Nagoya University Asian Law Bulletin Vol.1 (June 2016)【Special Features : Article】

Constitutional Court of Korea and its Contribution to Asian Network ofConstitutional Justice
Kookhee LIM Abstract
This paper deals with the historic background that led to the foundation of theConstitutional Court of Korea and its major achievements so far. While faithfully fulfilling its
prime duty to deliver constitutional justice at home within its capacity as the guardian of theConstitutional order and protector of basic rights of the people, Constitutional Court of Korea
has been placing a particular emphasis on enhancing cooperation and discussing common issues
with the Constitutional Courts and equivalent institutions in Asia and beyond. In this respect,
the Court has been active in carrying out the activities of the Association of Asian
Constitutional Courts and Equivalent Institutions and others through various internationalframeworks. Most notably, the Constitutional Court of Korea has proposed to explore thepossibility of a human rights mechanism in Asia. This idea was well reflected in “SeoulCommunique”, a final outcome of the World Conference on Constitutional Justice held on
September 28 to October 1 in Seoul last year, which attracted 305 delegates from constitutional
courts and equivalent institutions in 92 countries and international courts. The basic idea of theinitiative is to start discussions on this issue in terms of necessity, feasibility as well as casestudies of similar mechanisms already in existence in other regions. With this idea being in its
infancy, research and discussions among interested researchers and judicial experts will benecessary to further develop it.

ContentsI. Introduction
II. About Constitutional Court of Korea
III. International Cooperation and Activities of the Korean Constitutional Court
IV. Background on the Initiative to Lay the Foundation for Establish an Asian
Human Rights Court

This article was submitted to the ALB editors for publication on September 30, 2015.
Atty., Deputy Director of International Cooperation at the Constitutional Court of Korea. This presentation wasmade in a strictly personal capacity and does not necessarily reflect the official position of the Constitutional Court ofKorea.

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Constitutional Court of Korea and its Contribution to Asian Network of Constitutional JusticeI. Introduction
Let me begin by thanking Professor Obata Kaoru and the staff of CALE (Centerfor Asian Legal Assistance) for inviting me here and for the wonderful organization ofthis conference.
It is my true pleasure to be given this opportunity to address this distinguishedaudience today.
I will deliver my presentation in three parts: I will first briefly introduce theConstitutional Court of Korea, then about the efforts our Court has made for thedevelopment of constitutional justice in the Asian region, and lastly brief you on thebackground behind our Court’s President Park Han-Chul's proposal for the Asian Courts
to work together to lay the foundation for a Asian Court of Human Rights.

II. About Constitutional Court of Korea
The Constitutional Court of Korea1 was founded in September 1, 1988 as a resultof the constitutional amendment in 1987, which captured the Korean people's strong
desire for a true democracy.
Our Court has nine Justices appointed by the President of the Republic; three areelected by the National Assembly, other three are nominated by the Chief Justice of theSupreme Court, and the remaining three are directly appointed by the President.
The President of the Court, who is appointed by the President of the Republicwith the consent of the National Assembly, represents the Court and serves as thepresiding Justice of the full bench.
All the Justices are appointed pending the approval of the National Assemblywith the purpose of securing democratic legitimacy, and they hold their office for theterm of six years. At present, Justice Park Han-Chul is leading the Court as its fifth
President.
Our Court has jurisdiction in five areas as provided by the Constitutional Court
Act. 1) judicial review of laws as to whether laws enacted by the legislature is1

http://english.ccourt.go.kr/cckhome/eng/introduction/aboutTheCourt/aboutTheCourt.do49

Nagoya University Asian Law Bulletin Vol.1 (June 2016)

consistent with the constitution, which is done at the request of ordinary courts, 2)
impeachment of high-ranking officials including the President of the Republic, 3)
dissolution of political parties when the purpose or activities of a political party
contradict the basic democratic order as provided in the Constitution, 4) competence
disputes between government institutions or those between local governments, and 5)
the constitutional complaint directly filed by individuals who claim that theirfundamental rights guaranteed under the Constitution have been violated bygovernmental powers.
It is remarkable to see what our Court has accomplished over the past 27 years.
First, judging by the figures, as of August 2015, the Court disposed of 27,300 cases outof the 28,000 cases filed, and in around 700 cases, the Court struck down statutes orgovernment actions by ruling them unconstitutional or constitutionally incompatible.
Furthermore, the Court upheld the constitutional complaints filed by individuals inaround 530 cases, acknowledging that their fundamental rights had been infringed bypublic authority and thereby faithfully fulfilling its duty to safeguard the Constitution
and protect peoples' fundamental rights. 2
According to the recent opinion poll conducted on the occasion of the 26thanniversary of our Court, in some of the most prominent cases cited by the citizens, theCourt struck down the "presidential emergency decrees based on the Yushin
Constitution," "online real-name system, "minimum age requirement for holding publicoffice," "male-oriented family head system," and "prohibition of communication
restricting the freedom of expression in cyberspace."3
Besides, our Court has also handed down very important decisions that had agreat impact on the society and are very rare and unprecedented even in internationalterms. A case involving the impeachment of an incumbent President of the Republic in
2004, a case where the Court ruled constitutionally incompatible the law allowing as
much as three-fold population gap between electoral districts last year, and one in which
the Court decided to dissolve a political party.
This shows that our Court is substantially exercising its powers over five areas2

