[OUTLOOK]Power of the court on display

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[OUTLOOK]Power of the court on display

Yet another year is passing by. The year 2004 was the year of the Constitutional Court. Who would have thought that the power of nine justices would be so strong? Has an era where the Constitutional Court decides everything arrived?
This phenomenon is not limited to Korea. In many other countries around the world, the power of the judiciary branch of the government has become a major issue. The titles of some recently published books attest to this.
A new word, “juristocracy,” was recently coined and is being popularly used. There are even snickering comments about the “rule of the judges.” Some of the stronger expressions include “judicial imperialism.”
The reason that the judicial branch has gained power over the years is because of the constitutional court system. The purpose of this system is the deliberation of unconstitutional legislation. Since this system can overturn laws that the representatives of the people have made, it is not just any ordinary system.
In the early 19th century, the United States was the first country to adopt a system to decide whether challenged laws are unconstitutional. Though there is no provision for it in the U.S. Constitution, this system was started by the Supreme Court based on its own precedents.
After World War I, several countries created separate institutions called constitutional courts, but these were abolished during World War II. At the end of the war, only three countries in the world kept their constitutional review system: the United States, Norway and Iceland.
After the war, many European countries such as Germany and Italy started establishing their own constitutional courts, and the system spread to the rest of the world starting in the 1970s.
A wave of democracy swept through the entire world, and with it, constitutional courts were established. Today, more than 80 countries have a constitutional review system.
With the constitutional review system spreading around the world, new issues and problems popped up. The judicial branch was no longer safe from political strife, and the “judiciarization of politics” arose. The “politicalization of the judiciary” followed.
Some countries, as well as the United States, started adopting an active judiciary system where the court does not hesitate to rule on the legislation created by the representatives.
This is where the debate began, and one is forced to ask what is the appropriate political role of the constitutional court.
Some claim that an overzealous judiciary is fundamentally undemocratic because it usurps legislative bodies. U.S. law scholar Robert Bork, a well-known supporter of this position, even used the expression “a coup d’etat of the judges.” (Mr. Bork was nominated for the U.S. Supreme Court by President Ronald Reagan, but his nomination was rejected by the Senate, whose members feared that he was too conservative.)
On the other hand, those who call for a more active role of the judiciary argue that this does not harm democracy but rather promotes it. As they see it, the legislative branch often moves according to partisan interests, and a form of judicial regulation over legislation is needed, especially to protect the minorities of society.
This debate will continue as long as the constitutional court system exists. What is certain, however, is that an active judicial system has become a global trend today, and that underneath it lies the growing awareness of an individual’s rights and a distrust of of the law.
As in other countries, our Constitutional Court was a by-product of democratization. The active rulings by the court until now have convinced many foreign academics to label the Korean Constitutional Court one of the more successful cases.
With the recent ruling that deemed the government’s plan to move the administrative capital unconstitutional, the activism of the judicial system has been taken to another level. Now it seems that the Constitutional Court will not hesitate to rule even on the core sphere of interests of the ruling powers.
After this ruling was made, there was a strong wave of protests and tension, but it was most fortunate that it ended where it did. Regardless of whether one agrees with the ruling or not, one should feel proud that our judicial system has taken yet another huge step forward.
From now on, the Constitutional Court will carry a heavier burden to prove the legitimacy of its ruling. Constitutional rulings deal many times with gray areas, and ultimately, it is a choice of values. The justices must persuade the public that their rulings are not based on their personal opinions and values, but on the national value found within the constitution.
The year 2004 brought greater power to the Constitutional Court, but it also brought it a greater responsibility as well.

* The writer is a professor of constitutional law at Hanyang University. Translation by the JoongAng Daily staff.


by Yang Kun
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