission of Korea. 22 . Contrary to the practice of courts in which the parties lend their surnames to a case, claimants before the Constitutional Court of Korea are made anonymous (the middle syllable of their names is erased from the judgment). Lawyers, however, can be identified. 23 . Constitutional Court of Korea, Twenty Years , p. 215. 24 . Amnesty International, Prisoners Held for National Security Offences (ASA 25/25/91, London: Amnesty International, 1991), p. 6. 25 . 2 KCCR 49, 89Hun-Ka113, April 2, 1990, in Constitutional Court of Korea, Twenty Years , p. 215. 26 . Ibid., p. 216. As underlined in Chapter Two , a decision of partial constitutionality does not create an obligation for the legislature to amend the incriminated provisions but merely specifies the correct interpretation that has to be made of them. 27 . The “clear and present danger test” was introduced in US jurisprudence by the Schenck v. United States decision of 1919. In this case, Justice Oliver Wendell Holmes famously wrote for the unanimous court that: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenck v. United States , 249 U.S. 47 [1919]). Interestingly, the Constitutional Court of Korea did not choose to resort to the more recent standard elaborated by the U.S. Supreme Court in its Brandenburg v. Ohio ruling of 1969, which makes restrictions on the freedom of speech only possible in the event of an “imminent lawless action” (Brandenburg v. Ohio, 395 U.S. 444 [1969]). 28 . 2 KCCR 49, 89Hun-Ka113, April 2, 1990, in Constitutional Court of Korea, Twenty Years, p. 216. 29 . 2 BVerfGE 1 (1952), in John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York: Oxford University Press, 1991), p. 190. 30 . 2 KCCR 49, 89Hun-Ka113, April 2, 1990 (personal translation from the original Korean text). 31 . Ginsburg, Judicial Review in New Democracies, p. 226. 32 . This understanding of the national security situation not only appears uniform among justices in the case at hand but also throughout the court’s jurisprudence. Such consensus echoes the American and Israeli supreme courts’ largely uncon- tentious accounts of the respective terrorist threats under which they operate. 33 . “The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or Notes 195

rights shall be violated” (Article 37, section 2, of the Constitution of the Republic of Korea). 34 . 2 KCCR 49, 89Hun-Ka113, April 2, 1990 (personal translation). 35 . Constitutional Court of Korea, Twenty Years , p. 217. 36 . 4 KCCR 194, 90Hun-Ma82, April 14, 1992. 37 . As will be detailed in Chapter Six , the major actor involved in the investigation of activities falling under the National Security Act is the once omnipotent Agency for National Security Planning, formerly known as the KCIA until 1981 and as the National Intelligence Service since 1999. 38 . 4 KCCR 194, 90Hun-Ma82, April 14, 1992 (personal translation). 39 . 9–1 KCCR 578, 96Hun-Ka8, June 26, 1997. 40 . 14–2 KCCR 600, 2002Hun-Ka5, November 28, 2002. 41 . The Constitutional Court of Korea upheld the constitutionality of capital punishment in 1996 and 2010. See respectively 8–2 KCCR 537, 95Hun-Ba1, November 28, 1996, and 22–1(A) KCCR 36, 2008Hun-Ka23, February 25, 2010. Although the most recent executions in South Korea took place in December 1997, there is no official moratorium on executions and death sentences continue to be handed down. See Amnesty International, Human Rights Concerns in the Republic of Korea: Submission to the UN Universal Periodic Review (ASA 25/001/2012, London: Amnesty International, 2012), p. 5. 42 . Hamdi v. Rumsfeld , 542 U.S. 507 (2004); Rasul v. Bush , 542 U.S. 466 (2004); Hamdan v. Rumsfeld , 548 U.S. 557 (2006); Boumediene v. Bush , 553 U.S. 723 (2008). 43 . See, for instance, David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002); Nimer Sultany, “The Legacy of Justice Aharon Barak: A Critical Review,” Harvard International Law Journal 48, no. 43 (2007): 83–92; George Bisharat, “Courting Justice? Legitimation in Lawyering Under Israeli Occupation,” Law and Social Inquiry 20, no. 2 (1995): 349–405. 44 . The existence and substance of both rulings are mentioned at the end of articles 13 and 19 in the official version of the National Security Act to be found on South Korea’s official legal database. 45 . This is, for instance, true of the U.S. Supreme Court’s concluding judgment on enemy combatants held at Guá ntanamo, in which the majority warned that “this holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs” (Boumediene v. Bush , 553 U.S. 723 [2008]). 46 . James M. West and Edward J. Baker, “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence,” Harvard Human Rights Yearbook 1 (1988): 246. 47 . Ibid., p. 245. In the late 1980s, the ratio of lawyers to the overall population of South Korea was one per 27,000 inhabitants. By 2010, this ratio had improved to one per 5,178 inhabitants, a proportion that is still scarce compared to one to 265 in the United States, one to 326 in Brazil, one to 401 in Britain, or one to 593 in Germany. “Too Many Lawyers,” Korea Herald , December 9, 2010. 196 Notes

48 . West and Baker, “The 1987 Constitutional Reforms,” pp. 245–246. 49 . The system of fixed tenure and reappointment every ten years still exists, but it has not been considered a major impediment to the judiciary’s independence after the transition. Besides, it is more favored than resisted by judges themselves, since it allows them to leave the bench and finish their careers as attorneys, a more lucrative and less time-consuming profession in contemporary South Korean society. 50 . Dae-Kyu Yoon, Law and Political Authority in South Korea (Boulder: Westview Press, Seoul: Kyungnam University Press, 1990), p. 140. 51 . Between 1969 and 1972, “the courts on the whole went along with the executive branch, but sometimes they asserted judicial independence; and lived up to their proper role of curbing the executive branch” (ibid., p. 147). 52 . Constitutional Court of Korea, Twenty Years , p. 82. 53 . Ibid., p. 131. 54 . Supreme Court of Korea, 90 Do 2033, 1, May 31, 1992, in Kuk Cho, “Tensions Between the National Security Law and Constitutionalism in South Korea,” Boston University International Law Journal 15, no. 1 (1997): 170. Cho reports that two of the incriminated publications were entitled Basic Theory of Wage and America for Who? in the case at hand. 55 . Ibid., p. 169. 56 . The year 1994 witnessed a deterioration of the human rights situation marked by the “extensive use of the National Security Law to detain prisoners of conscience.” Amnesty International, South Korea: Summary of Amnesty International ’s Concerns (ASA 25/36/94, London: Amnesty International, 1994), p. 1. 57 . Cho, “Tensions Between the National Security Law and Constitutionalism,” p. 171. 58 . 9–2 KCCR 842, 96Hun-Ma172, December 24, 1997. 59 . Supreme Court of Korea, 95Nu1405, April 9, 1996, in Constitutional Court of Korea, Twenty Years , p. 533. 60 . 9–2 KCCR 842, 96Hun-Ma172, December 24, 1997, in ibid., p. 534. 61 . Ibid., p. 537. 62. The Uri Party was formed in November 2003 by Roh’s closest followers who seceded from the ruling Millennium Democratic Party, deemed overly resistant to the reforms advocated by the new administration. 63 . 16–1 KCCR 609, 2004Hun-Na1, May 14, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I: 1998 – 2004 (Seoul: Constitutional Court of Korea, 2006), pp. 289–341. This length corresponds to the translated English version of the ruling. 64 . Ibid., p. 297. 65 . Ibid., p. 296. 66 . Ibid., p. 337. 67 . Ibid., p. 339. 68 . See respectively 16–2(B) KCCR 1, 2004Hun-Ma554, October 21, 2004, and 13–2 KCCR 502, 2000Hun-Ma92, October 25, 2001. Notes 197

69 . Asian Center for Human Rights, Time To Go: NSL of Republic of Korea (ACHRF/39/2004, New Delhi: Asian Center for Human Rights, 2004), p. 1. 70 . Created in 2001, the National Human Rights Commission had recommended disposing of the security legislation to the chairman of the National Assembly and the Minister of Justice in August 2004. Its president Kim Chang-kuk (Kim Ch’angguk) then stated, that “the current National Security Law has caused constant disputes over its acts against human rights due to its arbitrary application and the shortfalls of its regulations themselves . . . Amendments on certain texts could not heal the human rights violations on a large scale done by the National Security Law” (ibid.). 71 . 16–2 KCCR 297, 2003Hun-Ba85, August 26, 2004. 72 . Jae-Sik Ha, “Top Court Says Security Law Is Still Necessary,” Joongang Ilbo , August 27, 2004. 73 . 16–2 KCCR 297, 2003Hun-Ba85, August 26, 2004 (personal translation). 74 . Ibid. (personal translation). 75 . The Supreme Court of Korea, 2004Do3212, August 30, 2004. 76 . Amnesty International, Open Letter to All Leaders, p. 2. 77 . Supreme Court of Korea, 96Do2696, May 5, 1997. 78 . Amnesty International, O p e n L e t t e r t o A l l L e a d e r s, pp. 2–3. See also “Hanchongnyon still an outlawed body,” Dong-a Ilbo , April 25, 2001. 79 . Supreme Court of Korea, 2004Do3212, August 30, 2004, in Asian Centre for Human Rights, Time To Go, pp. 3–4. 80 . 2004Hun-Ma839, November 16, 2004 (personal translation). 81 . 8–2 KCCR 283, 95Hun-Ka2, October 4, 1996, and 9–1 KCCR 1, 92Hun-Ba6, January 16, 1997, in Constitutional Court of Korea, Twenty Years , p. 217. 82 . Amnesty International, Summary of Concerns for 1999 ( ASA 25/01/99, London: Amnesty International, 1999), p. 1. 83 . Charles K. Armstrong, “Contesting the Peninsula,” New Left Review 51 (2008): 117. As stressed by Lee Namhee, “the Uri Party has not internalized the notion of ‘economic democracy’; neoliberalism became the key economic policy of the Kim Dae-jung and Roh Moo-hyun governments . . . These governments’ mantle of higher moral authority, relative to the previous regimes, has helped vindicate their embrace of neoliberalism.” Namhee Lee, The Making of Minjung: Democracy and the Politics of Representation in South Korea (Ithaca, NY: Cornell University Press, 2007), p. 302. In this context, the conflict between progressive and conservative forces in the political sphere has tended to crystallize on the “national question” associated with the inter-Korean division. 84 . Patricia Goedde, “From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea,” East Asia Law Review 4, no. 1 (2009): 83. 85 . According to an opinion poll reported by the Chosun Ilbo in the summer 2004, 66 percent of respondents were in favor of maintaining but revising the security legislation, 16 percent for maintaining it in its current form, and 14 percent for the law’s complete abolition. “Proper Path of National Security Law Debate,” Chosun Ilbo , July 9, 2014. 198 Notes

5 Reviewing the Contours of the National Community: The Body Politic Beyond and Below the 38th Parallel

1 . Kent Roach has, for instance, underlined how the most severe regulations of current national antiterrorist laws deal with aliens. Some go as far as authorizing their indefinite administrative detention—that is, arrest and internment without a trial—in case of security concerns, such as Section 412 of the U.S. Patriot Act and Part IV of the 2001 Antiterrorism, Crime, and Security Act in the UK. Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011), pp. 183 and 271. 2 . The 38th parallel was the original boundary used in 1945 to split the Korean peninsula into two zones of occupation, respectively under Soviet guidance (north of the 38th parallel) and American control (south of it). The present frontier has been slightly displaced from its initial path, and corresponds to the curves of the front line when the Armistice Agreement ending the Korean War was signed on July 23, 1953. 3 . As recently reaffirmed by the Supreme Court of Korea, “North Korea is a partner of conversation and cooperation for the peaceful unification of our country. Nonetheless, despite changes in the South/North Korea relationship, it also has the characteristic of an anti-government organization which plots to overturn our system of free democracy while adhering to the line of unification by communism.” Supreme Court of Korea, 2007Do10121, December 9, 2010. 4 . Gi-Wook Shin, Ethnic Nationalism in Korea: Genealogy, Politics, and Legacy (Stanford: Stanford University Press, 2006), pp. 154 and 152. 5 . At the turn of the twentieth century, this way of conceiving the nation was not distinctively Korean, but represented the mainstream of thinking on the subject. Shin Chae-ho was thus largely expressing a cosmopolitan consensus more than developing a uniquely Korean perspective. 6 . Shin, Ethnic Nationalism , p. 4. 7 . 12-2 KCCR 167, 97Hun-Ka12, August 31, 2000, in Constitutional Court of Korea, Constitutional Court Decisions Volume I: 1998-2004 (Seoul: Constitutional Court of Korea, 2006), pp. 665–666. 8 . The categories are elaborated in 1997 Overseas Koreans Foundation Act and the 1999 Act on the Immigration and Legal Status of Overseas Koreans. 9 . 12-2 KCCR 167, 97Hun-Ka12, August 31, 2000, in Constitutional Court of Korea, Constitutional Court Decisions Volume I, pp. 663-664. 10 . Law of Return 5710-1950, available on Israel Ministry of Foreign Affairs’ web site, http://www.mfa.gov.il/mfa/mfa-archive/1950-1959/pages/law%20of%20 return%205710-1950.aspx (accessed March 19, 2015). 11 . HCJ 7052/03, Adalah v. Minister of Interior (2006). 12 . James A. Foley, Korea ’s Divided Families: Fifty Years of Separation (London: RoutledgeCurzon, 2003). Notes 199

13 . Sheila Miyoshi Jager, “Women, Resistance and the Divided Nation: The Romantic Rhetoric of Korean Unification,” Journal of Asian Studies 55, no. 1 (1996): 7. 14 . Ibid., p. 8. 15 . Conceived in 1988, the War Memorial is located in central Seoul and open to the public since 1994. 16 . Sheila Miyoshi Jager, Narratives of Nation Building in Korea: A Genealogy of Patriotism (New York: M. E. Sharpe, 2003), pp. 135–136. 17 . As pointed out by Brittan Heller, “the traditional term for a person fleeing North Korea is ‘defector.’ It is translated from gwi-sun-ja [kwisunja], literally meaning ‘a person who used to be an enemy, who voluntarily surrenders and defects, and obeys his new country.’” More recent terms have been introduced, such as nanmin (refugee) in the 1990s, or saet’ŏ min (new settler), pukhanit ’alchumin (North Korea migrant or escapee), and t ’albukcha (North Korean refugee or defector) after 2000. See Brittan Heller, “Terms of Endangerment: Evolving Political and Legal Terminology for North Koreans,” Oxford Monitor of Forced Migration 1, no. 1 (2011): 14–15. 18 . See Stephan Haggard and Marcus Noland, Famine in North Korea: Markets, Aid, and Reform (New York: Columbia University Press, 2007). 19 . The intelligence and police agencies are described in Chapter Six . 20 . Kyong-Hwa Seok, “North Korean Defectors Sue South Korea,” Associated Press , February 19, 1999. 21 . Ministry of Unification, Manual for the Resettlement Support for North Korean Refugees (Seoul: Ministry of Unification, 2014). 22 . Hyun-Sun Park, “South Korea’s Policy Response to Sudden Increases in North Korean Refugees,” Korea Observer 34, no. 4 (2003): 731–755. With the passing of time, the socioeconomic dimension of the division not only carries more weight in the orientation of support policies toward defectors, but also in South Korean society’s approach to reunification. Attitudes about such a prospect are strongly influenced by generational factors, with younger South Koreans perceiving this process’ potential cost as an unwanted burden. 23 . 6-2 KCCR 477, 93Hun-Ma120, December 29, 1994. 24 . As described by the Constitutional Court of Korea, “the Act has been legislated to promote globalization of the Korean society by encouraging more active participation of ethnic Koreans living abroad in all spheres of the Korean society. The Act aims to encourage investment in Korea by simplifying regulations with regards to entry and exit, acquisition of real estate, financial transaction, and foreign exchange dealings of ethnic Koreans.” 13-2 KCCR 714, 99Hun- Ma494, November 29, 2001, in Constitutional Court of Korea, Constitutional Court Decisions Volume I, p. 688. 25 . Ibid., p. 679. Although the English translation of the ruling only makes reference to the “Republic of China,” the original Korean text mentions the People’s Republic of China (chunghwa inmin konghwaguk). 200 Notes

26 . 13-2 KCCR 714, 99Hun-Ma494, November 29, 2001, in Constitutional Court of Korea, Constitutional Court Decisions Volume I, p. 683. 27 . Ibid., p. 684. 28 . Ibid., p. 694. 29 . Ibid. 30 . As evoked in Chapter Two , the provisional government only represented one of the groups that disparately composed the Korean independence movement. 31 . Dae-Sook Suh, The Korean Communist Movement: 1918-1948 (Princeton, NJ: Princeton University Press, 1967). 32 . Following the court’s decision, the National Assembly proceeded to revise the legislation on overseas Koreans but “key issues, especially the inclusion/exclusion of different overseas Korean groups, have not been effectively and practically resolved and disagreements surrounding the law still linger.” Jung-Sun Park and Paul Y. Chang, “Contention in the Construction of a Global Korean Community: The Case of the Overseas Korean Act,” Journal of Korean Studies 10, no. 1 (2005): 2. 33 . Japan invaded Manchuria in 1931, entered into war against China in 1937, and against the United States in 1941. “More than 700,000 Koreans were drafted to Japan for forced labor or military conscription following the passage of the National Manpower Mobilization Act in 1939.” Erin Aeran Chung, Exercising Citizenship: Korean Identity and the Politics of Nationality in Japan (PhD diss., Northwestern University, 2003), p. 142. 34 . Ibid., p. 141. 35 . 19-1 KCCR 859, 2004Hun-Ma644, June 28, 2007, in Constitutional Court of Korea, Constitutional Court Decisions Volume II: 2005-2008 (Seoul: Constitutional Court of Korea, 2009), p. 238. 36 . Ibid., p. 239. 37 . Many of Chory ŏ n’s leaders were indeed “communist activists recently released from prison.” Chung, Exercising Citizenship , p. 147. 38 . Ibid., p. 149. 39 . Presidential Truth Commission on Suspicious Deaths of the Republic of Korea, A Hard Journey to Justice: First Term Report by the Presidential Truth Commission on Suspicious Deaths of the Republic of Korea (Seoul: Samin Books, 2004), p. 152. 40 . Erin Aeran Chung, Immigration and Citizenship in Japan (New York: Cambridge University Press, 2010), p. 93. 41 . The autobiography written by one of the Suh brothers is available in English. See Sung Suh, Unbroken Spirits: Nineteen Years in South Korea ’s Gulag (Lanham: Rowman and Littlefield, 2001). 42 . Statistics of the Constitutional Court of Korea from the court’s English web site, http://english.ccourt.go.kr/cckhome/eng/decisions/caseLoadStatic/caseLoad- Static.do (accessed March 20, 2015). 43 . 14-1 KCCR 351, 98Hun-Ma425, April 25, 2002, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , pp. 12–43. 44 . Ibid., p. 17. Notes 201

