4
Upgrading constitutionalism
The ups and downs of constitutional developments in South
Korea since 2000
Jongcheol Kim
i. introduction
Themes
In the first decade of the twenty-first century, many Korean people have encoun-
tered a number of constitutional problems not only peculiar to Korean society but
also common to modern constitutional democracies. The ways in which they have
managed to solve such problems can be analyzed in the perspective of
constitutionalism as a normative ideal, which liberal democracies enshrine in the
constitution. The aim of this chapter is to report the ongoing process and outcomes
of constitutional developments in the Republic of Korea, internationally known as
South Korea, in this period.
Constitutionalism can be divided into two pillars in its normative composition:
( 1 ) the democratic pillar and ( 2 ) the liberal one. Whilst the latter concerns the issues
of human rights protection, the former involves the accomplishment of popular
sovereignty and the democratic operation of the polity. The democratic pillar of
constitutionalism is concerned with the government structure and political
decision-making process. These include how to stabilize and enhance the efficiency
of the political system that has been democratized since the 1987 constitutional
revision, on the one hand, and, on the other, how to co-ordinate the increasing
demand for direct democracy and representative democracy. The debate on consti-
tutional revision or amendment is a key issue that remains unsettled; there is
widespread skepticism on its feasibility and on the necessity of achieving its goals.
In addition, the Constitutional Court and the ordinary courts have dealt with a
number of constitutional cases in this area, along with a number of reforms in the
political process that were reflected in major political legislation.
In terms of the protection of constitutional rights under the liberal pillar of
constitutionalism, there have been ups and downs. Major debates in this area