http://english.ccourt.go.kr/cckhome/eng/decisions/caseLoadStatic/caseLoadStatic.do
http://www.ccourt.go.kr/cckhome/kor/ccourt/news/selectNewNews.do?statusCRUD=R&searchClassCode=HPNOTI
CE&searchClassSeq=1351#350

Constitutional Court of Korea and its Contribution to Asian Network of Constitutional Justicevested by law, and that it stands as the final interpreter of the Constitution based on its
decisions holding laws or actions unconstitutional, conditionally unconstitutional, andso forth. Consequently, our Court has enjoyed the honor of being voted by the public as
the most trusted government institution for the past few years4.
Yet, there are a considerable number of people who warn about the possible
dangers of readily handing over issues to the Constitutional Court instead of addressing
them in the political arena, the issues that in fact should have been resolved throughconsensus between the ruling and opposition parties in the National Assembly.

III. International Cooperation and Activities of the Korean Constitutional Court
So far, I have focused on telling what the Korean Constitutional Court has done
domestically to fulfill its duties, including safeguarding the Constitution and protecting
the fundamental rights of individuals. Now, let me turn to the international activities ourCourt has been involved in.
Starting with our Court's activities within the Venice Commission5, the Republicof Korea joined the Venice Commission initially as an observer in 1999 and later
became a member state in 2006. Currently, one member and one substitute member
serve to represent Korea. Last year, we successfully hosted the 3rd Congress of theWord Conference6 on Constitutional Justice by working in close cooperation with theVenice Commission. And we believe that not just the existing activities within theVenice Commission, but this close cooperation with the Commission will also continue
in many areas including the initiative to establish an Asian human rights court, which isreflected in the Seoul Communiqué7. In this context, it is very meaningful that JusticeKang Ilwon8 of our Court, who currently serves as an individual member of the Venice
Commission, was elected as the Co-President of the Joint Council on Constitutional
Justice in December last year.
Our Court considers the Venice Commission as a major avenue for sharing4

http://news.joins.com/article/12401877, http://news.joins.com/article/6855663
http://www.venice.coe.int/webforms/events/
6
http://en.wccj2014.kr/eng/index.do7
http://www.venice.coe.int/wccj/seoul/WCCJ_Seoul_Communique-E.pdf
8
http://english.ccourt.go.kr/cckhome/eng/introduction/organization/justices.do#none
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Nagoya University Asian Law Bulletin Vol.1 (June 2016)

experience and wisdom between countries around the world on current constitutional
issues, and we plan to reinforce our activities within the Commission through close
cooperation.
Next, I will explain about our work in creating the Association of Asian
Constitutional Courts and Equivalent Institutions9.
Starting from the 3rd Conference of Asian Constitutional Court Judges in 2005,
the participants began discussing the need to establish an association composed ofconstitutional courts and other such courts exercising constitutional jurisdiction in Asia.
From then on, the preparatory committee organized for the purpose of setting up suchan association convened four meetings from 2008 to 2010, and the Korean
Constitutional Court held the first three meetings except for the final one, playing aleading role in launching the association.
As a result of active work of participating members to the preparatorycommittee10 and continuing support from the Konrad-Adenauer-Stiftung, the member
states, within three years of setting up the preparatory committee, specifically at its final
meeting in July 2010, adopted the Jakarta Declaration that officially declared theestablishment of the Association of Asian Constitutional Courts and EquivalentInstitutions, also known as the AACC, and pledged to hold the Association’s inauguralcongress in Korea in two years. Thus, the historic Inaugural Congress of the AACC washeld in Seoul in May 2012.
The foundation of the Association has a great significance in that it offers an
official mechanism for mutual cooperation and permanent channel for cooperation
between constitutional courts and equivalent institutions in the Asian region.
Our Court continued to build on this achievement, as we hosted the 3rd Congressof the World Conference on Constitutional Justice in Seoul, September last year. Under
the topic of "Constitutional Justice and Social Integration," the Congress was attended
by 306 participants representing 93 countries and 109 institutions. Not only the heads ofconstitutional courts, supreme courts, and constitutional councils around the world took
part, but representatives of regional human rights courts as well as prominent leaders910