45 . Amnesty International, Amnesty International Appeal: Prisoner of Conscience, Cho Sang-nok (ASA 25/08/99, London: Amnesty International, 1999), p. 1. 46 . Other prisoners who refused to convert did so out of a refusal to recant their political faith in communism. Sixty-three of them claiming loyalty to the North Korean government even chose to be repatriated to Pyongyang on September 2, 2000, in the wake of the summit meeting held between the two Koreas. They included Kim Sun-myung (Kim Sŏ nmy ŏ ng), released in 1995 after 45 years spent behind bars, and Woo Yong-gak (U Yonggak) liberated in 1999 in the wake of a 42-year long stay in prison. Kim was born in 1925 in Ky ŏ nggi-do, the province surrounding Seoul, and was captured in 1951 after joining the Korean People’s Army. As for Woo, he was born in 1929 in what would later become part of North Korea’s territory and was arrested in 1959 during a commando raid into Southern waters. 47 . Gi-Wook Shin and Michael Robinson, eds., Colonial Modernity in Korea (Cambridge, MA: Harvard University Asia Center, 2000), p. 2. 48 . Ibid., p. 5. 49 . Richard H. Mitchell, Thought Control in Prewar Japan (Ithaca, NY: Cornell University Press, 1976). 50 . Michael Robinson, Cultural Nationalism in Colonial Korea: 1920–1925 (Seattle: University of Washington Press, 1988), p. 6. 51 . Leading figures of the early independence movement, such as Choe Nam-seon (Ch’oe Namsŏ n) and Yi Kwang-su (Yi Kwangsu), gave literary accounts of their beliefs’ repudiation as a result of dehumanization they experienced in jail. Their trajectory contrasts with the role of prisons as a site of reproduction for independence movements in colonial India and Vietnam, or during the US civil rights movement. See Justine Guichard, La prison de Seodaemun, lieu de m é moires: La renaissance d ’ une prison sud-cor éé nne en m é morial de la r é sistance anti-coloniale (MA thesis, Sciences Po, 2009). 52 . Suh, Unbroken Spirits , p. 56. 53 . Presidential Truth Commission on Suspicious Deaths, A Hard Journey to Justice , p. 152. “The reason why the government reinforced the ideology conversion project was that the majority of leftist prisoners were due to be released upon expiration of their sentences, in the mid-1970s; almost all of such long-term prisoners arrested during the [Korean] war were sentenced to life imprisonment, but their sentences were reduced to 20 years’ imprisonment just after the April Revolution of 1960 [which opened a one-year long episode of political liberalization in South Korea], making them due to be released in the middle of the 1970s” (ibid.). 54 . “According to testimonies of former political prisoners, in order to show that they had ‘converted’ they were required to write a statement explaining (a) how they became communists, (b) the activities they carried out to promote communism, (c) the reasons why they wanted to give up communism, and (d) what they proposed to do in the future. The prisoners then appeared before a committee of prison officials who decided whether to accept the statement as evidence of 202 Notes

a true ‘conversion.’” Amnesty International, South Korea: Amnesty International ’s Concerns (ASA 25/14/92, London: Amnesty International, 1992), p. 12. See also similar developments in Amnesty International, South Korea: Human Rights Violations Continue under the New Government (ASA 25/08/94, London: Amnesty International, 1994). 55 . Suh, Unbroken Spirits , pp. 145–150. Suh Sung evokes the improvement of material conditions in 1983–1984 as a “prison spring,” which translated into an incentive-based approach to conversion through promises of release and special treatment. The period of the mid-1980s coincided with Chun Doo-hwan’s promotion of political liberalization under control, which eventually reverted against the regime by strengthening the pro-democracy movement that brought about its demise. 56 . Amnesty International, Amnesty International ’s Concerns, p. 12. 57 . 14-1 KCCR 351, 98Hun-Ma425, April 25, 2002, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , pp. 24–25. 58 . Ibid., p. 25. 59 . Ibid. 60 . Ibid. 61 . Ibid. 62 . Ibid., p. 37. 63 . Article 1 of the Social Surveillance Act. 64 . Amnesty International, Amnesty International ’s Concerns , p. 17. 65 . G ünther Jakobs, “Aux limites de l’orientation par le droit: Le droit p énal de l’ennemi,” Revue de science criminelle et de droit p é nal compar é 33, no. 1 (2009): 7–18. 66 . Jakobs argues that such preventive measures are necessary in a democratic state given the dangers that it may face, but that they should be recognized for what they are: deviations from the rule of law’s principles. 67. John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York: Oxford University Press, 1991), p. 210. 68 . For instance, the adoption of a package of emergency laws prompted the 1969 incorporation of the right of an individual to file a constitutional complaint, originally bestowed by legislation, in article 93 of the basic law. See Donald P. Kommers and Russel A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 2012), p. 39. 69 . Vogt v. Germany (1996) 21 EHRR 205. 70 . Hirabayashi v. United States , 320 U.S. 81 (1943); Korematsu v. United States , 323 U.S. 214 (1944); Ex parte Endo , 323 U.S. 283 (1944). 71 . Korematsu v. United States , 323 U.S. 214 (1944). I am indebted to Daniel Sabbagh for pointing out this part of the ruling. 72 . This conception of national identity framed in terms of “friend (abang) versus foe (t’abang),” or “culture of enmity,” has not been monopolized only by the state but also appropriated by the minjung movement. See Namhee Lee, “The South Korean Student Movement: Undongkw ŏ n as a Counterpublic Sphere,” in Korean Notes 203

Society: Civil Society, Democracy, and the State , ed. Charles K. Armstrong (London: Routledge, 2007), p. 135.

6 Reviewing How the Enemy is Treated: Criminal Rights Even for National Security Offenders

1 . Article 12, section 7, of the Constitution of the Republic of Korea. 2 . Donatella della Porta and Herbert Reiter, eds., Policing Protest: The Control of Mass Demonstrations in Western Democracies (Minneapolis: University of Minnesota Press, 1998), p. 11. 3 . Before 1961, intelligence activities were distributed among a variety of services. The KCIA’s first director was Kim Jong-pil, who later became Kim Dae-jung’s prime minister (an alliance that seemed ironical given that the KCIA kidnapped Kim Dae-jung in 1973, when he was a regime dissident). The agency’s last director, Kim Jae-gyu (Kim Chaekyu), assassinated President Park Chung-hee in 1979. Two years later, the KCIA was transformed into the Agency for National Security Planning. South Korea’s other intelligence agency, the army’s Defense Security Command (kukkun kimu sary ŏ ngbu), primarily operates within the military. 4 . Andrea Matles Savada and William Shaw, eds., South Korea: A Country Study (Washington, DC: U.S. Library of Congress, 1990), p. 176. 5 . Jonathan Moran, “The Role of the Security Services in Democratization: An Analysis of South Korea’s Agency for National Security Planning,” Intelligence and National Security 13, no. 4 (1998): 8. A new scandal about the National Security Intelligence’s involvement in elections erupted in the wake of Park Geun-hye presidential victory in December 2012, as it was revealed that NSI agents mounted a mass campaign of slandering on the Internet against opposition candidates. See International Crisis Group, Risks of Intelligence Pathologies in South Korea (Asia Report No.259, Brussels: International Crisis Group, 2014). 6 . Moran, “The Role of the Security Services,” p. 6. 7 . Ibid., p. 18. 8 . Article 3, section 1, of the National Intelligence Service Act. 9 . Dae-Kyu Yoon, Law and Political Authority in South Korea (Boulder: Westview Press, Seoul: Kyungnam University Press, 1990), p. 40. 10 . Sanja Kutnjak Ivković and Wook Kang, “Police Integrity in South Korea,” Policing: An International Journal of Police Strategies and Management 35, no. 1 (2012): 77. 11 . Ibid. 12 . Ibid., p. 83. 13 . Ibid., p. 80. 14 . During the Meiji Restoration (1869–1912), Japan remodeled many of its institutions, especially in the legal sphere, drawing from the German civil law tradition 204 Notes

to rationalize and codify its own legislation. While the German and French models were originally weighed against each other, the former came to prevail after France was defeated in the war of 1870–1871, which opposed the two countries. Although the legal system of colonial Korea was far from being a copy of its Japanese counterpart, the colonial period did have a profound impact on legal institutions as South Korea retained most of them after 1945. 15 . In Germany, for instance, the figure of the mighty investigating judge has slowly waned while that of the public prosecutor, being associated with greater impartiality, has correlatively risen. 16 . Yoon, Law and Political Authority , pp. 123–124. 17 . Ibid., p. 124. 18 . Ibid., p. 113. South Korean legal education underwent substantial reform after the Graduate Law School Act was passed in 2007, implementing a US-style system of legal education under which only graduates of the freshly created 25 professional law schools (whose number is controlled by the government) are eligible to take the bar exam (distinct from the judicial exam prepared by future judges and prosecutors) and become licensed if they pass it. Matthew Wilson, “U.S. Legal Education Methods and Ideals: Application to the Japanese and Korea System,” Kyung Hee Law Journal 44, no. 3 (2009): 496. 19 . 4 KCCR 853, 92Hun-Ka8, December 24, 1992, in Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2008), p. 509. 20 . 5-2 KCCR 578, 93Hun-Ka2, December 23, 1993. 21 . United Nations Committee against Torture, Second Periodic Report of the Republic of Korea (CAT/C/SR.711, Geneva: United Nations, 2006), pp. 8–9. The public off i- cials involved were criminally punished. The prosecutor received an 18-month prison sentence and the three investigators who had committed torture served prison sentences ranging from 24 to 30 months. However, two other investigators indicted for assisting in the act of torture were granted a suspension of sentence. 22 . 16-2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I: 1998–2004 (Seoul: Constitutional Court of Korea, 2006), p. 841. Beyond such a consensus, justices disagreed about whether the existing constitutional safeguards (prohibition against torture and self-incrimination, right to counsel, etc.) and the current legislative framework represented a sufficient and effective protection against potential human rights violations in the criminal process. 23 . Miranda v. Arizona, 384 U.S. 436 (1966). 24 . See respectively Mapp v. Ohio , 367 U.S. 643 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963), and Miranda v. Arizona, 384 U.S. 436 (1966); In re Gault , 387 U.S. 1 (1967); Cooper v. Pate , 378 U.S. 546 (1964) and, Wolff v. McDonnell , 418 U.S. 539 (1974). 25 . Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). 26 . This contingency echoes the argument that institutional outcomes seldom are the intended product of reforms, which is one of the core lessons drawn by Gretchen Notes 205

Helmke and Julio Rí os-Figueroa from their comparative study of courts in Latin America. See Gretchen Helmke and Julio R íos-Figueroa, eds., Courts in Latin America (Cambridge: Cambridge University Press, 2011). 27 . 3 KCCR 356, 89Hun-Ma181, July 8, 1991. 28 . Ibid. (personal translation from the original Korean text). 29 . 4 KCCR 51, 91Hun-Ma111, January 28, 1992. 30 . The association of Lawyers for a Democratic Society. See Chapter Three . 31 . 4 KCCR 51, 91Hun-Ma111, January 28, 1992, in Constitutional Court of Korea, Twenty Years, p. 506. As for the name of the main lawyer in this case, it is reported in the original Korean text. 32 . Ibid., pp. 506–507. While some of the “evils arising out of the fact of incarceration” were treated as unavoidable—such as experiencing “psychological dis- orders” (“anxiety, fear, despair, worry”) and suffering material or social costs (including a loss of income or having one’s reputation harmed), the court reasoned that the risk of being tortured and coerced to make a confession could only be effectively prevented if the suspect or defendant was sufficiently assisted by counsel, that is, able to consult with his or her lawyer free of any state interference (ibid., personal translation). 33 . Ibid., p. 507. 34 . This length (short by US standards but extensive for courts such as the French Constitutional Council) used to be customary in the first years of the Constitutional Court of Korea. Over time, its rulings have tended to become longer, reflecting the institution’s self-proclaimed aspiration to greater profes- sionalism. Research Institute of the Constitutional Court of Korea, personal communication, September 2012. 35 . 4 KCCR 51, 91Hun-Ma111, January 28, 1992, in Constitutional Court of Korea, Twenty Years, p. 505. 36 . 9-2 KCCR 675, 94Hun-Ma60, November 27, 1997, in ibid., p. 531. 37 . “Even if [a prosecutor’s decision] can be reviewed judicially under [the Administration Litigation Act], the likelihood of relief is nil. Requiring exhaus- tion of prior remedies to the complainant amounts to an unnecessary demand of detour. The circumstances justify an exception to the rule of exhausting of prior remedies” (ibid., p. 530). 38 . 11-1 KCCR 653, 97Hun-Ma137, May 27, 1999. 39 . Amnesty International, Suh Jun-sik, Aged 49: Human Rights Activist (ASA 25/01/98, London: Amnesty International, 1998), p. 1. 40 . 11-1 KCCR 653, 97Hun-Ma137, May 27, 1999, in Constitutional Court of Korea, Constitutional Court Decisions Volume I, p. 777. As reasoned by the court, “the detainees, prevented from wearing plain clothes and forced to wear inmate uniforms, will feel insulted and ashamed. Their free manifestation of individual personality is suppressed, and their human dignity and worth is infringed” (ibid.) 41 . 8-2 KCCR 808, 94Hun-Ba1, December 26, 1996, in Constitutional Court of Korea, Twenty Years , p. 523. 42 . 8-1 KCCR 1, 95Hun-Ka5, January 25, 1996, in ibid., p. 515. 206 Notes

43 . Constitutional Court of Korea, Twenty Years , p. 172. 44 . Supreme Court of Korea, 90Do1586, September 25, 1990, in ibid., p. 505. 45 . Supreme Court of Korea, 90Do2033, May 31, 1992, in Kuk Cho, “The Ongoing Reconstruction of the Korean Criminal Justice System,” Santa Clara Journal of International Law 5, no. 1 (2006): 102. 46 . Yoon, Law and Political Authority , p. 62. 47 . Matles Savada and Shaw, South Korea , p. 67. 48 . Ibid. 49 . The revision was enacted on January 5, 1995, and reads as: “A detainee pending appeal’s visit with his attorney (or one seeking to be his attorney) cannot be attended, listened in, or recorded by a correction officer. Nevertheless, he can observe the inmate from a distance within a visibility range.” Constitutional Court of Korea, Twenty Years , pp. 507–508. 50 . Supreme Court of Korea, 2003Mo402, November 11, 2003, in Cho, “The Ongoing Reconstruction,” pp. 103–104. 51 . Ibid., p. 103. 52 . Miranda v. Arizona , 384 U.S. 436 (1966). 53 . 16-2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004. 54 . Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change (Chicago: University of Chicago, 1991), p. 334. 55 . Cho, “The Ongoing Reconstruction,” p. 101. 56 . 16-2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004. 57 . Let us recall that the period of authorized custody before charges are pressed against a suspect is extended from 30 to 50 days under the National Security Act’s article 19 as discussed in Chapter Four . 58 . 16-2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 835. 59 . Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011), p. 233. 60 . Research Institute of the Constitutional Court of Korea, personal communication, September 2012. The principle of proportionality finds its jurisprudential roots in German constitutional law, where it was first employed in the Lü th decision of 1958, that is, almost ten years after the creation of the Federal Constitutional Court (BVerfGE 7, 198 [1958]). As a method of balancing between competing constitutional interests, proportionality has been refined into a four- step test: (1) there should be a legitimate aim to the restriction of a basic right, (2) the means to achieve this aim (i.e., the concrete restriction) should be appropriate, (3) the means should be necessary, in the sense that it should be the least restrictive means to achieve the pursued aim, and (4) the balance between the concerned legal interests has to be proportionate. While the first three stages deal with the legitimacy of the aim and the adequacy of the means, the last step represents a proportionality test in the narrow sense, assessing whether the overall advantages of the restriction outweigh its disadvantages. 61 . For instance, the Miranda decision of 1966 established that a suspect’s statements to the police or other investigative actors are not admissible as evidence in a Notes 207

trial if the suspect has not been warned prior to interrogation of his right to remain silent and to be assisted by a lawyer. In its New York v. Quarles ruling of 1984, however, the U.S. Supreme Court introduced a “public safety exception” to Miranda, permitting that unwarned statements be admissible as evidence in a trial when there exists an urgent concern for public safety—a suspect can therefore be interrogated for 48 hours before being “mirandized” ( New York v. Quarles , 467 U.S. 649 [1984]). 62 . 16-2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , pp. 856–857. 63 . 13-2 KCCR 103, 2000Hun-Ma546, July 19, 2001, in ibid., pp. 876–878. 64 . 14-2 KCCR 54, 2000Hun-Ma327, July 18, 2002, in ibid., p. 887. 65 . 15-2(B) KCCR 562, 2001Hun-Ma163, December 18, 2003, in ibid., p. 905. The complainant in this case was an ordinary criminal who stabbed a prison officer in the courtroom during his trial. 66 . In the wake of the decision, the Ministry of Justice designed new rules providing that “the use of leather handcuffs on the detainee [under restraint] is prohibited, and, instead, belt-handcuffs are introduced; chains are prohibited; medical examination . . . is reinforced; use of prohibitory devices may be temporarily suspended during meal or cleaning; protective facial mask is redesigned in a modern fashion considering the convenience of the wearer; respective prisons should review daily the need for the use of prohibitory devices to reduce the harm caused by constant wearing of prohibitory devices; and, use of prohibitory devices for over seven consecutive days is subject to the control of an immediately higher authority.” Constitutional Court of Korea, Twenty Years , p. 576. 67 . 17-1 KCCR 754, 2004Hun-Ma49, May 26, 2005, in Constitutional Court of Korea, Constitutional Court Decisions Volume II: 2005–2008 (Seoul: Constitutional Court of Korea, 2009), p. 790. 68 . Song Du-yul was accused by the prosecution of “acting as a non-standing Politburo member of the North’s ruling Workers’ Party, which he has consistently denied, spreading North Korean ideology abroad and visiting the communist state on more than 20 occasions since 1973 [when he exiled himself from South Korea to Germany] on orders from Pyongyang.” Asian Human Rights Commission, Scholar Song Du-yul Indicted for Violating the National Security Law (UP-48-2003, Hong Kong: Asian Human Rights Commission, 2003), p. 2. 69 . 17-1 KCCR 754, 2004Hun-Ma49, May 26, 2005, in Constitutional Court of Korea, Constitutional Court Decisions Volume II , p. 790. Justices Song In-jun and Choo Sun-hoe, who started their judicial career as prosecutors, dissented again in this case, calling attention to its national security nature and to the hard- ships faced by public prosecutors in doing their work, such as “the inadequacy in personnel and equipment available in prosecutorial interrogation rooms” (ibid., pp. 790–791). 70 . As argued by David Kretzmer about the Supreme Court of Israel’s use of proportionality in its jurisprudence on the actions of military authorities in the West Bank and Gaza, “while this notion allows for judicial supervision of the way in which military commanders use their discretion in occupied territory, and in 208 Notes

the Israeli case has on occasion been employed in order to restrain use of such discretion, the notion may be overused and abused. The Court may employ the notion where it would be more appropriate to examine questions of legal authority. It may also widen the interests to be considered in assessing proportionality, thereby also widening the powers of the commander in occupied territory.” David Kretzmer, “The Law of Belligerent Occupation in the Supreme Court of Israel,” International Review of the Red Cross 94, no. 885 (2012): 232.

