No need to hurry

Park Han-chul, president of Korea’s Constitutional Court, proposed the need for authorizing the highest court with the power for so-called “abstract norm control” to examine a norm or preliminary law even if there is no underlying concrete case. Determining constitutional conformity of a controversial issue before it is petitioned to the Constitutional Court could save time and social losses, but it nevertheless has downside risks.

“There is too much wasteful wrangling in the society, which is worsening the social conflict and divide,” he said to a group of executive editors for newspapers and broadcast media in the country. He argued for the introduction of abstract norm control as a kind of pre-emptive solution to potential conflicts.

Speaking to a seminar led by the press, he said much of the conflict could be avoided if the constitutional court makes preliminary legality review when a contentious issue is under law-making process at the National Assembly. Currently, the Constitutional Court is entitled to review constitutional conformity of cases after they are petitioned by a lower court or an individual claiming to have had his or her constitutional rights undermined.

Countries like Germany and France have adopted abstract norm control in their judicial process. The federal constitutional court can examine legitimacy of a law upon the petition from the federal government or more than a third of the federal legislative members. Reviewing a new law’s potential dangers to civilian rights before it is promulgated could save unnecessary social cost. That’s why legal experts point out the need for the introduction to firmly establish the rule of law.

However, we cannot rule out the possibility that relaying the problems arising from the law-making process — which should be addressed and solved within the legislature upon requests from the government or lawmakers — to the court could only aggravate the conflict. Needless to say, the majority principle in lawmaking could be threatened, and state governance could come to a standstill if the minority voice interrupts legislative activities by taking issues to the court.

Too many political cases already go to the judiciary in Korea. The realm of political judgment increasingly becomes a hostage to judicial judgment. During a visit to Seoul in 1998, Jutta Limbach, then-chief of the German Federal Constitutional Court, also warned that abstract norm control could be abused and make the independent constitutional court swept up in political disputes.