[VIEWPOINT]Campaign counters constitution

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[VIEWPOINT]Campaign counters constitution

The Grand National Party has declared a save-the-nation campaign. The slogan is good but it is a pity that it is going in a direction far from what the constitution pursues. Communism is not the only enemy of free democracy. There is also fascism that oppresses the thoughts and expressions of minorities with the will of the majority, ignores legal procedures and violates physical freedom. Free democracy is fundamentally different from authoritarianism in that freedom of thought, expression and personal liberty, which are the prerequisites of other basic rights, are guaranteed more firmly than any other freedoms. The reason why free democracy, which used to be considered anti-establishment thought, became a dominant ideology of civil revolution and the winner in the Cold War is because it guaranteed such superior freedom to the maximum extent. Our sad history is that pseudo-free democracy supporters tainted the free democratic system and made us feel void of freedom by violating the system, thereby abusing the fact that such freedom could be limited in exceptional cases.
In the statements of the university professor that provoked the current situation, there are many points that are hard to understand even by the academic community, as well by the public. Nevertheless, even though the majority of people criticize his comments, it will be proper for him to be treated according to the democratic legal procedure stipulated by the constitution and the rule of assuming innocence untill someone is proven guilty.
Therefore, it is wrong for the opposition party to make the Justice Minister’s exercise of his command over the prosecution, in opposition of the authoritarian practice of investigation with physical detention, an issue and link it to a save-the nation-campaign. It is because the opposition pursues a pseudo-free democracy that advocates the continuation of authoritarian practices rather than working towards reform to ensure the human rights the constitution emphasizes.
A system based on freedom and one under authoritarian rule are differentiated by the way they handle anti-establishment thoughts. Free democracy primarily implements control on different thoughts and actions of individuals through the free market of thoughts.
By contrast, under a system like North Korea’s, people are sent straight to political prison camps without even a trial, on the pretext of national security. Forcing someone, who does not have an opportunity to destroy evidence or run away, into a kangaroo court and having him investigated under physical detention is an anti-constitutional attitude that denies the difference between our system and that of North Korea’s.
Our society has become accustomed to an authoritarian way of handling ideological issues by highlighting the rivalry between South and North Korea. Excessive use of the right to investigate those charged with violation of security-related laws under physical detention has also been a part of this custom. And advocating for a prosecution that tries to maintain such an anachronistic practice on the pretext of protecting its independence is not what the constitution pursues.
If a party worries about the nation, it should not use the fact that the constitutionally guaranteed rule of investigation without physical restraint was only emphasized in a security-related case as a chance to politically attack the president and the justice minister. Instead, the focus of any save-the-nation campaign should be given to criticizing the prosecution that insisted on investigation under detention and to use this opportunity to strengthen the principle of investigation without physical restraint for the development of freedom and democracy.
In addition, instead of raising an issue with the constitutionally and legally guaranteed authority of the justice minister to exercise command over the prosecution, more efforts should be made to warn of the danger of abusive exercise of the minister’s power and to reform the prosecution to prevent the danger of such abuse from its source. The prosecution has dangerous power that can directly limit the physical freedom of an individual and the basic rule of the constitution is that this power is controlled by the will of the people, who hold sovereign rights. Such democratic control under the rule of law is a constitutional principle that has nothing to do with the change of power and cannot be denied even if the Grand National Party comes to power.
However, democratic control can provide a chance to politically abuse the prosecution’s efforts to protect human rights. In order to correct such problems, it is essential to reform the prosecution, which monopolizes the rights of investigation, indictment and legal administration, by decentralizing and diversifying the Ministry of Justice and the prosecution. The save-the-nation campaign needs to aim for prosecution reform that will change it into an organization that keeps the principle of investigation without physical detention and serves the people according to the constitutional spirit of democratic control.
This is the shortcut to building a proper free democratic national identity on the basis of human rights and democracy.

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


by Kim Jong-cheol

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