7 Reviewing the Exigencies of National Defense: Citizens’ War-Related Rights and Duties

1 . Article 12 of the Constitution of the Republic of Costa Rica abolishes the army as a “permanent institution” while article 9 of the Constitution of Japan holds that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” With the outbreak of the Korean War (1950–1953) and most US occupation troops that ensured the military protection of Japan leaving the country, a National Police Reserve was established in 1950, becoming Japan Self-Defense Forces in 1954. Their constitutionality was upheld on several occasions by the Supreme Court of Japan. See n. 30 in Chapter Seven . 2 . The armed forces are currently undergoing a reform aimed at increasing their capabilities while downsizing troop numbers. From 681,000 in 2005, they are expected to decrease to 517,000 by 2020. 3 . South Korea’s involvement in Vietnam and Iraq (the two post-1945 US-led foreign wars to which it most heavily cooperated) has had resonance in the context of the Korean division—Vietnam was part of the South’s struggle against communism, while the invasion of Iraq followed its designation by the George W. Bush administration as forming an “axis of evil” with Iran and North Korea. 4 . Article 4, section 3, and article 12a, section 2, of the Basic Law for the Federal Republic of Germany constitutionalize the right to conscientious objection. 5 . Louis Fisher, “Judicial Review of the War Power,” Presidential Studies Quarterly 35, no. 3 (2005): 468. 6 . The first war-related questions decided by the U.S. Supreme Court involved the so-called Quasi-War, which took place, undeclared, between the United States and France from 1798 to 1800. According to Louis Fisher, “the cases involved such sensitive questions as deciding whether France was an ‘enemy,’ conflicts between presidential war proclamations and statutory policy, suspension of the writ of habeas corpus, calling forth the militia, annexing territory as the result of military conquest, and protecting American lives and property abroad. Those cases came to the courts and were decided there” (ibid.). 7 . David Kretzmer, “The Law of Belligerent Occupation in the Supreme Court of Israel,” International Review of the Red Cross 94, no. 885 (2012): 209. Notes 209

8 . Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, CT: Yale University Press, 1986), p. 132. 9 . Ibid., p. 70. 10 . HCJ 7015/02, Ajuri v. IDF Commander in the West Bank (2002). 11 . HCJ 5100/94, Public Committee against Torture in Israel v. State of Israel (1999). 12 . For proponents of the former position, see for instance Seth P. Waxman, “The Combatant Detention Trilogy Through the Lenses of History,” in Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, ed. Peter Berkowitz (Stanford: Hoover Institution Press, 2005), pp. 1–36. For advocates of the latter, see n. 43 in Chapter Four . 13 . David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002), p. 196. 14 . “If a person who desires to file a constitutional complaint has no financial resources to appoint an attorney as his counsel, he may request the Constitutional Court to appoint a court-appointed counsel. In this case, the time limit for request as prescribed by Article 69 shall be counted from the day on which such request is made” (Article 70, section 1, of the Constitutional Court Act). 15 . 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I: 1998 – 2004 (Seoul: Constitutional Court of Korea, 2006), p. 335. The expression “private soldiers” corresponds to the English translation for the Korean ilban saby ŏ ng, best translated as either “privates” or “ordinary soldiers.” 16 . Ibid., p. 350. 17 . Ibid., p. 348. 18 . Ibid., p. 347. 19 . Ibid. 20 . 8–1 KCCR 111, 93Hun-Ma186, February 29, 1996, in Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (Seoul: Constitutional Court of Korea, 2010), p. 208. In this case on the presidential power to issue financial and economic emergency decrees, the court “had taken the view that while the concept of an executive prerogative action may be recognized, it must still be subjected to review” (ibid.). 21 . 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , pp. 348–349. As argued by the court, “whether or not the dispatch at issue in this case is in violation of the Constitution, that is, whether such decision will ultimately benefit the interest of the citizenry and the nation by enhancing national security, and whether the war in Iraq is a war of aggression that is in violation of international norms, should be judged by the representative institutions of the President and the National Assembly, and may not be appropriately judged by this Court that is by nature in possession of no more than limited materials and information” (ibid.). 22 . The case on the war in Iraq preceded the court’s decision on President Roh Moo-hyun’s impeachment, analyzed in Chapter Four , by a few weeks. The 210 Notes

impeachment case represented a turning point for South Korean constitutional justice as, “upon seeing the Court adjudicate the fall-out between the two political branches of the government, many citizens for the first time were alerted to the tremendous influence it could have on the political scene.” Chaihark Hahm, “Beyond ‘Law vs. Politics’ in Constitutional Adjudication: Lessons from South Korea,” International Journal of Constitutional Law 10, no. 1 (2012): 22. 23 . 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 349. 24 . Louis Henkin, “Is There a ‘Political Question’ Doctrine?” Yale Law Journal 85, no. 5 (1976): 598. 25 . Gretchen Helmke and Julio R í os-Figueroa, eds., Courts in Latin America (Cambridge: Cambridge University Press, 2011), p. 12. 26 . Bruce Wilson, “Enforcing Rights and Exercising an Accountability Function: Costa Rica’s Constitutional Chamber of the Supreme Court,” in ibid., pp. 59–60. In addition, “claims can be handwritten or typed on anything [‘this has previously included a case written on a paper used to wrap bread’] and in any language, including Braille” (ibid.). 27 . Sala Constitucional de la Corte Suprema de Justicia, Resoluci ón 2004–09992, judgment available in Spanish on the court’s web site, http://sitios.poder-judicial .go.cr/salaconstitucional/Constitucion%20Politica/Sentencias/2004/04-09992. htm (accessed March 30, 2015). All the translations in the above and following quotes are mine. 28 . Ibid. 29 . Ibid. 30 . Ibid. Similarly, the Supreme Court of Japan has recognized in its 1959 Sunakawa Case that “article 9 is an embodiment of the concept of pacifism which characterizes the Constitution of Japan” but held, nonetheless, that “it goes without saying that this does not in the least negate the inherent right of self-defense of this country as a sovereign state” (Supreme Court of Japan, 1959(A)No.710 [1959]). Alfred C. Oppler, “The Sunakawa Case: Its Legal and Political Implications,” Political Science Quarterly 76, no. 2 (1961): 247. 31 . 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 349. 32 . The Sunshine Policy refers to South Korea’s engagement policy vis- à -vis North Korea. It was pursued from 1998 to 2008 under the administrations of Kim Dae- jung and Roh Moo-hyun, and premised on accentuating cooperation with the North rather than sanctions. 33 . “South Korea and Iraq: Murder and Its Consequences,” Economist, June 24, 2004. In August 2003, a few months after the US-led invasion of Iraq, the Six-Party Talks involving North Korea, the United States, South Korea, China (who hosted the negotiations), Japan, and Russia, were formally started in response to the crisis unleashed by the North’s withdrawal from the Nuclear Non-Proliferation Treaty in January of the same year. Notes 211

34 . 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 347. 35 . Wilson, “Enforcing Rights,” p. 74. 36 . “Costa Rica Drops Out of Coalition,” New York Times, September 10, 2004. 37 . 21–2(B) KCCR 769, 2007Hun-Ma369, May 28, 2009, in Constitutional Court of Korea, Constitutional Court Decisions: 2009 (Seoul: Constitutional Court of Korea, 2010), p. 67. As exposed in the decision, the joint military practice in question consists of two yearly exercises: the “Reception, Staging, Onward movement, and Integration” practice (renamed “Key Resolve” in 2008) meant to “secure movement route” in the event of extra US forces landing on Korean soil; and the Foal Eagle conducted since 1961, which “focuses on military practice in anticipa- tion of the infiltration of the North Korean special forces into the South Korean rear line” (ibid.). The two exercises are operated under the Combined Forces Command, that is, the US-ROK “binational defense team” that replaced the United Nations Command in 1978. The CFC is headed by a four-star US general who also serves as commander of the resilient United Nations Command and the US Forces Korea, which presently number 28,500 soldiers. A four-star ROK Army general acts as the CFC’s deputy commander. 38 . Namhee Lee, The Making of Minjung: Democracy and the Politics of Representation in South Korea (Ithaca, NY: Cornell University Press, 2007), p. 142. 39 . Andrew Yeo, “Local-National Dynamics and Framing in South Korean Anti- Base Movements,” Philippine Journal of Third World Studies 21, no. 2 (2006): 41. 40 . 18–1(A) KCCR 298, 2005Hun-Ma268, February 23, 2006, in Constitutional Court of Korea, Constitutional Court Decisions Volume II : 2005 – 2008 (Seoul: Constitutional Court of Korea, 2010), p. 340. 41 . 21–2(B) KCCR 769, 2007Hun-Ma369, May 28, 2009, in Constitutional Court of Korea, Constitutional Court Decisions: 2009 , p. 70. 42 . Ibid., p. 76. 43 . Ibid., p. 75. 44 . U.S. Central Intelligence Agency, The World Factbook: Military Service Age and Obligation , available on the agency’s web site, https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html (accessed April 2, 2015). 45 . Homosexuality is categorized as a disorder that qualifies an individual for a dis- honorable discharge from compulsory military service and is criminalized by the Military Criminal Act’s article 92 (soldiers performing homosexual acts in military barracks can therefore be sentenced to prison). The constitutionality of the Military Criminal Act’s ban on homosexuality was upheld by the Constitutional Court of Korea in a 2011 ruling citing the need to maintain discipline in the armed forces. See 23–1 KCCR 178, 2008Hun-Ka21, March 31, 2011. 46 . Ji-Sun Lim, “With No Alternative, Conscientious Objectors Face Jail Time,” Hankyoreh , February 14, 2011. 47 . “Conscientious Objectors: Time to Consider Introducing Alternative Service,” Korea Times, November 28, 2012. 212 Notes

48 . “Continued Denial of the Right to Conscientious Objection,” Hankyoreh , January 17, 2009. 49 . “Korea’s Jehovah’s Witnesses Saw Deep Hardship,” Hankyoreh , April 30, 2007. 50 . Slightly more than half of South Koreans identify with a religion, with 22.8 percent declaring themselves Buddhists, 18.3 percent Protestants, 10.9 percent Catholics, 0.2 percent Confucians, 0.3 percent Won Buddhists, and 0.5 percent claiming another religious affiliation according to the 2005 census. Don Baker, “The Religious Revolution in Modern Korean Histor y: From Ethics to Theolog y and from Ritual Hegemony to Religious Freedom,” Review of Korean Studies 9, no. 3 (2006): 254. 51 . 16–2(A) KCCR 141, 2002Hun-Ka1, August 24, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 126. 52 . Howard French, “South Korea Faces a Test of Conscience Over the Draft,” New York Times , May 8, 2002. 53 . United Nations Commission on Human Rights, Conscientious Objection to Military Service (E/CN.4/RES/1987/46, Geneva: United Nations, 1987), p. 2. 54 . Edward R. Cain, “Conscientious Objection in France, Britain, and the United States,” Comparative Politics 2, no. 2 (1970): 275. 55 . See United States v. Seeger , 380 U.S. 163 (1965), and Welsh v. United States , 398 U.S. 333 (1970) on the one hand, Gillette v. United States , 401 U.S. 437 (1971) on the other hand. 56 . Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (Berkeley: University of California Press, 2005). 57 . The Torato Omanuto (literally “Torah study is his artistry”) agreement of 1948 exempts young men enrolled in yeshiva academies to serve in the Israeli Defense Forces. 58 . Waxman, “The Combatant Detention Trilogy,” p. 19. 59 . The case of one judicial trainee, Baek Jong-geon (Paek Chongg ŏ n) became pub- licized in 2011 after he refused, as a Jehovah’s Witness, to perform this abridged version of the draft, exposing himself to an 18-month sentence as well as an inca- pacity to be recruited as a judge or prosecutor, or to register as an attorney, for five years after his release. Kaitlin Brush, “The Right to Conscientious Objection and How South Korea Falls Short,” Human Rights Brief 18, no. 3 (2011): 54–55. 60 . A fourth accused was sentenced to imprisonment for his claim was found to lack authenticity. 61 . Sang-Min Joo, “Seoul Court Allows Jehovah’s Witnesses to Skip Military Duty,” Korea Herald , May 22, 2004. 62 . The Supreme Court of Korea, 2004Do2965, July 15, 2004. 63 . 16–2(A) KCCR 141, 2002Hun-Ka1, August 24, 2004, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , pp. 127–128. 64 . Ibid., p. 120. 65 . Ibid., p. 121. 66 . Ibid., p. 130. 67 . Ibid., p. 124. Notes 213

68 . Ibid., p. 127. 69 . I am indebted to Daniel Sabbagh for the arguments formulated in this paragraph, although mistakes are solely mine. 70 . 16–2(A) KCCR 141, 2002Hun-Ka1, August 24, 2004 in Constitutional Court of Korea, Constitutional Court Decisions Volume I, p. 122. 71 . The legitimacy of military conscription has been largely uncontested in society at large, including by opponents to military rule under the regimes of Park Chung- hee and Chun Doo-hwan. As pointed out by Lee Namhee, “with the exception of a few Jehovah’s Witnesses and a very small number of other individuals who refused to serve on religious grounds, no student conscientiously objected to the military service. Intense anticommunist education, in addition to the repeatedly emphasized notion that military was ‘men’s national duty,’ rendered the students unable to consider conscription in terms of individual freedom or conscience . . . The student movement was highly nationalistic and its subculture— even as it opposed militarism in South Korean society—militaristic.” Lee, The Making of Minjung , p. 91. 72 . Jang-Jip Choi, Democracy after Democratization: The Korean Experience (Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012), p. 12. 73 . Ibid., p. 114. 74 . 19–1 KCCR 711, 2005Hun-Ma1139, May 31, 2007, in Constitutional Court of Korea, Constitutional Court Decisions Volume II , p. 52. On the 1998 scandal, see “Conscription-Related Allegations Continue to Be Exposed,” Korea Times , June 12, 1998; “Draft Scandal Involves 133 Army Officers, Including Seven Generals,” Korea Herald , June 23, 1998. 75 . 19–1 KCCR 711, 2005Hun-Ma1139, May 31, 2007, in Constitutional Court of Korea, Constitutional Court Decisions Volume II , pp. 49 and 52. On recent scandals, see “Conscription in South Korea: Hallyu Elvis and the Draft-Dodger,” Economist , May 10, 2011. 76 . 11–2 KCCR 770, 98Hun-Ma363, December 23, 1999, in Constitutional Court of Korea, Constitutional Court Decisions Volume I , p. 600. As argued by the court, “serving in the military pursuant to the Military Service Act is merely discharge of a sacred duty, and cannot be considered a special sacrifice that the state imposes on individuals for public interest. People’s discharge of their constitutionally imposed duties is indispensable to national integrity and livelihood. Each instance of such discharge cannot be considered a special sacrifice that requires compensation” (ibid.). 77 . Ibid., p. 603. 78 . 22–2(B) KCCR 446, 2006Hun-Ma328, November 25, 2010, in Constitutional Court of Korea, Constitutional Court Decisions: 2010 (Seoul: Constitutional Court of Korea, 2011), pp. 227–230. 79 . I would like to thank Daniel Sabbagh for having formulated this point. 80. In September 2007, the Ministry of National Defense declared that an alternative service for conscientious objectors would be permitted as of 2009. However, “everything went back to square one in 2008 following the inauguration of 214 Notes

the Lee administration. On December 24, 2008, a month ahead of the date for full implementation, the ministry announced that it was ‘putting a hold on all alternative service.’ A number of constitutional petitions from parties affected by the decision were subsequently lodged and are now being reviewed by the Constitutional Court.” Lim, “With No Alternative.” The constitutionality of the ban on conscientious objection was reconfirmed by the court in 2011. See 23–2(A) KCCR 174, 2008Hun-Ka22, August 30, 2011. 81 . Seungsook Moon, Militarized Modernity and Gendered Citizenship in South Korea (Durham: Duke University Press, 2005), p. 2. 82 . Ibid.

Epilogue

1 . Jacques Ranci è re, Disagreement: Politics and Philosophy (Minneapolis: University of Minnesota Press, 1999), p. 25. 2 . Ibid., xii. BIBLIOGRAPHY

List of Cited Cases

Constitutional Court of Korea * Cases adjudicated by the Full Bench 1 KCCR 31, 88Hun-Ma3, April 17, 1989. (Review of prosecutors’ power to indict) 1 KCCR 69, 88Hun-Ka5, July 14, 1989. (Preventive Detention Case) 2 KCCR 49, 89Hun-Ka113, April 2, 1990. (Praising and Encouraging under the National Security Act Case) 2 KCCR 165, 90Hun-Ka11, June 25, 1990. (Review of article 7, section 5, of the National Security Act) 2 KCCR 200, 89Hun-Ma220, June 25, 1990. (Review of the Local Officials Act) 2 KCCR 365, 89Hun-Ma178, October 15, 1990. (Rules implementing the Certified Judicial Scriveners Act Case) 3 KCCR 356, 89Hun-Ma181, July 8, 1991. (Review of law enforcement agency’s prohibition of detainees’ meeting with their counsel) 4 KCCR 4, 89Hun-Ka8, January 28, 1992. (Review of article 7, sections 1 and 5, of the National Security Act) 4 KCCR 51, 91Hun-Ma111, January 28, 1992. (Interference with Attorney Visits Case) 4 KCCR 162, 90Hun-Ba23, April 14, 1992. (Review of article 9, section 2, of the National Security Act) 4 KCCR 194, 90Hun-Ma82, April 14, 1992. (Review of article 19 of the National Security Act) 4 KCCR 853, 92Hun-Ka8, December 24, 1992.

