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Constitution and Revolution - Civic Constitutionalism -

  • DONG-A LAW REVIEW
  • 2013, (58), pp.1-39
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Seon-Taek Kim 1

1고려대학교

Accredited

ABSTRACT

From the revolutions in the North America and France in the last quarter of eighteenth century to the revolution in the Arab and North Africa in 2011, the revolutions have been the momentums for the constitution−making. But it is the universal lesson of history that democratic revolution does not always end with democratic constitution. Not all the democratic revolutions in the Central and East Europe during the late 1980s and early 1990s led to democratic constitutions. Nowadays ‘Arab Spring’ is in turmoil in the course of constitution-building. In Korea, in spite of all their sacrifice, the ‘Nation’, the subject of the Revolution for Independence from Japan in March 1919, the ‘students’, the subject of the Revolution for Democracy in April 1960, and the ‘citizens’, the subject of the Glorious Revolution in June 1987, could not participate in the constitution-making process. That is one of the main causes of the most serious flaw of Korean Constitution: it didn't reflect the will of the Korean People well. From the perspective of constitutional institutionalization, we can still find many problematic clauses derived from the authoritarian rule in the past in the existing constitutional text. The principles of modern constitution like separation of powers and rule of law don't work well. From the perspective of constitutional politics, it is said that the korean form of governmental system, is not far away from so-called “Imperial Presidency”. Argentine scholar O’Donnell’s description under the title of “Delegative Democracy” seems appropriate to explain the power relationships in Korea. It’s not too much to say that Korean democracy is no more than ‘electoral democracy’. Since the transition to democracy in 1987, the Korean people experienced five presidents with different characteristics and the change of regime between the Government party and the Opposition party twice. Despite the recent improvement, Korean constitutional democracy came to a stalemate. There is no sign either of any imminent threat of an authoritarian regression, or of advances toward complete liberal democracy. What is to be done? The Answer is “New Constitutionalism”, named “Civic Constitutionalism” and/or “Popular Constitutionalism”. Now, the reconstruction of the meaning of popular sovereignty and the role of “We, the People” as constituent power is asked to break the deadlock. If new constitutional system could be adopted and introduced by the way of constitution-building process, in which the broad participation of the people is guaranteed, it would be the best, ideal method, but not easy and takes time. Under the existing Constitution it can be considered the combination of weak constitutionalism and strong democracy. All the state agencies including the President, the Parliament, and the Constitutional Court, must respect and reflect the will of the people in their interpretation and application of Korean Constitution. First of all, the people can recognize, evaluate, and speak out about any contemporary constitutional problems. The people must participate in the process of constitutional conversation as principal participants. It’s preliminary condition is the constitutional knowledge and sensibility of the people. Therefore civic education/constitutional education is one of the most urgent tasks to consolidate democracy in Korea and must be supported by the government and civil society.

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