Who Are the Enemies and What Can Be Done to Them? Puzzle and Paradox of Constitutional Intervention in South Korea
ABOUT THE RESEARCH PATH
What brought you to work on South Korean constitutional justice? What is the scientific interest of this subject?
The impetus to engage in research on the post-authoritarian role of the Constitutional Court of Korea springs from my disquiet at a neglected and unsettling aspect of South Korea’s widely acclaimed democratization: the resilient deployment of repressive instruments, such as the emblematic National Security Act, after the 1987 change of regime. Invested as a site where the validity of these instruments has been repeatedly challenged, constitutional justice has become centrally involved in the (re)definition of who enemies are and of what can be done to them since the transition. While the court is generally described as having contributed to safeguarding individual rights against abuses perpetrated in the name of national security, the jurisprudential corpus analyzed in this book unveils a more complex and ambiguous picture of how constitutional justice has reframed what counts as national and antinational in South Korean democracy over the last three decades.
The relevance of a monographic study centered on the Constitutional Court of Korea is not only to empirically document a prominent case still relatively overlooked in the field of comparative constitutional politics but also to formulate a theoretically provocative argument, excavating the two-sidedness that can accompany the task of protecting the constitutional order. The way in which the South Korean court has discharged its role as guardian of the constitution indeed appears to exemplify a fundamental puzzle and paradox of constitutional intervention: the illiberal component that can manifest itself when courts’ commitment to defining and defending constitutionalism institutionalizes the political exclusion of particular actors (in this case, individuals not endangering South Korea’s national security but a certain idea of what the national is).
In terms of research practice, how did you address the subject: archives, interviews, long term on-site fieldwork, etc.?
The book primarily adopts an interpretive approach to constitutional discourse as articulated in jurisprudence in order to examine how the Constitutional Court of Korea has contributed to the construction of enmity since the late 1980s. The total volume of cases included in the study consists of close to 70 rulings delivered since the court began to operate in September 1988, 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. A year was spent selecting and analyzing this corpus, including through fieldwork I conducted at the Constitutional Court of Korea’s Research Institute in 2012. This stay also provided me with the opportunity to carry out informal interviews with constitutional research officers from both the court and its institute, as well as to consult the records of some of the main decisions on which this book focuses. The research’s in-depth reading of jurisprudence is additionally 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.
Although the number of selected rulings only represents a small portion of all the cases adjudicated by the Constitutional Court of Korea, the assembled 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 security instruments (such as the National Security Act, the ideological conversion policy, and compulsory military service) that have remained deployed after the transition; clarifying the scope of criminal rights and whether they apply even for or except in national security cases; determining the contours of the national community through the assessment of citizenship and immigration laws; as well as settling matters of war and peace. In addition, several of the court’s most momentous and commented judgments (including its 1995 series of rulings related to the prosecution of former dictators Roh Tae-woo and Chun Doo-hwan, its 2004 verdict against the impeachment of President Roh Moo-hyun, or its 2014 decision to dissolve the Unified Progressive Party) have been fully part of the dispute over which political actors, actions, and discourses count as national or antinational in democratic South Korea.
What is your theoretical approach?
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. While the Constitutional Court of Korea is largely celebrated for having contributed to the country’s democratization through its protection of individual rights and promotion of the rule of law, concentrating on these accomplishments only sheds partial light on the institution’s role in the post-authoritarian era. The concept of judicial politics of enmity that the book proposes aims at encapsulating the nature and ambivalence of the constitutional court’s intervention in the prime dispute that has opposed the state and various parts of civil society since the 1987 change of regime.
Asked to arbitrate who is recognized a place in the community of national subjects by opposition to who is excluded from its scope as posing a threat, constitutional justice has indeed produced a mix of liberal and illiberal outcomes: curbing existing security instruments while confirming their contemporary relevance; setting bonds on the powers of government while consolidating the non-inclusiveness of the new democratic order. Although critical of South Korean constitutional justice in contending so, the book 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 the fact that the court may not have had the possibility to act much differently than it did. Ultimately, its jurisprudence appears constrained by the paradox in which the institution 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.
ABOUT THE SUBJECT
South Korea's transition from an authoritarian and poor state to a "free" and prosperous one in 30 years is often cited as an example of successful democratic transition. Do you consider this too superficial a vision of the situation?
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.” Yet, the 1987 change of regime did not mark a fundamental rupture when it comes to repressive institutions, whose maintenance to date has been justified by most successive governments in relation to the crisis situation that still characterizes the Korean peninsula. The post-1987 enforcement patterns of mechanisms such as the National Security Act, however, indicate that repressive instruments deployed in the name of national security have mainly served to police a certain and contentious sense of what the national is, targeting the discursive claims of those contesting the limits of democracy as institutionalized in the late 1980s by advocating further political and social change.
It is in the frame of this state-society conflict opposing competing ways of imagining the body politic that the Constitutional Court of Korea has been asked to intervene and that its role must be interrogated. As security tools have prevented the 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 arenas to challenge the contours of enmity enforced by the repressive apparatus. Nonetheless, constitutional justice has imposed itself as an ambivalent site where the fundamental political disagreement of the post-authoritarian era—the contentious ascription of enmity—has been not only unprecedentedly voiced by a variety of litigants but also ambiguously resolved by the court.