* “Review of…” titles refer to decisions only available in Korean while “… Case” titles refer to decisions translated (partly or fully) into English. 216 Bibliography

(Restriction on Judge’s Discretion in Releasing Defendants of Serious Crimes Case) 5–2 KCCR 578, 93Hun-Ka2, December 23, 1993. (Review of article 97, section 3, of the Criminal Procedure Act) 6–2 KCCR 477, 93Hun-Ma120, December 29, 1994. (Review of prosecutor’s decision not to indict) 7–1 KCCR 15, 94Hun-Ma246, January 20, 1995. (December 12 Incident Non-institution of Prosecution Case) 7–2 KCCR 697, 95Hun-Ma221, December 15, 1995. (May 18 Incident Non-institution of Prosecution Decision Case) 8–1 KCCR 1, 95Hun-Ka5, January 25, 1996. (Act on the Special Measures for the Punishment of Persons Involved in Anti-State Activities Case) 8–1 KCCR 51, 96Hun-Ka2, February 16, 1996. (The Special Act on the May Democratization Movement Case) 8–1 KCCR 111, 93Hun-Ma186, February 29, 1996. (Review of executive prerogative actions) 8–2 KCCR 283, 95Hun-Ka2, October 4, 1996. (Review of article 7 of the National Security Act) 8–2 KCCR 537, 95Hun-Ba1, November 28, 1996. (Capital Punishment Case) 8–2 KCCR 808, 94Hun-Ba1, December 26, 1996. (Pretrial Examination of Witnesses Case) 9–1 KCCR 1, 92Hun-Ba6, January 16, 1997. (Review of various provisions of the National Security Act) 9–1 KCCR 578, 96Hun-Ka8, June 26, 1997. (Review of article 19 of the National Security Act) 9–2 KCCR 295, 96Hun-Ma48, August 21, 1997. (Review of article 19 of the National Security Act) 9–2 KCCR 675, 94Hun-Ma60, November 27, 1997. (Defendant’s Access to Criminal Investigation Records Case) 9–2 KCCR 842, 96Hun-Ma172, December 24, 1997. (Constitutional Review of Judgments Case) 10–2 KCCR 159, 96Hun-Ba35, July 16, 1998. (Review of article 10 of the National Security Act) 10–2 KCCR 207, 97Hun-Ba85, August 27, 1998. (Review of article 6, section 2, of the National Security Act) 11–1 KCCR 474, 98Hun-Ba29, April 29, 1999. (Review of the National Security Act) 11–1 KCCR 653, 97Hun-Ma137, May 27, 1999. (Mandatory Wearing of Prison Uniforms for Detainees Case) 11–2 KCCR 770, 98Hun-Ma363, December 23, 1999. (Extra Points Conferred on Veterans Case) 12–2 KCCR 167, 97Hun-Ka12, August 31, 2000. (Patrilineality as Basis for Nationality Case) 13–2 KCCR 103, 2000Hun-Ma546, July 19, 2001. Bibliography 217

(Installation and Maintenance of Lavatories at Police Detention Facilities Case) 13–2 KCCR 502, 2000Hun-Ma92, October 25, 2001. (Population Disparity in Electoral Redistricting Case) 13–2 KCCR 714, 99Hun-Ma494, November 29, 2001. (Exclusion of Overseas Koreans with Chinese Nationality Case) 14–1 KCCR 279, 99Hun-Ba27, April 25, 2002. (Review of article 7 of the National Security Act) 14–1 KCCR 351, 98Hun-Ma425, April 25, 2002. (Pledge to Abide by the Law Case) 14–2 KCCR 54, 2000Hun-Ma327, July 18, 2002. (Excessive Bodily Search Case) 14–2 KCCR 600, 2002Hun-Ka5, November 28, 2002. (Review of article 13 of the National Security Act) 15–1 KCCR 514, 2000Hun-Ba66, May 15, 2003. (Review of article 8, sections 1 and 3, of the National Security Act) 15–2(B) KCCR 562, 2001Hun-Ma163, December 18, 2003. (Long-Term Constant Handcuffing Case) 16–1 KCCR 601, 2003Hun-Ma814, April 29, 2004. (Dispatching National Armed Forces to Iraq Case) 16–1 KCCR 609, 2004Hun-Na1, May 14, 2004. (Presidential Impeachment Case) 16–2 KCCR 297, 2003Hun-Ba85, August 26, 2004. (Review article 7, sections 1 and 5, of the National Security Act) 16–2(A) KCCR 141, 2002Hun-Ka1, August 24, 2004. (Conscientious Objection of Military Service Case) 16–2(A) KCCR 543, 2000Hun-Ma138, September 23, 2004. (Participation of Attorney in Interrogation of Suspects not in Custody Case) 16–2(B) KCCR 1, 2004Hun-Ma554, October 21, 2004. (Relocation of the Capital City Case) 17–1 KCCR 754, 2004Hun-Ma49, May 26, 2005. (Use of Restraints on Inmates Case) 18–1(A) KCCR 298, 2005Hun-Ma268, February 23, 2006. (Treaties on Relocation of the U.S. Military Base Case) 18–1(A) KCCR 402, 2004Hun-Ma246, March 30, 2006. (Registration Requirement of Political Parties Case) 19–1 KCCR 711, 2005Hun-Ma1139, May 31, 2007. (Disclosure of Government Officials’ Military Record Case) 19–1 KCCR 859, 2004Hun-Ma644, June 28, 2007. (Right to Vote of Nationals Residing Abroad Case) 20–2 KCCR 80, 2004Hun-Ba28, July 31, 2008. (Review of article 3 of the National Security Act) 21–2(B) KCCR 769, 2007Hun-Ma369, May 28, 2009. (Wartime Reinforcement Military Practice of 2007 Case) 22–1(A) KCCR 36, 2008Hun-Ka23, February 25, 2010. (Review of capital punishment) 218 Bibliography

22–2(B) KCCR 446, 2006Hun-Ma328, November 25, 2010. (Imposition of Duties of Military Service only on Men Case) 23–1 KCCR 178, 2008Hun-Ka21, March 31, 2011. (Review of article 92 of the Military Service Act) 23–2(A) KCCR 174, 2008Hun-Ka22, August 30, 2011. (Conscientious Objection of Military Service Case) 25–1 KCCR 180, 2010Hun-Ba70, March 21, 2013. (Presidential Emergency Decree No. 1, 2 and 9 Case) 26–2 KCCR 1, 2013Hun-Da1, December 19, 2014. (Dissolution of the Unified Progressive Party Case)

Cases dismissed by a small bench of three justices 2000Hun-Ba33, May 16, 2000. (Review of article 13 of the National Security Act) 2000Hun-Ba45, June 27, 2000. (Review of the National Security Act) 2000Hun-Ba62, August 23, 2000. (Review of article 4 of the National Security Act) 2004Hun-Ma839, November 16, 2004. (Review of statements in favor of abolishing the National Security Act) 2005Hun-Ma109, February 15, 2005. (Review of statements in favor of abolishing the National Security Act) 2009Hun-Ma121, March 31, 2009. (Review of the National Security Act)

Supreme Court of Korea 90Do1586, September 25, 1990. 90Do2033, May 31, 1992. 95Nu1405, April 9, 1996. 96Do2696, May 5, 1997. 2003Mo402, November 11, 2003. 2004Do2965, July 15, 2004. 2004Do3212, August, 30, 2004. 2007Do10121, December 9, 2010.

United States Supreme Court Boumediene v. Bush, 553 U.S. 723 (2008). Brandenburg v. Ohio, 395 U.S. 444 (1969). Cooper v. Pate, 378 U.S. 546 (1964). Dred Scott v. Sandford, 60 U.S. 393 (1857). Ex parte Endo, 323 U.S. 283 (1944). Gideon v. Wainwright, 372 U.S. 335 (1963). Bibliography 219

Gillette v. United States, 401 U.S. 437 (1971). Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hirabayashi v. United States, 320 U.S. 81 (1943). In re Gault, 387 U.S. 1 (1967). Korematsu v. United States, 323 U.S. 214 (1944). Mapp v. Ohio, 367 U.S. 643 (1961). Marbury v. Madison, 5 U.S. 137 (1803). Miranda v. Arizona, 384 U.S. 436 (1966). New York v. Quarles, 467 U.S. 649 (1984). Rasul v. Bush, 542 U.S. 466 (2004). Schenck v. United States, 249 U.S. 47 (1919). United States v. Seeger, 380 U.S. 163 (1965). Welsh v. United States, 398 U.S. 333 (1970). Wolff v. McDonnell, 418 U.S. 539 (1974).

Supreme Court of Israel HCJ 5100/94, Public Committee against Torture in Israel v. State of Israel (1999). HCJ 7015/02, Ajuri v. Commander of the IDF Forces in the West Bank (2002). HCJ 7052/03, Adalah v. Minister of Interior (2006).

Federal Constitutional Court of Germany BVerfGE 2, 1 (1952). BVerfGE 5, 85 (1956). BVerfGE 7, 198 (1958).

Constitutional Chamber of the Supreme Court of Costa Rica Resoluci ón 2004–09992 (2004).

Constitutional Court of Hungary Dec. 11/1992 (III.5) AB: ABH (1992).

European Court of Human Rights Vogt v. Germany (1996) 21 EHRR 205.

The Supreme Court of Japan 1959(A)No.710 (1959). 220 Bibliography

Articles in Newspapers (arranged chronologically)

Associated Press. “North Korean Defectors Sue South Korea,” February 19, 1999. BBC News . “Seoul Frees Long-Term Prisoners,” February 22, 1999. ———. “South Korea n Law yer s’ Con st it ut iona l Appea l on Iraq Troop Dispatch Dismissed,” December 18, 2003. Choe, Sang-Hun. “South Korean Gets Suspended Sentence in Twitter Case,” New York Times , November 21, 2012. ———. “Cou r t Says South Korea n Dict ator, Father of Cu r rent President, Violated Constitution,” New York Times, March 21, 2013. ———. “South Korea n A gent s Accused of Ta r r i ng Opposit ion before Elect ion,” New York Times , July 14, 2013. ———. “South Korea n Gover n ment Seek s Ba n on Sm a l l L ef t ist Pa r t y,” New York Times, November 5, 2013. ———. “South Korea n Law m a ker Ja i led on Trea son Cha rges,” New York Times, February 17, 2014. ———. “U.S. a nd South Korea A g ree to Delay Sh i f t i n Wa r t i me Com m a nd,” New York Times , October 24, 2014. ———. “South Korea Disba nd s Pa r t y Sy mpathet ic to Nor th,” New York Times , December 19, 2014. Chosun Ilbo. “National Security Law Should Be Abolished: Roh,” May 5, 2004. ———. “Ur i Pa r t y Decides to Abol ish Nat iona l Secu r it y Law,” May 7, 20 04. ———. “Cou r t Acqu it s Th ree ‘Con scient ious Objector s,’” May 21, 20 04. ———. “Cont rover sy Heat s Up over Acqu it t a l of Con scient ious Objector s,” May 25, 2004. ———. “Proper Path of Nat iona l Secu r it y Law Debate,” Ju ly 9, 20 04. ———. “4 4 Uncon st it ut iona l Clauses Rem a i n i n Force,” November 11, 20 08. ———. “A re Jud ges Ent it led to Thei r Opi n ion?,” October 2 , 20 09. ———. “Laws to Avoid Con f l ict a f ter Reu n i f icat ion Is a n Impor t a nt Step,” September 30, 2010. ———. “For mer Jud ge Na med Pr i me M i n ister,” Ja nua r y 25, 2013. Donga Ilbo . “Hanchongnyon Still an Outlawed Body,” April 25, 2001. ———. “Nat iona l Hu m a n R ig ht s Com m ission of Korea Urges Abol it ion of Nat iona l Security Law,” August 24, 2004. ———. “Ta sk s for the New Supreme Cou r t Ch ief,” September 22 , 2011. ———. “W hy Jud ges Have L ost Publ ic Tr ust,” Ja nua r y 27, 2012 . ———. “Disba nd ment of a Pa r t y Benef it i ng Nor th Korea,” Aug ust 20, 2013. ———. “Nor th Korea Used Prog ressive Pa r t y a s Dvoke for Revolut ion i n South Korea,” December 7, 2013. ———. “Ca r ter Center’s M isg u ided St atement on Seou l ’s Hu m a n R ig ht s,” December 29, 2014. Economist . “South Korea and Iraq: Murder and Its Consequences,” June 24, 2004. Bibliography 221

———. “Con scr ipt ion i n South Korea: Ha l ly u Elv is a nd the Dra f t-Dod ger,” May 10, 2011. French, Howard. “South Korea Faces a Test of Conscience over the Draft,” New York Times , May 8, 2002. Harlan, Chico. “In South Korea’s Latest Controversies, Spy Agency Takes a Leading Role,” Washington Post, July 6, 2013. Hankyoreh. “South Korean Junta Punished Civilians with Military Camp in Early 1980s,” November 11, 2006. ———. “Korea’s Jehova h ’s Wit nesses Saw Deep Ha rd sh ip,” Apr i l 30, 20 07. ———. “Five Con scient ious Objector s Vi nd icated a f ter Death,” Ja nua r y 16, 20 09. ———. “Cont i nued Den ia l of the R ig ht to Con scient ious Object ion,” Ja nua r y 17, 20 09. ———. “With No A lter nat ive, Con scient ious Objector s Face Ja i l Ti me,” Febr ua r y 14, 2011. ———. “Peacem a ker s,” May 16, 2011. ———. “Gover n ment’s Respon sibi l it y towa rd Com for t Women,” Aug ust 31, 2011. ———. “Con st it ut iona l Cou r t Deem s Abor t ion a Cr i m i na l Of fen se,” Aug ust 25, 2012. ———. “Embat t led Prog ressive Pa r t y Need s to Fi nd Some Com mon Sen se,” September 2, 2013. ———. “Korea n Elder s Weig h i n Ongoi ng N IS Sca nd a l,” September 4, 2013. ———. “U PP’s Prog ressive Plat for m Blow n Up i nto ‘Pro -Nor th Korea,’” November 6, 2013. ———. “The Con st it ut iona l Cou r t’s Dead ly Blow ag a i n st South Korea Democrac y,” December 19, 2014. JoonaAng Ilbo . “Top Court Says Security Law Is Still Necessary,” August 27, 2004. ———. “Pol l Fi nd s L ess Tr ust i n Blue House Tha n i n Cong lomerates,” May 25, 2005. ———. “People Tr ust Cong lomerates R ather Tha n Pol it ica l Pa r t ies,” Ju ne 14, 20 08. ———. “Cou r t Sides w ith Gover n ment on U.S. Beef Impor t Decision,” December 27, 2008. ———. “Pa r t ies at Odd s over Con st it ut iona l Cou r t Ch ief,” Ja nua r y 15, 2013. ———. “Con st it ut iona l Cou r t on Br i n k of Li mbo,” Ma rch 19, 2013. ———. “Pa rk Chu ng Hee’s Decrees Ru led Uncon st it ut iona l,” Ma rch 22 , 2013. ———. “Su r vey Fi nd s Approva l of U PP Ba n,” December 22 , 2014. ———. “A Ba la nced Ru l i ng,” Ja nua r y 23, 2015. Korea Herald . “Draft Scandal Involves 133 Army Officers, Including Seven Generals,” June 23, 1998. ———. “Law yer s’ Group Headed by Ex-Independent Cou n sel Work s to Abol ish the National Security Law,” May 6, 2002. ———. “Law yer Groups Seek A l l ia nce on R ig ht s,” Febr ua r y 18, 20 03. ———. “Law yer s’ Group ‘Bra i n Pool ’ for Roh: President Fi l l s Key Gover n ment Post s with Attorneys from ‘Minbyun,’” March 28, 2003. 222 Bibliography

Korea Herald. “Civic Group to Carry Out Rejection Campaign against Unfit Politicians,” January 13, 2004. ——— . “Seoul Court Allows Jehovah’s Witnesses to Skip Military Duty,” May 22, 2004. ———. “Pioneer s of Civ ic Act iv ism i n Korea,” May 2 , 20 07. ———. “Cha ng i ng Face of Pol it ica l Pa r t icipat ion i n the Era of Democrat i z at ion,” December 17, 2007. ———. “Too Ma ny Law yer s,” December 9, 2010. ———. “Con st it ut iona l Cou r t Ch ief Nom i nee Resig n s u nder Pressu re,” Febr ua r y 13, 2013. ———. “Con st it ut iona l Cou r t Ch ief Nom i nee Gr i l led over A l leged Eth ica l Lapses,” April 9, 2013. ———. “Shou ld Adu lter y Be a Cr i me?,” May 13, 2013. ———. “Does the Con st it ut ion Need Cha ng i ng?,” Aug ust 26, 2013. ———. “M i n ist r y Fi les for Dissolut ion of Un i f ied Prog ressive Pa r t y,” November 5, 2013. ———. “Pa rk Ca l l s U PP Dissolut ion ‘H istor ica l Decision,’” December, 20, 2014. Korea Times . “Conscription-Related Allegations Continue to Be Exposed,” June 12, 1998. ——— . “15 -Yea r Pr ison Ter m Soug ht for Professor Song Du-y u l,” September 3, 2004. ——— . “The Ca se of World ’s L ongest Ser v i ng Pol it ica l Pr isoner s,” Febr ua r y 20, 2011. ———. “Con scient ious Objector s: Ti me to Con sider Int roduci ng A lter nat ive Service,” November 28, 2012. ———. “U PP Member s Fig ht for Publ ic Sy mpathy,” November 16, 2013. ———. “Just ice K i m Voices On ly Opposit ion,” December 19, 2014. Kristof, Nicholas. “Seoul Indicts Ex-President on Bribery Charges,” New York Times , January 13, 1996. ———. “New South Korea L eader Gra nt s Sweepi ng A m nest y to 5.5 M i l l ion,” New York Times , March 13, 1998. Law Times. “Yi Hongnok py ŏ nhosa,” May 2, 2003. New York Times . “Excerpts from Speech by Seoul Party Chief,” June 30, 1987. ———. “Cost a R ica Drops Out of Coa l it ion,” September 10, 20 04. Pollack, Andrew. “New Korean Leader Agrees to Pardon of 2 Ex-Dictators,” New York Times , December 21, 1997. Strom, Stephanie. “South Korea’s President to Free Even the Unrepentant Political Prisoners,” New York Times , July 2, 1998. Sullivan, Kevin. “Seoul Frees Political Prisoner of 41 Years,” Washington Post, February 26, 1999. Yonhap News Agency. “Constitutional Court Upholds Ban on ‘Seditious Books’ in Military,” October 28, 2005. ———. “Con scient ious Objector s Fi le Pet it ion w ith Con st it ut iona l Cou r t,” Ju ne 18, 2013. Bibliography 223

Non-governmental Organizations’ Publications and Reports (arranged chronologically)

