Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

authoritarian regimes, also characterized the pre- 1987 era of Korea. Although some


initiatives achieved their intended goals, the Kim Young-sam administration


( 1993 – 8 ) and the Kim Dae-jung administration ( 1998 – 2003 ) did too little to abate


the personalization of public powers sufficiently to distance themselves from the


dark legacy of their authoritarian predecessors.


The Roh Moo-hyun administration ( 2003 – 8 ) made an effort to depart from the


authoritarian legacy of the personalization of public powers. Even his political


opponents accepted that President Roh was eager to forgo political misuse of law-


enforcement powers such as the prosecutorial office, the police, the national


intelligence service and the tax office. However, as soon as President Roh’s term


ended, the useful arms of presidential powers became increasingly politicized.


For example, public confidence in the prosecutor’s office declined as soon as the


inauguration of President Lee Myong-bak because the office has become highly


politicized in its abuse of monopolized power of indictment and investigation.


The fact that former President Roh was forced to face an arbitrary investigation for


bribery shortly after his retirement, and his eventual suicide, should be enough


to verify the revival of a dark legacy.


In addition to this political retaliation through criminal proceedings, in a


number of other cases politically motivated indictments turned out to have no


legal grounds in the courts. The president of the Korean Broadcasting System


(KBS) refused to resign and challenged the new president Lee Myong-bak’s request


to resign with no legal ground. He was indicted for breach of trust, but no


wrongdoing in his performance was found in the criminal proceedings.^57 The


producers of a popular focus report, calledPD’s Notebook, of the Moonwha


Broadcasting Company (MBC), whose program about mad cow disease had been


blamed for inciting the public to mount anti-Lee Myong-bak candlelit demonstra-


tions lasting more than three months by distorting facts and opinions, were indicted


for defamation but found not guilty.^58 Another indictment, of an amateur eco-


nomic commentator who, using the pseudonym “Minerva,” rose to popularity by


disseminating false information, was also rejected because the law used to indict


him was declared unconstitutional.^59 On the other hand, the prosecutor’s office


either did not investigate, or intentionally delayed investigation of, important


abuses or misuses of governmental powers. For example, although the office


revealed that public officials of the Prime Minister’s Office were involved in the


(^57) Supreme Court Decision 2010 Do 15129 , January 12 , 2012. See also Kim Tae-jong, “Ex-KBS
head cleared of charges of breach of trust,”Korea Times, 12 January 2012 , available atwww.
koreatimes.co.kr/www/news/include/print.asp?newsIdx= 102764.
(^58) Supreme Court Decision 2010 Do 17237 , September 2 , 2011. See also Kim Tae-jong, “PD
Notebook producers cleared of defamation,”Korea Times, September 2 , 2011 , available at
http://www.koreatimes.co.kr/www/news/include/print.asp?newsIdx= 94089.
(^59) Constitutional Court Decision 2008 Hun-Ba 157 • 2009 Hun-Ba 88 (consolidated), December
28 , 2010 ,Korean Constitutional Court Reports, Vol. 22 ,No 2 , Part 2 , 684.


Upgrading constitutionalism 95

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