[Viewpoint]The rule of law

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[Viewpoint]The rule of law

There is order in doing things and rules to be followed. Those who wish to go to sea should not rely on their own experience and ability alone, but should check the conditions of the vessel and the weather, and be sure they know their course of navigation.
More than anything, they should abide by the basic rules of navigation. In setting out to restructure the government, the new administration is jumping right into the wind and waves, even before its launch.
The first issue has to do with who will be the main actor in the revamp of the government. Article 96 of the Constitution expressly stipulates that “the establishment, organization and competence of each ministry of the executive shall be determined by an act of the legislature.”
In interpreting Article 75 of the Constitution of the First Republic, a similar clause to this article, Dr. Yu Jin-oh said: “Because the organization of each administrative department has great influence on the people’s rights and duties, the government is prevented from deciding on it at will. The organization should be determined by a law that requires approval from the National Assembly. This is a principle that each democratic country has adopted. It is totally different from the so-called imperium of government organization, which the Japanese government decided to organize at will before its defeat in the war.”
In the past, such decisions were made solely by a monarch, in the age of absolute monarchy. The rule of law was adopted here so that the National Assembly could be the organizing power of the administration.
Therefore, a new law should be enacted by the National Assembly to integrate administrative departments that the Assembly established by law.
The Assembly should show a responsible attitude toward restructuring the new administration. Legislators should always bear in mind the Constitution, which bestows the power to determine government organization on the legislature.
Some people think the presidential transition committee has discretionary power over the government. That misunderstanding derives from an ignorance of the Constitution.
The second issue is related to the timing of the government’s reorganization.
Although, as the saying goes, “well-begun is half-done.” But then again, “Rome wasn’t built in a day.”
It is understandable for the new administration to be eager to start its term in office with its own policies immediately after the transfer of power. However, the new administration may attract resistance and trouble if it pursues a large-scale government restructuring based on a completely different philosophy of national administration while the old government still holds office.
Furthermore, the new administration should not act like it is demolishing an old house to build a new one, because that is not the case. Itis being handed down by the tradition of the government of the Republic of Korea, which will celebrate the 60th anniversary of its foundation this year. It would be a problem if the framework of the government organization changed every five years, whenever a new president was elected. The reorganization should be carried out prudently, considering the continuity of the government and the stability of people’s lives.
The third issue is the content of the restructuring. Above all, the abolition of the Ministry of Unification by integrating it into the Ministry of Foreign Affairs goes against the purpose of the Constitution, established theories and precedents.
The Constitution stipulates international relations and inter-Korean relations separately, naming unification as the national goal. Those theories and precedents have always considered inter-Korean relations to be different from relations between countries.
When Germany was divided, as our country is, the relations between East and West Germany were managed by a separate department, the Ministry of Inter-German Relations. Right after unification, that department was abolished.
The decision to abolish the ministry was criticized as rash, done before the complete integration of East and West Germany had been achieved. As such, inter-Korean relations and unification issues should be undertaken by an independent department.
Next, the decision to abolish the Ministry of Gender Equality and Family and absorb its work into the Ministry of Health and Welfare overlooked the backward, discriminatory environment that women and families had faced in Korea, particularly regarding welfare policies. The decision should be reconsidered.
Finally, changing the National Human Rights Commission from an independent agency to one under the command of the president ― even if its independence is guaranteed ― does not conform to the true nature of the commission, whose main duty is to protect human rights against the abuse of power. I hope the new administration looks back on the history of countless discussions and heated contention at the time of the commission’s establishment. People debated whether it should be organized as a national agency or a civic organization. Eventually, it became an independent agency.
The new administration should remember that Rome wasn’t built in a day.
I hope to see the momentous launch of the new administration under the warm sunshine of cooperation with the National Assembly, instead of sticking to its own ideas stubbornly.

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

by Kim Seon-taek

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