Amnesty International. South Korea: Violations of Human Rights. London: Amnesty International, ASA 25/16/86, 1986. ———. South Korea: Detention of Prisoners of Conscience and Torture Continue. London: Amnesty International, ASA 25/16/88, 1988. ———. South Korea: Government Comments on Amnesty International Report. London: Amnesty International, ASA 25/15/90, 1990. ———. South Korea: Revision of the National Security Law and of the Law on the Agency for National Security Planning. London: Amnesty International, ASA 25/25/90, 1990. ———. South Korea: Long-Term Political Prisoners: Return to “Repressive Force and Torture”? London: Amnesty International, ASA 25/42/89, 1990. ———. South Korea: Prisoners Held for National Security Offences. London: Amnesty International, ASA 25/25/91, 1991. ———. South Korea: Arrests of Political Prisoners during 1991. London: Amnesty International, ASA 25/34/91, 1991. ———. South Korea: Amnesty International’s Concerns . London: Amnesty International, ASA 25/14/92, 1992. ———. South Korea: Prisoner of Conscience Kim Nak-jung . London: Amnesty International, ASA 25/18/93, 1993. ———. South Korea: Human Rights Violations Continue under the New Government. London: Amnesty International, ASA 25/08/94, 1994. ———. South Korea: Summary of Amnesty International’s Concerns. London: Amnesty International, ASA 25/36/94, 1994. ———. Republic of Korea: International Standards, Law and Practice: The Need for Human Rights Reform. London: Amnesty International, ASA 25/25/95, 1995. ———. South Korea: Amnesty International Appeals to Government to Halt Deterioration of Human Rights Situation. London: Amnesty International, ASA 25/24/96, 1996. ———. South Korea: Five Trade Union Leaders Released, Arrest Warrants against 15 Others Suspended. London: Amnesty International, ASA 25/03/97, 1997. ———. South Korea: Suh Jun-sik, Aged 49, Human Rights Activist. London: Amnesty International, ASA 25/01/98, 1998. ———. South Korea: Prisoners Still Held under the National Security Law. London: Amnesty International, ASA 25/15/98, 1998. ———. South Korea: On Trial for Defending His Rights: The Case of Human Rights Activist Suh Jun-sik. London: Amnesty International, ASA 25/18/98, 1998. ———. South Korea: Summary of Amnesty International’s Concerns and Recommendations to the Government. London: Amnesty International, ASA 25/27/98, 1998. ———. Questions and Answers about Amnesty International’s Work on South Korea. London: Amnesty International, ASA 25/30/98, 1998. ———. South Korea: Summary of Concerns. London: Amnesty International, ASA 25/01/99, 1999. 224 Bibliography

Amnesty International. South Korea: Workers’ Rights at a Time of Economic Crisis. London: Amnesty International, ASA 25/02/99, 1999. ———. South Korea: Time to Reform the National Security Law. London: Amnesty International, ASA 25/03/99, 1999. ———. South Korea: Amnesty International Appeal: Prisoner of Conscience Cho Sang-nok. London: Amnesty International, ASA 25/08/99, 1999. ———. South Korea: Prisoners of Conscience: Silenced for Speaking Out. London: Amnesty International, ASA 25/001/2002, 2002. ———. South Korea: Amnesty International’s Comments on the National Human Rights Commission Act: Towards an Autonomous, Effective National Human Rights Commission. London: Amnesty International, ASA 25/002/2002, 2002. ———. South Korea: Summary of Concerns and Recommendations to Candidates for the Presidential Elections in December 2002. London: Amnesty International, ASA 25/007/2002, 2002. ———. South Korea: Amnesty of Political Prisoners: A Step in the Right Direction. London: Amnesty International, ASA 25/002/2003, 2003. ———. South Korea: Open Letter to Acting President Goh Kun: Continued Use of the Draconian National Security Law. London: Amnesty International, ASA 25/003/2004, 2004. ———. South Korea: Open Letter to All Leaders of Political Parties: An Important Duty to Revitalise Efforts to Fundamentally Repeal or Review the National Security Law. London: Amnesty International, ASA 25/009/2004, 2004. ———. 2006 Elections to the Human Rights Council: Background Information on Candidate Countries . London: Amnesty International, IOR 41/006/2006, 2006. ———. South Korea: Repeal or Fundamentally Reform the National Security Law. London: Amnesty International, ASA 25/011/2008, 2008. ———. Policing the Candlelight Protests in South Korea. London: Amnesty International, ASA 25/008/2008, 2008. ———. Human Rights Concerns in the Republic of Korea: Amnesty International Submission to the UN Universal Periodic Review. London: Amnesty International, ASA 25/001/2012, 2012. ———. South Korea: National Security Law Continues to Restrict Freedom of Expression. London: Amnesty International, ASA 25/001/2015, 2015. Asia Watch Committee. A Stern, Steady Crackdown. Legal Process and Human Rights in South Korea. Washington, DC: Asia Watch Committee, 1987. ———. Freedom of Expression in the Republic of Korea. Washington, DC: Asia Watch Committee, 1988. ———. Retreat from Reform: Labor Rights and Freedom of Expression in South Korea. New York: Asia Watch Committee, Human Rights Watch, 1990. ———. South Korea: Labor Rights Violations under Democratic Rule. New York: Asia Watch Committee, Human Rights Watch, 1995. Asian Center for Human Rights. Time To Go: NSL of Republic of Korea. New Delhi: Asian Center for Human Rights, ACHRF/39/2004, 2004. Asian Human Rights Commission. Scholar Song Du-yul Indicted for Violating the National Security Law. Hong Kong: Asian Human Rights Commission, UP-48– 2003, 2003. Bibliography 225

International Crisis Group. Risks of Intelligence Pathologies in South Korea . Brussels: International Crisis Group, Asia Report No.259, 2014. Minbyun (Lawyers for a Democratic Society). Minbyŏ n paeks ŏ ( Minbyun White Paper ). Seoul: Minju sahoe r ŭ l wihan pyŏ nhosa moim, 1998. ———. Human Rights in South Korea: The Second Counter Report to the Second Periodic Report of the Republic of Korea Under Article 40 of the International Covenant on Civil and Political Rights . Seoul: Minju sahoe r ŭ l wihan pyŏ nhosa moim, 1999. ———. Kim Tae-jung ch ŏ ngbu 1-y ŏ n, kukka poanpŏ p pogos ŏ ( Report on the National Security Act in the first year of Kim Dae-jung’s governement ). Seoul: Minju sahoe r ŭ l wihan pyŏ nhosa moim, 1999. ———. 2000-y ŏ n kukka poanp ŏ p pogos ŏ ( 2000 Report on the National Security Act ). Seoul: Minju sahoe rŭ l wihan pyŏ nhosa moim, 2001. ———. Kukka poanpŏ p ŭ l ŏ psaera! Kukka poanpŏ p p’yeji haes ŏ lso (Let’s Remove the National Security Act! Handbook to Abolish the National Security Act ). Seoul: Minju sahoe rŭ l wihan pyŏ nhosa moim, 2004. ———. 2008 – 2010 Kukka poanb ŏ p pogos ŏ (Report on the National Security Act, 2008 – 2010 ). Seoul: Minju sahoe r ŭ l wihan pyŏ nhosa moim, 2011.

Governmental and International Organizations’s Publications and Reports (arranged chronologically)

Constitutional Court of Korea. Constitutional Court Decisions, Volume I: 1998 – 2004 . Seoul: Constitutional Court of Korea, 2006. ———. Constitutional Court Decisions, Volume II: 2005 – 2008 . Seoul: Constitutional Court of Korea, 2009. ———. Constitutional Court Decisions: 2009 . Seoul: Constitutional Court of Korea, 2010. ———. Constitutional Court Decisions: 2010 . Seoul: Constitutional Court of Korea, 2012. ———. Twenty Years of the Constitutional Court of Korea . Seoul: Constitutional Court of Korea, 2008. Ministry of Unification of the Republic of Korea. Manual for the Resettlement Support for North Korean Refugees. Seoul: Ministry of Unification, 2014. National Human Rights Commission of Korea. Kukka poanpŏ p ch ŏ gyongsa esŏ nat’anan inkw ŏ n silt’ae ( Report on the Situation of Human Rights Arising from the Application of the National Security Act ). Seoul: Minjuhwa silch’ ŏ n kajok undong hyŏb ŭ ihoe, 2004. ———. Annual Report 2005 . Seoul: National Human Rights Commission, 2005. ———. Our First Three Years and Challenges Ahead . Seoul: National Human Rights Commission of Korea, 2005. ———. Methodology for Human Rights Education for the Police. Seoul: National Human Rights Commission of Korea, 2008. Presidential Truth Commission on Suspicious Deaths of the Republic of Korea. A Hard Journey to Justice: First Term Report by the Presidential Truth Commission on Suspicious Deaths of the Republic of Korea . Seoul: Samin Books, 2004. 226 Bibliography

Truth and Reconciliation Commission of the Republic of Korea. Truth and Reconciliation: Activities of the Past Three Years . Seoul: Truth and Reconciliation Commission of the Republic of Korea, 2008. United Nations Commission on Human Rights. Conscientious Objection to Military Service. Geneva: United Nations, E/CN.4/RES/1987/46, 1987. United Nations Committee against Torture. Second Periodic Report of the Republic of Korea. Geneva: United Nations, CAT/C/SR.711, 2006. U.S. Congressional Research Service. North Korean Provocative Actions: 1950 – 2007 . Washington, DC: U.S. Library of Congress, 2007.

General References

Books Agamben, Giorgio. State of Exception . Chicago: University of Chicago Press, 2005. Alford, William P., ed. Raising the Bar: The Emerging Legal Profession in East Asia . Cambridge, MA: Harvard University Press, 2007. Becker, Theodore L., and Malcolm M. Feeley, eds. The Impact of Supreme Court Decisions: Empirical Studies . New York: Oxford University Press, 1973. Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics . New Haven, CT: Yale University Press, 1986 [c1961]. Bradley, Mark Philip, and Patrice Petro, eds. Truth Claims: Representation and Human Rights . New Brunswick: Rutgers University Press, 2002. Choudhry, Sujit, ed. Constitutional Design for Divided Societies: Integration or Accommodation? Oxford: Oxford University Press, 2008. ———, ed. The Migration of Constitutional Ideas . Cambridge: Cambridge University Press, 2010. Clayton, Cornell W., and Howard Gillman, eds. Supreme Court Decision-Making: New Institutionalist Approaches . Chicago: University of Chicago Press, 1998. Commaille Jacques, Laurence Dumoulin, and C écile Robert, eds. La juridicisation du politique . Paris: LGDJ, 2000. Davenport, Christian. Paths to State Repression: Human Rights Violations and Contentious Politics . Lanham: Rowman and Littlefield, 2000. Della Porta, Donatella, and Herbert Reiter, eds. Policing Protest: The Control of Mass Demonstrations in Western Democracies . Minneapolis: University of Minnesota Press, 1998. Delmas-Marty, Mireille. Libert é s et s ûret é s dans un monde dangereux . Paris: Seuil, 2010. Dezalay, Yves, and Bryant G. Garth. Asian Legal Revivals: Lawyers in the Shadow of Empire . Chicago: University of Chicago Press, 2010. ———, ed s. Lawyers and the Rule of Law in an Era of Globalization . New York: Routledge, 2011. Dressel, Bjö rn, ed. The Judicialization of Politics in Asia . New York: Routledge, 2012. Bibliography 227

Elster, Jon. Closing the Books: Transitional Justice in Historical Perspective . New York: Columbia University Press, 2004. ———. Ulysses and the Sirens: Studies in Rationality and Irrationality . Cambridge: Cambridge University Press, 1979. ———. Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints . Cambridge: Cambridge University Press, 2000. Elster, Jon, and Rune Slagstad, eds. Constitutionalism and Democracy . Cambridge: Cambridge University Press, 1993. Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective . Chicago: University of Chicago Press, 1998. Epstein, Lee, and Jack Knight. The Choices Justices Make . Washington, DC: CQ Press, 1998. Feeley, Malcolm M., and Edward L. Rubin. Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons . Cambridge: Cambridge University Press, 1998. Finn, John E. Constitutions in Crisis: Political Violence and the Rule of Law . New York: Oxford University Press, 1991. Foucault, Michel. Discipline and Punish: The Birth of the Prison . New York: Vintage Books, 1995 [Surveiller et punir: Naissance de la prison. Paris: Gallimard, 1975]. ———. Il faut dé fendre la soci é t é : Cours au Collè ge de France, 1975–1976 . Paris: Gallimard, 1997. ———. Sé curité , territoire, population: Cours au Collè ge de France, 1977–1978 . Paris: Gallimard, 2004. Ginsburg, Tom, and Tamir Moustafa, eds. Rule By Law: The Politics of Courts in Authoritarian Regimes . Cambridge: Cambridge University Press, 2008. Greenberg, Douglas, Stanley Katz, Melanie Oliviero, and Steven Wheatley, eds. Constitutionalism and Democracy: Transitions in the Contemporary World . New York: Oxford University Press, 1993. Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza . Berkeley: University of California Press, 2005. Halliday, Terence C., Lucien Karpik, and Malcolm M. Feeley, eds. Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism . Oxford: Hart Publishing, 2007. Harding, Andrew, and Penelope Nicholson, eds. New Courts in Asia . London: Routledge, 2010. Helmke, Gretchen. Courts under Constraints: Judges, Generals, and Presidents in Argentina . Cambridge: Cambridge University Press, 2005. Helmke Gretchen, and Julio R íos-Fig ueroa, eds. Courts in Latin America . Cambridge: Cambridge University Press, 2011. Hirsch, Susan F. Pronouncing and Persevering: Gender and Discourses of Disputing in an African Islamic Court . Chicago: University of Chicago Press, 1998. Hirschl, Ran. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism . Cambridge, MA: Harvard University Press, 2004. Horowitz, Donald L. Constitutional Change and Democracy in Indonesia . Cambridge: Cambridge University Press, 2013. 228 Bibliography

Isra ël, Liora. L’arme du droit . Paris: Presses de Sciences Po, 2009. Kelsen, Hans. Pure Theory of Law . Berkeley: University of California Press, 1967 [c1934]. Kommers, Donald P., and Russel A. Miller. The Constitutional Jurisprudence of the Federal Republic of Germany . Durham: Duke University Press, 2012. Kretzmer, David. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories . Albany: State University of New York Press, 2002. Laurens, Henry, and Mireille Delmas-Marty, eds. Terrorismes: Histoire et droit. Paris: CNRS, 2009. Lustick, Ian. Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza . Ithaca, NY: Cornell University Press, 1993. McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies . Notre Dame: University of Notre Dame Press, 1997. Mengin, Fran çoise. Fragments of an Unfinished War: Taiwanese Entrepreneurs and the Partition of China . London: Hurst, 2015. Mitchell, Richard H. Janus-Faced Justice: Political Criminals in Imperial Japan . Honolulu: University of Hawai‘i Press, 1992. ———. Thought Control in Prewar Japan . Ithaca, NY: Cornell University Press, 1976. Moustafa, Tamir. The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge: Cambridge University Press, 2007. Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order . Baltimore: Johns Hopkins University Press, 2007. ———. Elements of Judicial Strategy . Chicago: University of Chicago Press, 1964. Nalepa, Monika. Skeletons in the Closet: Transitional Justice in Post-Communist Europe . Cambridge: Cambridge University Press, 2010. Posner, Richard A. Not a Suicide Pact: The Constitution in a Time of National Emergency . New York: Oxford University Press, 2006. Povinelli, Elizabeth. The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism . Durham: Duke University Press, 2002. Ranci è re, Jacques. Disagreement: Politics and Philosophy . Minneapolis: University of Minnesota Press, 1999 [La m ésentente: Politique et philosophie. Paris: Galil é e, 1995]. ———. Dissensus: On Politics and Aesthetics . London: Continuum, 2010 [Le partage du sensible: Esthé tique et politique. Paris: la Fabrique, 2000]. Rehnquist, William H. All the Laws But One: Civil Liberties in Wartime. New York: Knopf, 1998. Roach, Kent. The 9/11 Effect: Comparative Counter-Terrorism . Cambridge: Cambridge University Press, 2011. Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change . Chicago: University of Chicago Press, 1991. Rosenfeld, Michel, and Andr á s Sajó , eds. The Oxford Handbook of Comparative Constitutional Law . Oxford: Oxford University Press, 2012. Rosett, Arthur, Lucie Cheng, and Margaret Y. K. Woo, eds. East Asian Law: Universal Norms and Local Cultures . London: RoutledgeCurzon, 2003. Bibliography 229

Schubert, Glendon A. The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946–1963 . Evanston: Northwestern University Press, 1965. Schwartz, Herman. The Struggle for Constitutional Justice in Post-Communist Europe . Chicago: University of Chicago Press, 2000. Schwartzberg, Melissa. Democracy and Legal Change . Cambridge: Cambridge University Press, 2007. Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model . Cambridge: Cambridge University Press, 1993. Stone Sweet, Alec. The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective . New York: Oxford University Press, 1992. ———. Governing with Judges: Constitutional Politics in Europe . Oxford: Oxford University Press, 2000. Sunstein, Cass R. One Case at a Time: Judicial Minimalism on the Supreme Court . Cambridge, MA: Harvard University Press, 1999. Tan, Poh-Ling, ed. Asian Legal Systems: Law, Society, and Pluralism in East Asia . Sydney: Butterworths, 1997. Taylor, Veronica, ed. Asian Laws through Australian Eyes . Sidney: LBC Information Services, 1997. Troper, Michel. Le droit et la n é cessit é . Paris: Presses Universitaires de France, 2011. Vanberg, Georg. The Politics of Constitutional Review in Germany . Cambridge: Cambridge University Press, 2005.