http://www.aaccei.org/ccourt?act=index
http://www.aaccei.org/ccourt?act=history

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Constitutional Court of Korea and its Contribution to Asian Network of Constitutional Justicefrom home and abroad including the Korean President11 and UN Secretary-General Ban
Ki-moon12 showed great interest.
If there is one thing we regret, it is that the Chief Justice of the Japanese Supreme
Court was unable to participate in that Congress due to inevitable circumstances,although the President of our Court had sent a special message through his letter
extending a cordial invitation.
Maybe I could briefly go over the gist of what the participants intensely discussed
at the Congress. As I mentioned, the main topic was "Constitutional Justice and Social
Integration,"13 and the four sub-topics were: "Challenges of Social Integration in a
Globalised World," "International Standards for Social Integration,” “ConstitutionalInstruments Enhancing/Dealing with/for Social Integration," and "The Role ofConstitutional Justice in Social Integration." Aside from the main topic, "Independenceof Constitutional Courts-Stocktaking" was also extensively discussed, in a separate
session, as a big challenge facing constitutional courts across the world.
In the sessions, the keynote speaker first presented a summary of replies
submitted by the participating Courts to the previously distributed questionnaire, andthis was followed by a general discussion.
Notably, in the second session, President Park Han-Chul14 proposed the need towork for establishing a human rights court in Asia in his keynote speech, and many
Courts welcomed and expressed support for this idea.
After all the discussions following each session, rapporteurs of each session
presented their respective summaries of discussions before closing of the Congress. The
participants were very much impressed about the liveliness and high-level in which thediscussion was conducted and expressed great satisfaction.

IV. Background on the Initiative to Lay the Foundation for Establish an Asian
Human Rights Court11

http://www.venice.coe.int/WCCJ/Seoul/docs/WCCJ_opening_speech_ParkGeunHye_ENG.pdf
http://www.venice.coe.int/WCCJ/Seoul/docs/WCCJ_opening_speech_Ban_ENG.pdf
13
http://www.venice.coe.int/webforms/events/?id=1282
14
http://www.venice.coe.int/WCCJ/Seoul/docs/WCCJ_key-note-session_2-Park_ENG.pdf
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Nagoya University Asian Law Bulletin Vol.1 (June 2016)

Now, I will turn to the last part of my speech, about the background behind our
Court’s initiative for the Asian Courts to engage in close cooperation and joint researchto explore the possibility of a human rights court in the Asian region.
His proposal was welcomed by all participants of the 3rd Congress and was also
reflected in the outcome document, the Seoul Communiqué.
It is known that human rights are soundly protected through various mechanisms,
including national systems based on democratic constitutions, regional systems at theinternational level (by continent), and global systems such as the United Nations. As
you may know well, continents such as Europe, America, and Africa already haveregional human rights courts in operation, and Asia is the only region without one. Inother words, this means that Asians still do not have a regional human rights system thatgoes beyond the national level.
We believe that it is time that Asia, as a region that has 60 percent of the world'spopulation and is emerging as the center of world's production and consumption, getstarted with the talks to create a human rights system of its own.
As you know, the European Court of Human Rights was established on the basisof reflection on the Second World War. True, the UK, France and a few other majorcountries took the initiative, but it is also well known that post-war Germany was also
actively involved in the establishment and operation of the European Human Rights
Court.
The Inter-American Court of Human Rights15 runs somewhat loosely comparedto the European Court of Human Rights, but it is to be noted that the American region
also has established a regional implementation system to live up to international
standards of protecting human rights.
In this respect, it is regrettable that Asia nevertheless has not yet developed its
own human rights system. The Asian region still has causes for conflict attributable tothe scars of war as well as ethnic and religious diversity. Establishing an international
human rights court will provide an effective means to enhance the level of human rights
protection based on the universal value of humanity, namely "human rights" andpeacefully addressing potential conflicts in the region.

15

http://www.corteidh.or.cr/index.php/en

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Constitutional Court of Korea and its Contribution to Asian Network of Constitutional Justice

A number of countries are experiencing difficulties due to the recent economic
slowdown and polarization. And this situation could be more dangerous for Asia wherethe state and people could easily come before human rights protection when seen fromits past experience. For this reason, having national human rights issues linked andincorporated into the framework of international human rights system would be all themore important.
As part of the follow-up to the Seoul Communiqué, the Korean Constitutional
Court is collecting information through interactions with human rights courts in otherregions. It is very inspiring that the Venice Commission has expressed full support inthis initiative, and many courts of constitutional jurisdiction in Asia have also shown
positive response.
In fact, we at our Court are expecting the Japanese Supreme Court to also takeinterest and join in our initiative as well as the AACC. And we believe that the interestand attention of all of you here at this conference is crucial to that end. I hope to work
together closely with you in the future and, with that, this concludes my presentation.

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