Can one say that the year 1987 represented a revolution within continuity?
Although South Korea’s change of regime was prompted from below by the mobilization of civil society, in particular the students’ and workers’ movements, the process of democracy’s institutionalization was as surely handled from above by the leaders of both the authoritarian regime and the political opposition. Despite the amendment of October 27, 1987 being the first of South Korea’s constitutional revisions to take place following negotiations between rival parties, the talks that led to it were highly exclusive. The Constitutional Court of Korea was created in this context, as a result of a reform of the constitution that was controlled 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.
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 rarer subclass of cases where democratization took place while the constitution of the ancien régime was kept and amended, as in Hungary, Chile, Peru, Indonesia, and the Republic of China on Taiwan—to my knowledge, the sole other states that did not enact a new basic norm during the wave of democratization and constitution-making of the late 1980s-early 1990s. South Korea’s 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 authoritarian era and thus alienated the forces whose mobilization had brought about the old regime’s downfall.
Did the contentious relation, not to say the "state of war," between North and South Koreas allow for the conservation of institutions that could/should have disappeared with the South Korean democratic transition—or are these legacies of the military dictatorship that the country has not been capable to get rid of?
The fact that repressive institutions have survived the political transition of 1987 has been justified by most South Korean governments in light of the security threat menacing 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 that opposed them from 1950 to 1953. By contrast, the conservation of old security devices in the division’s name 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. Rather than being reducible to a product of the Korean division or a remain of the authoritarian era, the resilience of high levels of repression for more than a decade after the change of regime is best understood as an outcome of democracy’s institutionalization to the exclusion of actors championing a different vision of its contours and sanctioned for doing so.
Consequently, 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 equated with a disagreement about the authoritarian past or the status of North Korea as an interpretive reading of jurisprudence enables to reveal. 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 that are the legacy of South Korea’s democratic transition.
Your work deals with the concept of enmity. How would you define it?
The concept of politics of enmity that the book proposes refers to the dispute over defining what counts as national, legitimate, and authorized conduct, by opposition to what is criminalized as antinational, deviant, and threatening behavior, in a democratic society such as South Korea. This dispute gets judicialized when its resolution is delegated to legal institutions. Through the issue of drawing the boundaries of enmity, constitutional courts may thus address a fundamental political problem: the contentious determination of how democratic inclusion and exclusion are negotiated, of who is recognized a place in the community of national subjects by opposition to who is rejected from it as endangering not only the security of the state but also the stability of the constitutional order.
In itself, constructing and combating enmity does not contradict the function for which constitutional courts are believed to exist. On the contrary, safeguarding the constitution does not merely entail for courts to protect the rights and freedoms that basic norms consecrate but also to preserve both the “constitutional” and “physical” integrity of the existing order as pointed out by American political scientist John E. Finn. In confronting those who threaten this order, some courts may come to grips with a greater predicament than weighing liberty against security in times of crisis. Engaging in the task of articulating the basic structures and fundamental principles that define the constitutional order and therefore ought to be defended is indeed no less problematic. Specifying what these structures and principles are can participate to the consolidation of non-inclusive arrangements when the meaning and/or use of these “basic” and “fundamental” categories appear to be a source of society-wide disagreement, as is the case in contemporary South Korean democracy.
Is South Korea's definition of the concept of enemy different? Has South Korean constitutional justice transformed its definition, and if so, how?
Contrary to what may seem, the North-South border never stood as the sole marker of inclusion and exclusion in the Korean 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 also 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 diverse categories of opponents under all South Korean authoritarian regimes. 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 by sanctioning alternative imaginaries (such as the anti-imperialist, anti-capitalistic, and pro-reunification vision of people’s movement groups).
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 and 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. While constitutional jurisprudence has strived to control the legality of repressive mechanisms inherited from the pre-1987 era, it has also upheld their continued legitimacy to defend not only the state but also the democratic constitutional order. 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’être, the court has contributed to consolidating their post-authoritarian relevance and functionality: enforcing a non-inclusive way of envisioning the national in the name of protecting the nation.
Is this Constitutional Court efficient in acting as a guardian of the constitution?
The critical perspective adopted in this study does not aim at refuting that the Constitutional Court of Korea acts as guardian of the constitution. Instead, the analysis seeks to call attention to the exclusionary dimension of the court’s intervention as it has performed the task of defining and defending the constitutional order. The institution’s commitment to safeguarding this order has not only entailed for its jurisprudence to promote the rule of law and to protect basic rights but also to reinforce the non-inclusiveness embedded in South Korean democracy as institutionalized in the late 1980s. The role that the constitutional court came to embrace does not imply that it was created for such a purpose. 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 the transition, embodied in the enduring repression of people’s movement groups 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.
You address the issue of democratic inclusion and exclusion, of the national community vs. the enemies of the nation. Can the South Korean case be compared to other cases? Is this subject open to international comparisons?
While the post-authoritarian disagreement that constitutional justice has been asked to resolve after the 1987 change of regime may pit against each political forces specific to the South Korean case, 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 institutionalize dynamics of inclusion and exclusion distinct from tensions between religion and secularism, separatist and federalist nationalisms, or ethno-cultural 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 advent of democracy.
Justine Guichard was interviewed by Miriam Périer, CERI