Book Chapters Chavez, Rebecca Bill. “The Rule of Law and Courts in Democratizing Regimes.” In The Oxford Handbook of Law and Politics , edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, pp. 63–80. Oxford: Oxford University Press, 2008. Coomeraswamy, Radhika. “Uses and Usurpation of Constitutional Ideology.” In Constitutionalism and Democracy: Transitions in the Contemporary World , edited by Douglas Greenberg, Stanley Katz, Melanie Oliviero, and Steven Wheatley, pp. 159–171. New York: Oxford University Press, 1993. Elster, Jon. “Executive-Legislative Relations in Three French Constitution-Making Episodes.” In Revolusjon og Resonnement , edited by Øystein Rian, pp. 67–99. Olso: Norwegian University Press, 1995. Ferejohn, John, and Pasquale Pasquino. “Emergency Powers.” In The Oxford Handbook of Political Theory , edited by John S. Dryzek, Bonnie Honig, and Anne Phillips, pp. 333–348. Oxford: Oxford University Press, 2006. Geertz, Clifford. “Local Knoweldge: Fact and Law in Comparative Perspective.” In Local Knowledge: Further Essays in Interpretive Anthropology , pp. 167–234. New York: Basic Books, 1983. Ginsburg, Tom. “The Global Spread of Constitutional Review.” In The Oxford Handbook of Law and Politics , edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, pp. 81–98. Oxford: Oxford University Press, 2008. 230 Bibliography

Halmai, G ábor, and Kim Lane Scheppele. “Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past.” In Transitional Justice and the Rule of Law In New Democracies , edited by A. James McAdams, pp. 155–184. Notre Dame: University of Notre Dame Press, 1997. Hilbink, Lisa. “Politicising Law to Liberalise Politics: Anti-Francoist Judges and Prosecutors in Spain’s Democratic Transition.” In Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism , edited by Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley, pp. 403–436. Oxford: Hart Publishing, 2007. Holmes, Stephen. “Precommitment and the Paradox of Democracy.” In Constitutionalism and Democracy , edited by Jon Elster and Rune Slagstad, pp. 195–240. Cambridge: Cambridge University Press, 1993. Manin, Bernard. “The Emergency Paradigm and the New Terrorism.” In Les usages de la s éparation des pouvoirs , edited by Sandrine Baume and Biancamaria Fontana, pp. 136–171. Paris: Michel Houdiard, 2008. McAdams, A. James. “Communism on Trial: The East German Past and the German Future.” In Transitional Justice and the Rule of Law in New Democracies , edited by A. James McAdams, pp. 239–267. Notre Dame: University of Notre Dame Press, 1997. McClure, Kirstie. “On the Subject of Rights: Pluralism, Plurality, and Political Identity.” In Dimensions of Radical Democracy: Pluralism, Citizenship, Community , edited by Chantal Mouffe, pp. 108–127. London: Verso, 1992. Murphy, Walter F. “Constitutions, Constitutionalism, and Democracy.” In Constitutionalism and Democracy: Transitions in the Contemporary World , edited by Douglas Greenberg, Stanley Katz, Melanie Oliviero, and Steven Wheatley, pp. 3–7. New York: Oxford University Press, 1993. Raychaudhuri, Tapan. “Constitutionalism and the Nationalist Discourse: The Indian Experience.” In Constitutionalism and Democracy: Transitions in the Contemporary World , edited by Douglas Greenberg, Stanley Katz, Melanie Oliviero, and Steven Wheatley, pp. 197–214. New York: Oxford University Press, 1993. Rosenfeld, Michel. “La pond é ration juridique en temps de stress: Une perspective constitutionnelle comparative.” In Terrorismes: Histoire et droit , edited by Henry Laurens and Mireille Delmas-Marty, pp. 219–290. Paris: CNRS, 2009. Scheppele, Kim Lane. “Legal and Extralegal Emergencies.” In The Oxford Handbook of Law and Politics , edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, pp. 165–186. Oxford: Oxford University Press, 2008. ———. “The M ig rat ion of A nt i- Con st it ut iona l Idea s: The Post-9/11 Globa l i z at ion of Public Law and the International State of Emergency.” In The Migration of Constitutional Ideas , edited by Sujit Choudhry, pp. 347–373. Cambridge: Cambridge University Press, 2010. Slagstad, Rune. “Liberal Constitutionalism and Its Critics: Carl Schmitt and Max Weber.” In Constitutionalism and Democracy , edited by Jon Elster and Rune Slagstad, pp. 103–130. Cambridge: Cambridge University Press, 1993. Bibliography 231

Sunstein, Cass R. “Constitutions and Democracies: An Epilogue.” In Constitutionalism and Democracy , edited by Jon Elster and Rune Slagstad, pp. 327–356. Cambridge: Cambridge University Press, 1993. Waxman, Seth P. “The Combatant Detention Trilogy through the Lenses of History.” In Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases , edited by Peter Berkowitz, pp. 1–36. Stanford: Hoover Institution Press, 2005. Wilson, Bruce. “Enforcing Rights and Exercising an Accountability Function: Costa Rica’s Constitutional Chamber of the Supreme Court.” In Courts in Latin America , edited by Gretchen Helmke and Julio Rí os-Figueroa, pp. 55–80. Cambridge: Cambridge University Press, 2011.

Articles Ackerman, Bruce, and Neal Katyal. “Our Unconventional Founding.” University of Chicago Law Review 62, no. 2 (1995): 475–573. Alexy, Robert. “Constitutional Rights, Balancing, and Rationality.” Ratio Juris 16, no. 2 (2003): 131–140. Arato, Andrew. “Constitutional Learning.” Theoria 52, no. 106 (2005): 1–36. Bisharat, George. “Courting Justice? Legitimation in Lawyering under Israeli Occupation.” Law and Social Inquiry 20, no. 2 (1995): 349–405. Cain, Edward R. “Conscientious Objection in France, Britain, and the United States.” Comparative Politics 2, no. 2 (1970): 275–307. Cover, Robert M. “Nomos and Narrative.” Harvard Law Review 97, no. 1 (1983): 4–65. Dahl, Robert A. “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker.” Journal of Public Law 6, no. 1 (1957): 279–295. Ellman, Stephen. “Struggle and Legitimation.” Law and Social Inquiry 20, no. 2 (1995): 339–348. Elster, Jon. “Constitutionalism in Eastern Europe: An Introduction.” University of Chicago Law Review 58, no. 2 (1991): 447–482. ———. “Con st it ut ion-Ma k i ng a nd Violence.” Journal of Legal Analysis 4, no. 1 (2012): 7–39. ———. “Don’t Bu r n You r Br id ge before You Come to It: Some A mbig u it ies a nd Complexities of Precommitment.” Texas Law Review 81, no. 7 (2003): 1751–1787. ———. “Forces a nd Mecha n ism s i n the Con st it ut ion-Ma k i ng Process.” Duke Law Journal 45, no. 2 (1995): 364–396. Ewald, Fran çois. “Une expé rience foucaldienne: Les principes g én é raux du droit.” Critique 42, no. 471–472 (1986): 788–793. Ferejohn, John, and Pasquale Pasquino. “Constitutional Adjudication: Lessons from Europe.” Texas Law Review 82, no. 7 (2004): 1671–1704. ———. “The Law of Except ion: A Ty polog y of Emergenc y Power s.” International Journal of Constitutional Law 2, no. 2 (2004): 210–239. 232 Bibliography

Fisher, Louis. “Judicial Review of the War Power.” Presidential Studies Quarterly 35, no. 3 (2005): 466–495. Freeman, Samuel. “Constitutional Democracy and the Legitimacy of Judicial Review.” Law and Philosophy 9, no. 4 (1990): 327–370. Fuentes, Claudio. “A Matter of the Few: Dynamics of Constitutional Change in Chile, 1990–2010.” Texas Law Review 89, no. 7 (2011): 1741–1775. Galanter, Marc. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law and Society Review 9, no. 1 (1974): 95–160. Gross, Oren. “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” Yale Law Journal 112, no. 5 (2003): 1011–1034. Haggard, Stephan, and Robert Kaufman. “The Political Economy of Democratic Transitions.” Comparative Politics 29, no. 3 (1997): 263–283. Hall, Peter A., and Rosemary C.R. Taylor. “Political Science and the Three New Institutionalisms.” Political Studies 44, no. 5 (1996): 936–957. Henkin, Louis. “Is There a ‘Political Question’ Doctrine?” Yale Law Journal 85, no. 5 (1976): 597–625. Hirschl, Ran. “The Judicialization of Mega-Politics and the Rise of Political Courts.” Annual Review of Political Science 11, no. 1 (2008): 93–118. ———. “The Rea l ist Tu r n i n Compa rat ive Con st it ut iona l Pol it ics.” Political Research Quarterly 62, no. 4 (2009): 825–833. Jakobs, G ünther. “Aux limites de l’orientation par le droit: Le droit p énal de l’ennemi.” Revue de science criminelle et de droit p é nal compar é 33, no. 1 (2009): 7–18. Kretzmer, David. “The Law of Belligerent Occupation in the Supreme Court of Israel.” International Review of the Red Cross 94, no. 885 (2012): 207–236. Lascoumes, Pierre. “Ruptures politiques et politiques pé nitentiaires: Analyse comparative des dynamiques de changement institutionnel.” D é viance et soci é t é 30, no. 3 (2006): 405–419. Loewenstein, Karl. “Militant Democracy and Fundamental Rights I.” American Political Science Review 31, no. 3 (1937): 417–432. ———. “M i l it a nt Democrac y a nd Fu nd a ment a l R ig ht s II.” American Political Science Review 31, no. 4 (1937): 638–658. Mitchell, Richard H. “Japan’s Peace Preservation Law of 1925: Its Origins and Significance.” Monumenta Nipponica 28, no. 3 (1973): 317–345. Miyazawa, Setsuo. “Where Are We Now and Where Should We Head For? A Reflection on the Place of East Asia on the Map of Socio-Legal Studies.” Pacific Rim Law and Policy Journal 22, no. 1 (2013): 113–140. Moe, Terry. “Power and Political Institutions.” Perspectives on Politics 3, no. 2 (2005): 215–233. North, Douglass C., and Barry R. Weingast. “Constitutions and Commitment: Evolution of Institutions Governing Public Choice in Seventeenth-Century England.” Journal of Economic History 49, no. 4 (1989): 803–832. Oppler, Alfred C. “The Sunakawa Case: Its Legal and Political Implications.” Political Science Quarterly 76, no. 2 (1961): 241–263. Bibliography 233

Pierson, Paul. “The Limits of Design: Explaining Institutional Origins and Change.” Governance 13, no. 4 (2000): 475–499. Ramseyer, J. Mark. “The Puzzling (In)Dependence of Courts: A Comparative Approach.” Journal of Legal Studies 23, no. 2 (1994): 721–747. ———. “W hy A re Japa nese Jud ges So Con ser vat ive i n Pol it ica l ly Cha rged Ca ses?” American Political Science Review 95, no. 2 (2001): 331–344. Sch önberger, Christoph. “La constitution allemande, la cour de Karlsruhe, et le ‘patriotisme constitutionnel.’” Conference paper presented at La constitution en question: Concepts et conceptions à l ’ épreuve de l ’ évolution du droit, contributions des écoles allemandes et autrichiennes , Institut Historique Allemand, Paris, January 18, 2013. Shapiro, Martin M. “Political Jurisprudence.” Kentucky Law Journal 52, no. 1 (1964): 294–345. Smith, Rogers M. “Political Jurisprudence, The ‘New Institutionalism,’ and the Future of Public Law.” American Political Science Review 82, no. 1 (1988): 89–108. Sultany, Nimer. “The Legacy of Justice Aharon Barak: A Critical Review.” Harvard International Law Journal 48, no. 83 (2007): 83–92. Tushnet, Mark. “Defending Korematsu? Reflections on Civil Liberties in Wartime.” Wisconsin Law Review 23, no. 2 (2003): 273–307. Waldron, Jeremy. “The Core of the Case Against Judicial Review.” Yale Law Journal 115, no. 6 (2006): 1346–1406. ———. “Secu r it y a nd Liber t y: The Im age of Ba la nce.” Journal of Political Philosophy 11, no. 2 (2003): 191–210. Winn, Jane Kaufman, and Tang-Chi Yeh. “Advocating Democracy: The Role of Lawyers in Taiwan’s Political Transformation.” Law and Social Inquiry 20, no. 2 (1995): 561–599.

Korea-Related References

Books Abelmann, Nancy. Echoes of the Past, Epics of Dissent: A South Korean Social Movement . Berkeley: University of California Press, 1996. Armstrong, Charles K., ed. Korean Society: Civil Society, Democracy, and the State . London: Routledge, 2007. ———. Tyranny of the Weak: North Korea and the World, 1950–1992 . Ithaca, NY: Cornell University Press, 2013. Bedeski, Robert E. The Transformation of South Korea: Reform and Reconstruction in the Six Republic under Roh Tae Woo, 1987–1992 . London: Routledge, 1994. Cha, Dongwook. The Role of the Korean Constitutional Court in the Democratization of South Korea . PhD dissertation, University of Southern California, 2005. Cho, Jung-Kwan. From Authoritarianism to Consolidated Democracy in South Korea . PhD dissertation, Yale University, 2000. 234 Bibliography

Cho, Kuk, ed. Litigation in Korea . Cheltenham: Edward Elgar, 2010. Choi, Chongko. Law and Justice in Korea: South and North . Seoul: Seoul National University Press, 2005. Choi, Jang-Jip. Democracy after Democratization: The Korean Experience . Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2012. Chun, Bong Duck, William Shaw, and Dai-Kwon Choi. Traditional Korean Legal Attitudes . Berkeley: Institute of East Asian Studies, 1980. Chung, Erin Aeran. Exercising Citizenship: Korean Identity and the Politics of Nationality in Japan . PhD dissertation, Northwestern University, 2003. ———. Immigration and Citizenship in Japan . New York: Cambridge University Press, 2010. Cotton, James, ed. Korea under Roh Tae-Woo: Democratisation, Northern Policy, and Inter- Korean Relations . St. Leonards, Australia: Allen and Unwin, 1993. Cumings, Bruce. The Origins of the Korean War, Vol. 1: Liberation and the Emergence of Separate Regimes, 1945–1947 . Princeton, NJ: Princeton University Press, 1981. ———. Vol.2: The Roaring of the Cataract, 1947–1950 . Princeton, NJ: Princeton University Press, 1990. Diamond, Larry, and Doh Chull Shin, eds. Institutional Reform and Democratic Consolidation in Korea . Stanford: Hoover Institution Press, 2000. Dudden, Alexis. Japan’s Colonization of Korea: Discourse and Power . Honolulu: University of Hawai‘i Press, 2005. Em, Henry. The Great Enterprise: Sovereignty and Historiography in Modern Korea . Durham: Duke University Press, 2013. Foley, James A. Korea’s Divided Families: Fifty Years of Separation . London: RoutledgeCurzon, 2003. Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases . Cambridge: Cambridge University Press, 2003. ———, ed. Legal Reform in Korea . London: RoutledgeCurzon, 2004. Goedde, Patricia. How Activist Lawyers Mobilized the Law for Social and Political Change in South Korea: 1988–2007 . PhD dissertation, University of Washington, 2008. Guichard, Justine. La prison de Seodaemun, lieu de mé moires: La renaissance d ’ une prison sud-coréé nne en m é morial de la ré sistance anti-coloniale . MA thesis, Sciences Po, 2009. Hahm, Pyong-Choon. Korean Jurisprudence: Politics and Culture . Seoul: Yonsei University Press, 1986. ———. Korean Political Tradition and Law: Essays in Korean Law and Legal History. Seoul: Hollym, 1967. Haggard, Stephan and Marcus Noland. Famine in North Korea: Markets, Aid, and Reform . New York: Columbia University Press, 2007. Henderson, Gregory. Korea: The Politics of the Vortex . Cambridge, MA: Harvard University Press, 1968. Hughes, Theodore. Literature and Film in Cold War South Korea: Freedom’s Frontier . New York: Columbia University Press, 2012. Jager, Sheila Miyoshi. Narratives of Nation Building in Korea: A Genealogy of Patriotism . New York: M. E. Sharpe, 2003. Bibliography 235

Kim, Hyuk-Rae. State-Centric to Contested Social Governance in Korea: Shifting Power . London: Routledge, 2013. Kim, Ilpyong, and Young Whan Kihl, eds. Political Change in South Korea . New York: Paragon House, 1988. Kim, Marie Seong-Hak. Law and Custom in Korea: Comparative Legal History . Cambridge: Cambridge University Press, 2012. Kim, Samuel S., ed. Korea’s Democratization . Cambridge: Cambridge University Press, 2003. Kim, Sunhyuk. The Politics of Democratization in Korea: The Role of Civil Society . Pittsburg: Pittsburg University Press, 2000. Koo, Hagen, ed. State and Civil Society in Contemporary Korea . Ithaca, NY: Cornell University Press, 1993. Lee, Namhee. The Making of Minjung: Democracy and the Politics of Representation in South Korea . Ithaca, NY: Cornell University Press, 2007. Lewis, Linda S. Laying Claim to the Memory of May: A Look Back at the Kwangju Uprising . Honolulu: University of Hawai‘i Press, 2002. Mo, Jongryn R., and David W. Brady, eds. The Rule of Law in South Korea . Stanford: Hoover Institution Press, 2009. Moon, Seungsook. Militarized Modernity and Gendered Citizenship in South Korea . Durham: Duke University Press, 2005. Neary, Ian. Human Rights in Japan, South Korea, and Taiwan . London: Routledge, 2002. Ogle, George. South Korea: Dissent within the Economic Miracle . London: Zed Books, 1990. Oh, John Kiechiang. Korea: Democracy on Trial . Ithaca, NY: Cornell University Press, 1968. Park, Won-Soon. A Study of the National Security Act (Kukka poanpŏ p y ŏ nʾ gu ). Seoul: Y ŏ ksa pip’y ŏ ngsa, 1989–1992. Robinson, Michael. Cultural Nationalism in Colonial Korea: 1920–1945 . Seattle: University of Washington Press, 1988. ———. Korea’s Twentieth-Century Odyssey: A Short History . Honolulu: University of Hawai‘i Press, 2007. Savada, Andrea Matles, and Willian Shaw, eds. South Korea: A Country Study . Washington, DC: U.S. Library of Congress, 1990. Scalapino, Robert, and Chong-Sik Lee. Communism in Korea . Berkeley: University of California Press, 1972. Shaw, William. Legal Norms in a Confucian State . Berkeley: Institute of East Asian Studies, 1981. ———, ed. Human Rights in Korea: Historical and Policy Perspectives . Cambridge, MA: Harvard University Press, 1991. Shin, Gi-Wook. Ethnic Nationalism in Korea: Genealogy, Politics, and Legacy . Stanford: Stanford University Press, 2006. Shin, Gi-Wook, and Paul Y. Chang, eds. South Korean Social Movements: From Democracy to Civil Society . New York: Routledge, 2011. 236 Bibliography

Shin, Gi-Wook, Paul Y. Chang, Jung-Eun Lee, and Sookyung Kim. South Korea’s Democracy Movement (1970–1993): Stanford Korea Democracy Project Report . Stanford: Walter H. Shorenstein Asia-Pacific Research Center, 2007. Shin, Gi-Wook, and Michael Robinson, eds. Colonial Modernity in Korea . Cambridge, MA: Harvard University Asia Center, 1999. Suh, Dae-Sook. The Korean Communist Movement: 1918–1948 . Princeton, NJ: Princeton University Press, 1967. Suh, Sung. Unbroken Spirits: Nineteen Years in South Korea’s Gulag . Lanham: Rowman and Littlefield, 2001. Wells, Kenneth, ed. South Korea’s Minjung Movement: The Culture and Politics of Dissidence . Honolulu: University of Hawai‘i Press, 1995. West, James M. A Critical Discourse on Korean Law and Economy . Busan: Hanguel, 2002. Yang, Hyunah, ed. Law and Society in Korea . Cheltenham: Edward Elgar, 2013. Yoon, Dae-Kyu. Law and Democracy in South Korea: Democratic Development since 1987 . Boulder: Westview Press; Seoul: Kyungnam University Press, 2010. ———. Law and Political Authority in South Korea . Boulder: Westview Press; Seoul: Kyungnam University Press, 1990. ———, ed. Recent Transformations in Korean Law and Society . Seoul: Seoul National University Press, 2000. Youm, Kyu Ho. Press Law in South Korea . Ames: Iowa State University Press, 1996.

