Respect of law essential for rule of law

South Korea has shown the world that it has come of age by smoothly hosting the G20 Seoul Summit on Nov. 11 and 12.

Lee Kong-hyun, a justice of the Constitutional Court, speaks during an interview with The Korea Times at his office in Seoul.
/ Korea Times photo by Shim Hyun-chul

Justice Lee Kong-hyun says laws should not be changed too often

By Cho Jae-hyon, Park Si-soo

South Korea has shown the world that it has come of age by smoothly hosting the G20 Seoul Summit on Nov. 11 and 12.

The nation, propelled by rapid economic growth over the past few decades, is on the threshold of joining the ranks of developed nations. However, there is still a long way to go before it becomes a country that is governed by the rule of law, one of the key yardsticks measuring the advancement of a country.

The prevailing general perception is that the powerful and rich do not abide by laws and ordinary citizens are forced to follow. The public craze for the best seller “Justice” by Michael Sandel and the government’s recent campaign for a “fair society” in recent months is an ironic reflection of the reality that the basic two principles of a democratic society have not taken root firmly here.

With Korea fraught with conflict among various interest groups and suffering from ideological rifts between conservatives and liberals, how to interpret the laws and whether they are constitutional have been as important as ever. And at the center of the critical mission is the Constitutional Court.

Lee Kong-hyun, one of nine justices at the Constitutional Court, said that the general public do not respect laws as much as they should and that’s because they believe that the law is something easily changeable.

Asked about ongoing disputes over the revision of the Constitution in the political sector, Lee said he is not in a position to say whether it should be changed or not.

However, he said the Constitution has been “modified too much and too often” since it has been established six decades ago.

“We have had four major changes to our Constitution over the past 60 years. If it’s been made under the agreement of the people, then it should be respected,” Lee said in an interview with The Korea Times at his office. “If some parts need to be modified, some partial revisions could be made. But we have altered the Constitution and other laws too often.”

He said this habitual changing of laws is one of the reasons keeping people from respecting the laws.

“The administration and citizens tend to think that laws can be altered — if they feel they are inconvenient or uncomfortable due to a specific law, they say, ‘Let’s change it,’” Lee said.

Born in October 1949 in Gurye, South Jeolla Province, Lee graduated from Seoul National University, majoring in law and passed the Korean Bar Exam in 1971. He earned a master’s degree in law from Harvard Law School. He has held various positions in the judiciary and he served as vice minister of the Ministry of Court Administration in 2003.

In March 2005, he was appointed justice of the Constitutional Court on the ticket of the chief justice. Lee is the only non-European member of the Venice Commission, an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law.

Lee said such an attitude stemmed from the turbulent history of Korean laws. The Constitution of Korea has undergone comprehensive changes four times and partial ones five times since its inception in 1948.

“If there is something to be changed in the constitution and if that need is accepted by the people, the part, not the whole, can be changed. If the Constitution is changed too often, how can the people respect it? We should maintain the framework of the constitution.”

The military junta in the 1970-80s amended the Constitution in order to solidify and extend its governing of the country.

Moderator of disputes

The amendment in October 1969 enabled then President Park Chung-hee to serve in the position for three consecutive terms. The next amendment in October 1972, widely called “Yusin,” put the parliament under Park’s control, making it a rubber stamp for presidential policies. The Constitution was last amended in 1987 right after the people’s pro-democracy movement.

“South Korea’s democracy is still young. We need a system where all decisions and conclusions, if produced through due procedures, should be followed and respected by the people. And if people believe the system must be changed, they should say so through votes,” Lee said.

Lee said the role of the Constitutional Court is “the last moderator” making balanced and unbiased solutions for social and political disputes and conflicts.

He said a good solution does not always go with the dominant public opinion.

“The majority does not always have the right answers,” he said, adding that Nazism and Fascism in Europe were fully supported by the people in the past.

He said there needs to be an institute that is widely respected and of which decision could bring an end to disputes sharply dividing public opinion.

The court was established in 1988 to meet people’s strong enthusiasm for democracy and protection of human rights.

It benchmarked a European-type constitutional court system, which was initiated in order to prevent recurrence of Nazism and Fascism there.

As of 2007, 110 countries, including South Korea, have an independent court exclusively dealing with cases filed for allegedly challenging constitutional rights.

Lee said Turkey and many other nations are showing a greater interest in the Constitutional Court’s contribution to the democratization of the nation.

Lee compared the role of the Constitutional Court to a hospital. The court was built on the same site where “Jejungwon,” the first western-style hospital in Korea, was built by American missionary Allen in 1885. Back then, Jejungwon provided innovative medical treatments to Korean patients and educated selected students in Western medicine.

“The authoritarian era of the military junta in the 1970s-80s gave an impetus for the establishment of the court to heal the bruises of the public. It seems that the site has been reserved for something that heals troubles,” Lee said, smiling.

Freedom of expression

He said recent increases in petitions filed with the court are desirable.

“The Constitutional Court has made a contribution to listening to their voices,” Lee said.

How much freedom of expression should be guaranteed in the Internet era? This is a question frequently asked in recent years amid increasing number of lawsuits for online postings written with unfiltered and defamatory language.

Lee emphasized the importance of freedom of expression and speech to make a sound and healthy society.

“The freedom of expression and speech are more strongly guaranteed than other basic human rights by the Constitution of Korea,” he said. “It was based on lessons we learned from the past.”

In the 1970s-80s, then iron-fisted military junta pre-censored all kinds of publications and TV programs to keep stories negative to the regime from being released to the public.

“I think there should be people who make noises in a democratic society. People should be encouraged to express their opinions freely. A noisy society is a healthy society that is ready to listen to diverse opinions,” he said. “I want the Constitutional Court to become a venue for open debates on a variety of issues we should know and learn to make society moving forward.”

However, he indicated that he feels grave responsibility as one of nine justices who should handle various crucial issues that affect the course of the nation. “When I wake up in the middle of the night or when I am driving, I ponder sensitive issues I should handle,” he said.

Asked what the most important qualification to become a good judge, he said, “It is the one who talks less and listens hard.”

Who is Lee Kong-hyun?

Born in October 1949 in Gurye, South Jeolla Province, Lee graduated from Seoul National University, majoring in law and passed the Korean Bar Exam in 1971. He earned a master’s degree in law from Harvard Law School. He has held various positions in the judiciary and he served as vice minister of the Ministry of Court Administration in 2003.

In March 2005, he was appointed justice of the Constitutional Court on the ticket of the chief justice. Lee is the only non-European member of the Venice Commission, an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law.