The South Korean judiciary is highly professionalized and fairly independent, though not totally free from governmental pressure. In particular, state prosecutors are from time to time ordered to launch investigations (especially into tax matters) aimed at intimidating political foes or other actors not toeing the line. The Constitutional Court has underlined its independence through a number of remarkable cases in which courts have ruled against the government. For example, a court acquitted the blogger “Minerva” (see Media Freedom), who was accused by the government of damaging the nation’s credibility and destabilizing the currency market. In another case, the makers of MBC’s PD Diary television program, which led to the protests against U.S. beef imports, were found not guilty of defamation. Courts have also thrown out many (but not all) of the cases against protesters accused of organizing illegal protests. However, there have also been cases that call the independence of the courts into question. For example, Korean Supreme Court Justice Shin Young-chul used his position to influence the decisions of subordinate courts during the trials against protesters who had demonstrated against the import of U.S. beef in 2008. Justice Shin was referred to the court’s ethics commission, but did not step down.
Under South Korea’s version of centralized constitutional review, the Constitutional Court is the only body with the power to declare a legal norm unconstitutional. However, in cases having to do with ministerial and government decrees, and with regard to the decisions of lower courts, the Supreme Court has also demanded the ability to rule on acts’ constitutionality. This has several times contributed to legal battles between the Constitutional and Supreme courts.
Nevertheless, the Constitutional Court has become a very effective guardian of the constitution since its establishment in 1989.
In February 2010, by a 5-4 vote, South Korea’s Constitutional Court upheld the constitutionality of the death penalty. Still, the court cannot be considered to hold an exclusively conservative judicial ideology or values, but rather aims to decide cases based on the merits. This was demonstrated in the court’s ruling of May 27, 2010, in which it stated that “human embryos left over from fertility treatment are not life forms and can be used for research or destroyed.” Strongly criticized by many Christian churches and denominations, this ruling saved South Korea’s thriving stem-cell research sector.
Korea Times 24 September 2009
Joong Ang Daily 2 April 2009
Korea Times 20 April 2009
Korea Times 20 January 2010
Croissant, Aurel (2010) Provisions, Practices and Performances of Constitutional Review in Democratizing East Asia, in: The Pacific Review (forthcoming).
Kim, J. (2009) ‘Government Reform, Judicialization, and the Development of Public Law in the Republic of Korea’, in T. Ginsburg and A. H. Y. Chen (eds) Administrative Law and Governance in Asia: Comparative Perspectives, New York: Routledge, pp. 101-127.
‘Constitutional Court upholds the death penalty’, The Hankyoreh, 27 February 2010, http://asiadeathpenalty.blogspot.com/2010/02/south-korea-news-report-on.html
‘Embryos are not ‘life forms,’ South Korea court rules’, AFP, May 27, 2010.