Book Chapters Choi, Jang-Jip. “Political Cleavages in South Korea.” In State and Society in Contemporary Korea , edited by Hagen Koo, pp. 13–50. Ithaca, NY: Cornell University Press, 1993. Cumings, Bruce. “Civil Society in West and East.” In Korean Society: Civil Society, Democracy, and the State , edited by Charles K. Armstrong, pp. 9–32. London: Routledge, 2007. ———. “The L eg ac y of Colon ia l ism i n Korea.” In The Japanese Colonial Empire: 1895– 1945 , edited by Ramon H. Myers and Mark R. Peattie, pp. 478–496. Princeton, NJ: Princeton University Press, 1984. Dezalay, Yves, and Bryant G. Garth. “International Strategies and Local Transformations: Preliminary Observations on the Position of Law in the Field of State Power in Asia, South Korea.” In Raising the Bar: The Emerging Legal Profession in Asia , edited by William P. Alford, pp. 81–106. Cambridge, MA: Harvard University Press, 2007. Ginsburg, Tom. “The Constitutional Court of Korea and the Judicialization of Korean Politics.” In New Courts in Asia , edited by Andrew Harding and Penelope Nicholson, pp. 145–157. London: Routledge, 2010. ———. “Law a nd the Libera l Tra n sfor m at ion of the Nor thea st A sia n L eg a l Complex in Korea and Taiwan.” In Fighting for Political Freedom: Comparative Studies of the Legal Bibliography 237

Complex and Political Liberalism , edited by Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley, pp. 23–43. Oxford: Hart Publishing, 2007. Goedde, Patricia. “Lawyers for a Democratic Society (Minbyun): The Evolution of its Legal Mobilization Process since 1988.” In South Korean Social Movements: From Democracy to Civil Society , edited by Gi-Wook Shin and Paul Y. Chang, pp. 224– 244. New York: Routledge, 2011. Hahm, Chaihark. “Human Rights in Korea.” In Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France, and the USA , edited by Randall Peerenboom, Carole J. Petersen, and Albert H. Y. Chen, pp. 265–296. London: Routledge, 2006. Henderson, Gregory. “Constitutional Changes from the First to the Sixth Republics: 1948–1987.” In Political Change in South Korea , edited by Ilpyong Kim and Young Whan Kihl, pp. 22–43. New York: Paragon House, 1988. ———. “Hu m a n R ig ht s i n South Korea: 1945 –1953.” In Human Rights in Korea: Historical and Policy Perspectives , edited by William Shaw, pp. 125–169. Cambridge, MA: Harvard University Press, 1991. Holland, Peter. “Towards Constitutionalism: The First Term of the Constitutional Court of Korea.” In Asian Laws through Australian Eyes , edited by Veronica Taylor, pp. 163–182. Sidney: LBC Information Services, 1997. Kihl, Young Whan. “South Korea’s Search for a New Order: An Overview.” In Political Change in South Korea , edited by Ilpyong Kim and Young Whan Kihl, pp. 3–21. New York: Paragon House, 1988. Kim, Dong-Choon. “The War Against the ‘Enemy Within’: Hidden Massacres in the Early Stages of the Korean War.” In Rethinking Historical Injustice and Reconciliation in Northeast Asia: The Korean Experience , edited by Gi-Wook Shin, Soon-Won Park, and Daqing Yang, pp. 75–93. New York: Routledge, 2007. Kim, Hun Joon. “Transitional Justice in South Korea.” In Transitional Justice in the Asia- Pacific , edited by Ren é e Jeffery and Hun Joon Kim, pp. 75–93. New York: Cambridge University Press, 2014. Kim, Jae Won. “Legal Profession and Legal Culture during Korea’s Transition to Democracy and a Market Economy.” In Raising the Bar: The Emerging Legal Profession in Asia , edited by William P. Alford, pp. 47–80. Cambridge, MA: Harvard University Press, 2007. Kim, Jongcheol, and Jonghyun Park. “Causes and Conditions for Sustainable Judicialization of Politics in Korea.” In The Judicialization of Politics in Asia , edited by Bjö rn Dressel, pp. 37–55. New York: Routledge, 2012. Kim, Seong-Hyun. “The Democratization and Internationalization of the Korean Legal Field.” In Lawyers and the Rule of Law in an Era of Globalization , edited by Yves Dezalay and Bryant G. Garth, pp. 217–238. New York: Routledge, 2011. Kim, Sookyung, and Paul Y. Chang. “The Entry of Past Activists into the National Assembly and South Korea’s Participation in the Iraq War.” In South Korean Social Movements: From Democracy to Civil Society , edited by Gi-Wook Shin and Paul Y. Chang, pp. 117–134. New York: Routledge, 2011. 238 Bibliography

Koo, Hagen. “Engendering Civil Society: The Role of the Labor Movement.” In Korean Society: Civil Society, Democracy, and the State , edited by Charles K. Armstrong, pp. 73–94. London: Routledge, 2007. Kwon, Jong Bum. “Exorcizing the Ghosts of Kwangju: Policing Protest in the Post- Authoritarian Era.” In South Korean Social Movements: From Democracy to Civil Society , edited by Gi-Wook Shin and Paul Y. Chang, pp. 58–74. New York: Routledge, 2011. Lee, Chul-Woo. “Modernity, Legality, and Power in Korea Under Japanese Rule.” In Colonial Modernity in Korea , edited by Gi-Wook Shin and Michael Robinson, pp. 21–51. Cambridge, MA: Harvard University Asia Center, 1999. ———. “ ‘Us’ a nd ‘Them’ i n Korea n Law: The Creat ion, Accom mod at ion, a nd Exclusion of Outsiders in South Korea.” In East Asian Law: Universal Norms and Local Cultures , edited by Arthur Rosett, Lucie Cheng, and Margaret Y. K. Woo, pp. 106–136. London: RoutledgeCurzon, 2003. Lee, Namhee. “Anticommunism, North Korea, and Human Rights in South Korea: ‘Orientalist’ Discourse and Construction of South Korean Identity.” In Truth Claims: Representation and Human Rights , edited by Mark Philip Bradley and Patrice Petro, pp. 43–71. New Brunswick: Rutgers University Press, 2002. ———. “From M i nju ng to Si m i n: The Discu r sive Sh i f t i n Korea n Socia l Movement s.” In South Korean Social Movements: From Democracy to Civil Society , edited by Gi-Wook Shin and Paul Y. Chang, pp. 41–57. New York: Routledge, 2011. ———. “The South Korea n St udent Movement: Undong k wŏ n as a Counterpublic Sphere.” In Korean Society: Civil Society, Democracy, and the State , edited by Charles K. Armstrong, pp. 132–164. London: Routledge, 2007. Lewis, Linda S. “Commemorating Kwangju: The 5.18 Movement and Civil Society at the Millennium.” In Korean Society: Civil Society, Democracy, and the State , edited by Charles K. Armstrong, pp. 165–186. London: Routledge, 2007. Lim, Jibong. “Korean Constitutional Court and the Due Process Clause.” In Litigation in Korea , edited by Kuk Cho, pp. 160–174. Cheltenham: Edward Elgar, 2010. ———. “The Korea n Con st it ut iona l Cou r t, Jud icia l Act iv ism, a nd Socia l Cha nge.” In Legal Reform in Korea , edited by Tom Ginsburg, pp. 19–35. London: Routledge Curzon, 2004. Park, Hyun Ok. “The Politics of Unification and Neoliberal Democracy: Economic Cooperation and North Korean Human Rights.” In North Korea: Toward a Better Understanding , edited by Sonia Ryang, pp. 109–128. Lanham: Lexington Books, 2009. Song, Sang-Hyun. “The Education and Training of the Legal Profession in Korea: Problems and Prospects for Reform.” In Raising the Bar: The Emerging Legal Profession in Asia , edited by William P. Alford, pp. 27–46. Cambridge, MA: Harvard University Press, 2007. Yoon, Dae-Kyu. “Korea.” In Asian Legal Systems: Law, Society, and Pluralism in East Asia , edited by Poh-Ling Tan, pp. 162–167. Sydney: Butterworths, 1997. ———. “The Pa ra lysis of L eg a l Educat ion.” In Legal Reform in Korea , edited by Tom Ginsburg, pp. 36–46. London: RoutledgeCurzon, 2004. Bibliography 239

Articles Ahn, Kyong Whan. “The Influence of American Constitutionalism on South Korea.” Southern Illinois University Law Journal 22, no. 1 (1997): 71–116. Alem án, Jos é. “Protest and Democratic Consolidation: A Korean Perspective.” International Journal of Korean Studies 9, no. 1 (2005): 71–90. Armstrong, Charles K. “America’s Korea, Korea’s Vietnam.” Critical Asian Studies 33, no. 4 (2001): 527–540. ———. “Contest i ng the Pen i n su la.” New Left Review 51 (2008): 115–135. Baker, Don. “The Religious Revolution in Modern Korean History: From Ethics to Theology and from Ritual Hegemony to Religious Freedom.” Review of Korean Studies 9, no. 3 (2006): 249–275. Brush, Kaitlin. “The Right to Conscientious Objection and How South Korea Falls Short.” Human Rights Brief 18, no. 3 (2011): 54–55. Chang, Paul Y. “Unintended Consequences of Repression: Alliance Formation in South Korea’s Democracy Movement, 1970–1979.” Social Forces 87, no. 2 (2008): 651–677. Cho, Jung-Kwan. “The Politics of Constitution-Making during the 1987 Democratic Transition in South Korea.” Korea Observer 35, no. 2 (2004): 171–206. Cho, Kuk. “Conscientious Objection to Military Service in Korea: The Rocky Path from Being an Unpatriotic Crime to a Human Right.” Oregon Review of International Law 9, no. 1 (2007): 187–224. ———. “The Ongoi ng Recon st r uct ion of the Korea n Cr i m i na l Just ice System.” Santa Clara Journal of International Law 5, no. 1 (2006): 100–121. ———. “Ten sion s Bet ween the Nat iona l Secu r it y Law a nd Con st it ut iona l ism i n South Korea.” Boston University International Law Journal 15, no. 1 (1997): 125–174. ———. “Tra n sit iona l Just ice i n Korea: L eg a l ly Copi ng w ith Pa st Wrong s a f ter Democratization.” Pacific Rim Law and Policy Journal 16, no. 3 (2007): 579–611. Choi, Jang-Jip. “Democratization, Civil Society, and the Civil Social Movement in Korea.” Korea Journal 40, no. 3 (2000): 26–57. ———. “The Frag i l it y of Libera l ism a nd it s Pol it ica l Con sequences i n Democrat i zed Korea.” Asea Y ŏ ngu 52, no. 3 (2009): 252–272. Chubb, Danielle. “Le combat des activistes nord-coré ens en Coré e du Sud.” Critique internationale 49 (2010): 37–51. Delissen, Alain. “Carrefour historique, carrefours historiographiques: Les nouveaux pass és de la Cor é e du Sud.” Mat é riaux pour l’histoire de notre temps 4, no. 88 (2007): 20–25. Em, Henry. “ ‘Overcoming’ Korea’s Division: Narrative Strategies in Recent South Korean Historiography.” positions: east asia cultures critique 1, no. 2 (1993): 450–485. Gé l é zeau, Val é rie. “Espoirs et dé sillusions de la dé cennie du ‘rayon de soleil.’” Critique internationale 49 (2010): 9–20. Ginsburg, Tom. “Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan.” Law and Social Inquiry 27, no. 4 (2002): 763–799. 240 Bibliography

Goedde, Patricia. “From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea.” East Asia Law Review 4, no. 1 (2009): 63–89. Hahm, Chaihark. “Beyond ‘Law vs. Politics’ in Constitutional Adjudication: Lessons from South Korea.” International Journal of Constitutional Law 10, no. 1 (2012): 6–34. ———. “R it ua l a nd Con st it ut iona l ism: Disput i ng the Ru ler’s L eg it i m ac y i n a Confucian Polity.” American Society of Comparative Law 57, no. 1 (2009): 135–203. Healy, Gavin. “Judicial Activism in the New Constitutional Court of Korea.” Columbia Journal of Asian Law 14, no. 1 (2000): 213–234. Heller, Brittan. “Terms of Endangerment: Evolving Political and Legal Terminology for North Koreans.” Oxford Monitor of Forced Migration 1, no. 1 (2011): 14–19. Im, Hyug Baeg. “Faltering Democratic Consolidation in South Korea: Democracy at the End of the ‘Three Kims’ Era.” Democratization 11, no. 5 (2004): 179–198. Ivkovi ć , Sanja Kutnjak, and Wook Kang. “Police Integrity in South Korea.” Policing: An International Journal of Police Strategies and Managemen t 35, no. 1 (2012): 76–103. Jager, Sheila Miyoshi. “Women, Resistance, and the Divided Nation: The Romantic Rhetoric of Korean Unification.” Journal of Asian Studies 55, no. 1 (1996): 3–21. Jeong, Seongjin. “Marx in South Korea.” Socialism and Democracy 24, no. 3 (2010): 198–204. Kim, Hyuk-Rae. “Dilemmas in the Making of Civil Society in Korean Political Reform.” Journal of Contemporary Asia 34, no. 1 (2004): 55–69. ———. “The St ate a nd Civ i l Societ y i n Tra n sit ion: The Role of Non- Gover n ment a l Organizations in South Korea.” Pacific Review 13, no. 4 (2000): 595–613. Kim, Jae Won. “The Ideal and the Reality of the Korean Legal Profession.” Asian- Pacific Law and Policy Journal 2, no. 1 (2001): 45–68. Kim, Marie Seong-Hak. “Constitutional Jurisprudence and the Rule of Law: Revisiting the Courts in Yusin Korea (1972–1980).” Hague Journal on the Rule of Law 5, no. 2 (2013): 178–203. ———. “Law a nd Custom Under the Chos ŏ n Dynasty and Colonial Korea: A Comparative Perspective.” Journal of Asian Studies 66, no. 4 (2007): 1067–1097. Kim, Sunhyuk. “State and Civil Society in South Korea’s Democratic Consolidation: Is the Battle Really Over?” Asian Survey 37, no. 12 (1997): 1135–1144. Koo, Hagen. “The Dilemmas of Empowered Labor in Korea: Korean Workers in the Face of Global Capitalism.” Asian Survey 40, no. 2 (2000): 227–250. Kraft, Diane. “South Korea’s National Security Law: A Tool of Oppression in an Insecure World.” Wisconsin International Law Journal 24, no. 2 (2006): 627–660. Lee, Jung-Eun. “Categorical Threat and Protest Policing: Patterns of Repression before and after Democratic Transition in South Korea.” Journal of Contemporary Asia 43, no. 3 (2013): 475–496. Lee, Kang-Kook, Hye-Jin Kim, and Yoo-Min Won. “La cour constitutionnelle de la Ré publique de Coré e.” Les nouveaux cahiers du Conseil Constitutionnel 37 (2012): 205–226. Bibliography 241

Lee, Suk Tae. “South Korea: Implementation and Application of Human Rights Covenants.” Michigan Journal of International Law 14, no. 4 (1993): 705–738. Lewis, Linda S. “Female Employment and Elite Occupations in Korea: The Case of ‘Her Honor’ the Judge.” Korean Studies 21, no. 1 (1997): 54–71. Lim, Jibong. “A Comparative Study of the Constitutional Adjudication Systems of the U.S., Germany, and Korea.” Tulsa Journal of Comparative and International Law 6, no. 2 (1999): 123–162. ———. “Korea n Con st it ut iona l Cou r t St a nd i ng at the Crossroad s: Focusi ng on Rea l Cases and Variational Types of Decisions.” Loyola of Los Angeles International and Comparative Law Review 24, no. 3 (2002): 327–360. Moon, Byongook. “The Politicization of Police in South Korea: A Critical Review.” Policing: An International Journal of Police Strategies and Management 27, no. 1 (2004): 128–136. Moon, Seungsook. “Imagining a Nation Through Differences: The Controversy Concerning the Military Service Extra Points System in South Korea.” Review of Korean Studies 5, no. 2 (2002): 73–109. Moran, Jonathan. “The Role of the Securit y Ser vices in Democratization: An Analysis of South Korea’s Agency for National Security Planning.” Intelligence and National Security 13, no. 4 (1998): 1–32. Nam, Taehyun. “The Broken Promises of Democracy: Protest-Repression Dynamics in Korea, 1990–1991.” Mobilization: An International Journal 11, no. 4 (2006): 427–442. Park, Hyun-Sun. “South Korea’s Policy Response to Sudden Increases in North Korean Refugees.” Korea Observer 34, no. 4 (2003): 731–755. Park, Jonghyun. “The Judicialization of Politics in Korea.” Asian-Pacific Law and Policy Journal 10, no. 1 (2008): 62–111. Park, Jung-Sun, and Paul Y. Chang. “Contention in the Construction of a Global Korean Community: The Case of the Overseas Korean Act.” Journal of Korean Studies 10, no. 1 (2005): 1–27. Park, Stephen Kim. “Dictators in the Docks: Retroactive Justice in Consolidating Democracies, a Comparative Analysis of Chile and South Korea.” Fletcher Forum of World Affairs 25, no. 1 (2001): 127–142. Pyo, Changwon. “The Public Perception of The Police and Various Police Reform Initiatives in Korea: 1999–2001.” Asian Policing: Journal of the Asian Association of Police Studies 1, no. 1 (2003): 127–143. Shin, Gi-Wook. “Marxism, Anti-Americanism, and Democracy in South Korea: An Examination of Nationalist Intellectual Discourse.” positions: east asia cultures critique 3, no. 2 (1995): 508–533. ———. “South Korea n A nt i-A mer ica n ism: A Compa rat ive Per spect ive.” Asian Survey 38, no. 8 (1996): 787–803. West, James M. “Martial Lawlessness: The Legal Aftermath of Kwangju.” Pacific Rim Law and Policy Journal 6, no. 1 (1997): 85–168. 242 Bibliography

West, James M., and Edward J. Baker. “The 1987 Constitutional Reforms in South Korea: Electoral Processes and Judicial Independence.” Harvard Human Rights Yearbook 1 (1988): 135–178. West, James M., and Dae-Kyu Yoon. “The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex?” American Journal of Comparative Law 40, no. 1 (1992): 73–119. Wilson, Matthew. “U.S. Legal Education Methods and Ideals: Application to the Japanese and Korean System.” Kyung Hee Law Journal 44, no. 3 (2009): 457–525. Yang, Kun. “Judicial Review and Social Change in the Korean Democratization Process.” American Journal of Comparative Law 41, no. 1 (1993): 1–8. ———. “Law a nd Societ y St ud ies i n Korea: Beyond the Ha h m Theses.” Law and Society Review 23, no. 5 (1989): 891–902. ———. “The Sociolog y of Law i n Korea.” American Sociologist 32, no. 2 (2001): 78–84. Yeo, Andrew. “Local-National Dynamics and Framing in South Korean Anti-Base Movements.” Philippine Journal of Third World Studies 21, no. 2 (2006): 34–60. Yoon, Dae-Kyu. “The Constitution of North Korea: Its Changes and Implications.” Fordham International Law Journal 27, no. 4 (2003): 1289–1305. ———. “The Constitutional Court of the Republic of Korea: Its Role and Activities.” Philippine Law Journal 71, no. 1 (1995): 121–139. INDEX

Abelmann, Nancy, 53 Choi, Jang-Jip, 3, 9, 54, 69, 163, 180, amendment, 4, 6, 7, 24, 25, 27, 34, 35, 193 77, 82, 91, 179, 184 Choo, Sun-Hoe, 20, 114, 138, 207 anti-Americanism, 26, 52, 73, 85, 99, Chun, Doo-Hwan, xv, 5, 17, 23, 26, 154 27, 30, 35, 49, 55, 56, 59–65, 70, anticommunism, 49, 72, 108–11, 165, 109, 156, 202 193, 213 civil society, xvii, 1, 14–15, 23–4, 27, antistate 52–4, 57–8, 59–60, 65, 72, 93, activities, 50–2, 55, 58, 75–6, 77, 83, 124, 170 85, 121, 128, 131, 134, 137 see also minjung v. simin; state v. organization(s), 48–9, 50–2, 58, 70, society 72–3, 75, 77, 90, 91, 92, 95–6 colonial rule, xv, 24, 25–6, 30, 71, appointment, 13, 19, 20–1, 35, 37, 43, 97, 103–6, 110–11, 117, 122–3, 84, 133, 196 156–7, 200, 204 April 19, 1960 Student Revolution, 5, communism, 13, 30, 42, 59, 65, 71, 75, 24, 26, 182, 201 77, 90, 105, 108–9, 110, 113, 114, armed forces, 33, 45, 71, 84, 143–4, 116, 201–2 146–9, 155, 156, 165, 208, 211 competence dispute(s), 18, 37, 40–1, 45 attitudinal v. strategic model, 19, 181 confession(s), 84, 109, 120, 124, 129, 138, 168, 205 balancing, 61, 65, 84, 127, 138, 161, 206 conscience. See freedom of body, 120, 139–40, 207 conscription. See military service politic, xviii, 3, 15, 24, 28–9, 95–6, conservative, 9, 28, 45, 53–4, 55, 60, 98, 107, 110, 116–17, 167, 170 71, 87, 92, 93, 105, 110, 117, 121, borrowing, 4, 36, 42–3, 138, 179, 194 133, 134, 138, 161, 170, 180, 197 Byun, Jeong-Soo, 20, 43, 76, 77, 125 constitution of the Republic of Korea 1987 revision of, 23–4, 27–8, 33–5, chaebŏl, 9, 26, 54, 93, 163 182 China, 98, 100–5, 183, 200, 210 history of, 4–5, 24, 29, 32, 42, 70–1, Cho, Kyu-Kwang, 19, 20, 125 97, 178–9, 182 Cho, Sang-Rok, 108–9, 111 preamble of, 24–6, 27, 29–30, 33, Cho, Seung-Hyung, 20, 43, 62–4 144, 182 244 Index constitutional committee, 4, 5, 35, 84 movement, 5, 8–9, 23–4, 26–7, 42, constitutional complaint(s), 16–17, 18, 49, 57–8, 62–7, 154 34, 36, 37, 39–40, 44, 61–2, 86, transition to (see transition(s) to 100, 103, 107–8, 124–7, 130, democracy) 132, 139, 147–8, 150–1, 153, Democratic People’s Republic of Korea. 154, 163, 202 See North Korea constitutional court(s). See disagreement, 1, 7, 16, 22, 43, 86, 87, Constitutional Court of Korea; 110, 137, 153, 159, 168, 169, France; Germany; Hungary 170, 181 Constitutional Court of Korea discrimination(s), xviii, 54, 72, 97, case statistics of, 16–18, 107 100, 102–6, 112, 114–17, 155, composition of, 9, 20–1, 36–7 162–6, 211 creation of, xvii, 8, 9, 13, 23, 34–8, 44–6, 168–9 Eight-Member Political Talks, 9, 27, 32, functioning of, 9, 37–43, 132 33–5, 37, 182 paradox of, xvii–xviii, 2–3, 14–16, elites, xvii, 4, 7–8, 9, 11, 13, 19, 23–4, 76, 119, 141, 168–70 27, 47, 54, 77, 155, 163, 168, 170, see also jurisprudence 182 constitution-making, 6–13, 34, 168, Em, Henry, 26 178–9 emergency, 31–3, 67–8, 183–4, 202, 209 Costa Rica, 143, 145, 150–3, 208 enforcement coup d’état, 5, 26, 35, 61–7, 70 law, 52, 54–5, 74, 77, 119, 120–3, court(s) 128–9, 132, 133, 136, 138–41, constitutional v. supreme, 4, 34, 38–9, 169 84–7, 132, 134, 177 (see also of rulings, 77, 82–6, 132, 134–6, 149, constitutional court(s); supreme 153 court(s)) enmity, xvi–xvii, 1, 3, 15–17, 19, 22, European Court of Human Rights, 47–8, 55, 59, 67, 69, 70, 76, 116, 138, 140 81, 90, 95–6, 107–10, 114, ordinary, 4, 38–40, 44, 64–5, 73–4, 115–17, 128–9, 137, 147, 167, 77, 83–6, 123, 126, 133, 135, 170, 202 159 politics of, 2, 48, 92, 95, 117, 119, criminal justice, xviii, 17, 47, 81, 84, 141 119–41, 167 espionage, 52, 100, 103, 109, 116, 130 retroactive, 5, 13, 56, 63–7 ethnicity, 25, 96–8, 100, 102, 103, 104, rights revolution, 8, 14, 124, 133, 135 105, 116–17, 182 custody, 78, 80, 100, 109, 111, 115, 123, exclusion, xvii, 9, 14, 17, 23–4, 27, 125, 127, 130, 136, 138 28, 42, 47, 54, 92, 93, 105, 107, 157 death penalty, 64, 80, 123, 195 v. inclusion, xvii, xviii, 2, 3, 7, 15, 16, democracy 22, 55, 95, 97, 116–17, 167–71 basic order of free, 7, 25, 41, 67–9, 75–7, 82, 91, 113, 155, 167, 170 France, 12–13, 31–2, 38, 122, 157, 178, militant, 41–2, 113–14, 186 180, 204, 205 Index 245 freedom(s) Jehovah’s Witnesses, 145, 156–7, 159, of conscience, 107–9, 112–14, 144–5, 163, 170, 212, 213 155–63, 212, 213 Jeon, Hyo-Sook, 19, 20, 160, 161 of expression, 41, 52, 57, 74–5, 77, judicial 84–6, 90, 91, 115, 194 and constitutional politics, 2, 6–13, see also rights 169, 180 independence, 2, 4, 38, 45, 46, 75–6, gender. See discrimination(s) 83–4, 88, 122, 131, 133, 196 Germany, 31–2, 36, 39, 42, 43, 44, review, 3–4, 38, 40, 44, 47, 56, 145–7, 48, 65–7, 68, 76, 115–16, 138, 169, 177 144, 157–8, 185, 186, 192, 202, history in South Korea, 4–5, 34–5, 203–4, 206 45–6, 84 modes of, 4, 34, 38, 39 Hahm, Pyong-Choon, 178 techniques of, 42–3, 81, 74, 125, Hungary, 6, 13, 65–6, 179 137–40, 146–7, 150 theories of (see attitudinal v. ideological conversion, xv, xvi, xviii, strategic model; insurance 17, 107–14, 116–17, 119, 141, 167, theory; precommitment; 168, 201–2 realism) impeachment, 18, 19, 37, 41, 87–9, 186, jurisprudence 209–10 ambivalence in, xvii–xviii, 2, 14, independence 16, 47, 59, 64–5, 68, 69, 75, 78, judicial (see judicial) 80–2, 92, 116–17, 127, 134, 136, movement(s), 25–6, 71, 104–5, 139, 140, 167, 169, 170 110–11, 200, 201 interpretive analysis of, xvii, 15, 19, insurance theory, 8, 11, 13 22, 78, 143 intellectual(s), 26, 52, 53, 54, 59, 74, selected corpus of, 16–17, 19 170, 193 justiciability, 17, 39–40, 91, 125–6, 130, intelligence agencies, 58, 72–3, 93, 100, 143, 145–6, 147, 151, 154 109, 119, 121, 125–7, 131, 134, 189, 195, 203 Kim, Chin-Woo, 20, 63, 64 Internet, 55, 124, 163, 189, 203 Kim, Dae-Jung, 5, 30, 34, 36, 43, 48, investigation, 55, 78, 100, 119, 121, 122, 49, 50, 51, 54, 60, 64, 76, 92, 96, 124, 125, 128, 129, 131, 135, 152, 188–9, 197, 203 137–8, 140, 195 Kim, Jong-Pil, 50, 188, 203 see also intelligence agencies; police; Kim, Yong-Joon, 19, 20, 64 prosecution Kim, Young-Sam, 5, 34, 35, 36, 38, 45, Israel, 7–8, 43, 81, 98–9, 138, 140, 49, 50, 51, 60, 62–5 145–7, 157–8, 169, 194, 207–8 Koh, Joong-Suk, 20, 62, 64 Korea Jakobs, Günther, 115, 202 provisional government of Japan (1919–1945), 24, 25–6, 103, supreme court of, 208, 210 105, 200 see also colonial rule; Korean-Japanese see also North Korea; South Korea 246 Index

Korean Lee, Jae-Hwa, 20, 63, 64 Americans, 102–3 Lee, Myung-Bak, 55, 213–14 border, xv, xviii, 3, 30, 58, 95, 97, 99, Lee, Namhee, 26, 197, 202, 213 116, 198 left, 26, 52, 59, 68, 71–2, 92–3, 104–6, Chinese, 98, 102–5, 117 110–11, 180 division of, xv–xvi, 3, 26, 28–30, legal education, 122–3, 158, 204 43, 58, 71, 72–3, 76, 96, 97, 99, Liberation of August 15, 1945, xv, 71, 105–6, 110, 116, 117, 145, 153, 105, 111, 193 160, 161, 166, 170, 198 Lim, Soo-Kyung, 57–9 Japanese, 98, 102, 105–7, 109, 117, Loewenstein, Karl, 41–2 130 loyalty, 110, 115–16, 201 relations, xv, 29–31, 71, 90, 91, 96, 103, 145, 152, 161, 210 March 1, 1919 Independence war, xv–xvi, 30, 72, 99, 144, 198, 208 Movement, 24–6, 110, 201 Kwangju uprising, 26, 27, 35, 55, 60–5, martial law, 26, 31, 32, 35, 60 182 middle class, 27, 28, 53 military service, 17, 72, 104, 143–5, labor, 9, 27–8, 52, 54, 57, 59, 71–3, 92, 148, 155–66, 168, 170, 193, 211, 103–5, 166, 188–9, 193 213–14 law(s) Minbyun. See lawyer(s) Anti-Communist Act, 49, 50, 72 minjok, 97, 182 Assembly and Demonstration Act, minjung, 26–8, 48, 53–5, 57–8, 99, 154, 107, 112 163, 169–70, 202, 213 civil v. common, 43, 122, 203–4 v. simin, 53–4, 170 Constitutional Court Act, 9, 16, 37–9, minority 43, 86 groups, 103, 106, 116, 145, 161–3, Criminal Procedure Code, 67, 78, 170–1 120, 123, 135, 185 rulings, 19, 43, 62–4, 76, 85, 89, 108, Military Service Act, 156, 158, 160, 110, 112, 114, 125, 138, 148, 151, 168 154, 159–61, 164–5 National Security Act (see National Moon, Ik-Hwan, 57–9 Security Act) Moon, Seungsook, 165–6, 193 Nationality Act, 97–8 Overseas Koreans Act, 102–4, 200 national rule of, xviii, 1, 2, 14, 63–6, 74–7, v. antinational, xvi, xvii, xviii, 115, 120, 133, 141, 167, 168 1–3, 15, 19, 22, 26, 117, 143, Special Act on the May 18th 167 Democratization Movement, community, xviii, 17, 95–107, 116–17, 62–5, 67 145, 155 lawyer(s), xvii, 13, 14, 22, 47, 55–6, 74, imaginary, xvii, xviii, 3, 22, 23, 83, 109, 123, 124–35, 148, 150, 25–6, 28, 53–5, 96–100, 153, 169, 195, 196 105, 110, 116–17, 143, for a Democratic Society (Minbyun), 147–8, 153–4, 155, 163, 55, 56–7, 59, 61–2, 68, 93, 126, 165–6, 167, 170, 180, 182, 129, 190 202, 213 Index 247

National Assembly, 9, 20, 27, 31–3, 34, 37, political question doctrine, 146, 148, 41, 45, 60, 62, 67, 68, 77, 87–8, 150, 153 90, 93, 121, 133, 144, 149, 159–60 precommitment, 10, 11, 180 National Human Rights Commission, presidency, 4, 5, 20, 27, 31–3, 35–6, 49, 51, 52, 89, 136, 197 37, 41, 45, 49, 60, 73, 88, 144, National Security Act, xv, xviii, 14, 148–9, 151, 184 17, 28, 47, 48–55, 57–9, 69–72, presidents since 1948 (see under 77, 84, 95–6, 107–9, 112–13, individual names) 114, 119, 121, 125–7, 131, 135, prison(s), 58, 111–12, 114, 119, 124, 130–1, 137, 140, 141, 167, 187, 189, 196 135, 136, 139, 201, 202, 207 article 7 of, 43, 51, 52, 72, 73–7, 78, prisoner(s), 48, 54–5, 59, 72, 74, 107–9, 80–3, 85–7, 90–1, 121, 125, 130, 111–13, 115, 124, 139, 156, 201 167, 168 progressive, 8, 72, 92, 105, 117, 137, constitutional review of, 69–70, 138, 140, 161, 197 73–83, 87, 89–92 proportionality, 43, 89, 138–40, 206, debate about abolition of, 50, 55, 207–8 69–70, 87, 89–93, 170, 197 prosecution, 5, 17, 19, 40, 41, 49–52, 55, North Korea, xvi, 4, 22, 26, 28–31, 43, 57, 59, 60–5, 67, 78, 83, 84–5, 49, 50, 52, 57–8, 68, 70–1, 73–4, 90, 111, 115, 119, 122–4, 129–30, 95–6, 98–100, 105, 106, 110, 117, 131, 134, 136, 138, 139–40, 158, 130, 152, 154, 168, 179, 187, 201 207 in South Korean jurisprudence, 76, 85–6, 90–2, 96, 97–8, 106, 114, radical, 52–4, 72, 92, 110, 115 117, 143, 153, 160–1, 198 Rancière, Jacques, 16, 168, 181 North Korean(s), 96, 97–102, 103, realism, 6–13 105–7, 109, 117, 199 repression, xv–xvi, xvii, 3, 14, 27, 47, 48, 49–55, 56, 57–9, 62, 69–73, Park, Chung-Hee, 5, 32, 50, 55, 56, 67, 84, 92, 107, 110–11, 121, 123, 70, 72–3, 84, 109, 111, 131, 156, 137, 167, 169, 170, 188–9, 196 203 Republic of Korea. See South Korea Park, Geun-Hye, 5, 55, 189–90, 203 reunification, 24, 26, 29, 30, 57–9, peace, 17, 25, 30, 58, 91, 115, 143–7, 65–6, 73, 77, 90, 96, 99–100, 150–5, 161 117, 143, 144, 183, 199 pledge to abide by the law. See Rhee, Syngman, 5, 26, 70, 72 ideological conversion right(s) police, 53–4, 57, 58, 78, 100, 115, basic, xvii, 1–2, 8, 10, 14, 16, 36–7, 119–22, 124–6, 130, 132–3, 39–40, 44–5, 57, 63, 67–9, 75–6, 135–6, 138–9, 156 77, 91, 100, 102, 114, 117, 123, political parties, 4, 8, 23, 24, 27, 33–8, 125, 128, 129, 136, 139, 144, 145, 43, 45, 49–50, 54, 59, 60, 75, 76, 147, 151, 155, 161, 166, 168, 170–1 77, 84, 87, 93, 116, 121, 133, 182, conditionality of, 41–2, 76, 119, 129, 191, 192, 196, 197 136–40, 151–2, 154, 159, 160 dissolution of, 18, 19, 37, 41, 68, 76, to counsel, 120, 125–8, 132, 134–8, 170, 186, 192 205 see also elites criminal (see criminal justice) 248 Index right(s)—Continued Sunshine Policy, 152, 210 to equality, 62, 103, 107–8, 112–13, supermajority, 42, 44, 64 137, 155, 161–2, 164 supreme court(s). See Costa Rica; Israel; to happiness, 25, 30, 103, 107–8, 144 Japan; Supreme Court of Korea; to live peacefully, 144, 154–5 United States to trial, 120, 130–2, 135 Supreme Court of Korea, 4, 5, 20, 34, to vote, 102, 106, 117 35, 37, 64, 83–7, 89–91, 97–8, see also freedom(s) 121, 123, 132–7, 159–60 Roh, Moo-Hyun, 5, 19, 41, 55, 87–93, 114, 136, 149, 152, 197 Taiwan, 6, 8, 157, 158, 183 Roh, Tae-Woo, 5, 17, 23, 24, 26, 27, torture, 27, 57, 84, 100, 109, 111–12, 33, 36, 45, 48, 49, 55, 56, 57, 58, 120, 124, 133, 134, 135, 156, 59–65, 133 204, 205 transition(s) to democracy, xv, 1, 3, 6, security, 2, 17, 19, 25, 30–1, 43, 76, 84, 47–8, 53, 55–6, 120, 178 103, 106, 127–9, 146–7, 152, process in South Korea, xvii, 4, 6, 160, 194 8–9, 23–4, 27, 45 Shin, Gi-Wook, 49, 96, 182 transitional justice, xvii, 9, 17–18, 47, socialism, 12, 57, 59, 68, 71, 76, 105, 55, 59–67, 132 110, 192, 193 Song, Du-Yul, 140, 207 uncertainty, xvii, 9–13, 23, 36, 39, Song, In-Jun, 20, 138, 207 44–6, 124, 168–9 South Korea United Nations, 29, 136, 151, 152, 157, economy of, 9, 30, 54, 72–3, 75–6, 159, 211 92, 103, 163, 165–6, 183, 193 United States, 4, 14, 30, 31, 33, 43, 99, general history of, 3, 4–5, 24–6, 102, 111, 116, 122, 145, 146, 28–9, 45, 71–2, 110, 165–6, 151–3, 157, 198, 210 173–6 military alliance with and presence in relations with North Korea (see South Korea, 24, 33, 71, 73, 144, Korean relations) 152–4, 211 see under individual themes Supreme Court, 19, 38, 40, 44, 75, 81, sovereignty, 24, 29, 63, 70, 75–6, 95, 116, 124, 128, 135, 138, 150, 157, 96, 97, 154, 158 186, 194, 195, 205, 206–7, 208 speech, 15–16, 52–4, 73, 82, 167–8, 170 see also freedom of expression war, xv, 17, 71, 81, 99, 116, 143–7, state 153–5, 165, 208 power, 14, 36, 39–40, 44, 56, 61, 81, Iraq, 144, 145, 146, 148–53, 208 91, 119, 120, 124, 126–7, 129, Korean (see Korean war) 136, 139, 141, 154 powers, xviii, 33, 144, 145, 148–9 v. society, xvi, 1, 3, 22, 47, 55, 59, 167 worker(s). See labor student(s), 8–9, 26–8, 52–4, 57–9, 71, 74, 90, 170, 213 Yi, Hong-Nok, 74, 194 Suh, Jun-Sik, 107, 130–1 Yu, Chin-O, 178–9 Suh, Sung, 107, 200, 202 Yusin, 5, 67–8, 84, 111, 131