Justifications and Methods for Amending the Constitution
Dong-A Ilbo Column 2009-07-28
Professor Emeritus, Korea University • former Minister of Foreign Affairs
About 22 years ago, when the current so-called “Sixth Republic” Constitution was adopted, this author, in a newspaper column, welcomed the newly adopted constitution while also pointing out several problems associated with it. First, there exists the problem of holding the presidential election and the parliamentary election at completely different intervals because the presidential term (five years) and the term of the National Assembly members (four years) are not congruent. Thus, this problem has made it impossible to chart a predictable electoral schedule and has also become a factor that contributes to the destabilization of the relationship between the president and the National Assembly. Second, there are problems related to the single five-year presidential term. The term limit is a problem because it has the potential to create negative side effects that can bring about an early lame duck period in the presidency. Third, although the current constitution established a method for direct elections of the president, it did not leave room for the creation of a vice presidential system, thereby making it difficult to maintain continuity in any administration if a sudden absence of the president happened to occur during his/her term. Furthermore, in the absence of a vice president, it is difficult to achieve a regional balance with a winner-take-all presidential system.
In retrospect, the adoption of the current constitution in 1987 paved the way for an epoch-making transition from that of an indirect presidential election system, which had been influenced heavily by the authorities in power, to a direct electoral system closer to that of a full-fledged democracy. However, the final product has to be viewed within the context of that time; the constitution was the outcome of various negotiations and dealings that were based on the calculation of political interests and relations between the different political forces of Roh Tae-woo, Kim Young-sam, and Kim Dae-jung. Thus, the constitution did not comprehensively reflect the views of the Korean public in general, nor was there sufficient deliberation and discussion on the provisions of the constitution. It is inevitable that constitutions and laws, no matter how perfect they might seem at the time of enactment, will still be subject to amendment after their adoption, depending on the time period and various situations. Thus, it seems only natural that there are some people who now express the viewpoint that the constitution of 1987 should be revised because it contains too many problems.
Not Comprehensive Rewriting of Constitution, but Amendment on Case-by-Case Basis
Regarding the proposed amendment of the constitution, the question here is when to amend, what methods should be used, how much, and what kind of contents should be included in the revisions. The constitution has undergone important revisions nine times in the course of forty years, since the constitution was first established in 1948. A majority of the revisions occurred in conjunction with such major political upheavals as the events of April 19 (1960), May 16 (1961) and December 12 (1979) and those constitutional revisions signified drastic systemic changes such as the transitions from a system of presidential government to a parliamentary cabinet system and from an indirect to a direct presidential election system. Thus, even now when we talk of a constitutional amendment, there is a tendency to perceive it as a comprehensive reshuffling of the political power structure.
One exception was president Roh Moo-hyun’s proposal to introduce a so-called “one-point” constitutional amendment plan. Close to the end of his presidential term in 2007, he publicly declared his intent to introduce a constitutional amendment plan that would consist of a two-term presidency, with each term lasting for four years. The “one-point” constitutional amendment plan, regardless of its contents, became an object of criticism because of the timing of the public announcement, presumed political motives, and the method of proposal. In the end it just became an unexploded political bomb. However, any constitutional amendment that is not premised upon a revolution or total political reform should not be considered a comprehensive revision but only a one-point amendment dealing with a specific issue.
For example, since 1788 when the United States adopted its Constitution, there have been a total of 27 Constitutional amendments (including 10 Bill of Rights amendments) such as women’s right to vote, introduction of an income tax system, limitations on the presidency to two terms, abolishment of the slavery system, elimination of racial discrimination in voting rights, and direct popular election of the Senate. All of these should be considered one-point (one issue) amendments. In the United States, which is recognized as the birth place of the written constitution, constitutional amendments have come about through a long-term, partial, gradual and specific case-by-case basis. Even in the United States, which emphasizes a law-abiding spirit, due process of law, and the politics of compromise, constitutional amendments are executed in a moderate manner on a small scale.
In contrast, Korea today is pervaded by an extreme ideological divide, a political culture of struggle, and mistrust among political groups and parties. The situation is such that the National Assembly has become a battling ground for a single piece of legislation and the struggle among political parties has become even more intense. In this context, no matter how noble or good one’s intentions may be, pursing a comprehensive rewriting of the constitution would only end up dividing the public opinion even further and would dissipate political energy in many directions with unproductive results. Taking into consideration the problems in the current constitution, there are grounds for pursuing constitutional amendments. However, one should be prudent and deliberate over the timing and methods for introducing any new constitutional amendments.
Revisions Should be Pursued by a Group Trusted by the Public
How then should one go about pursing constitutional amendments and discussions regarding them? First, if one wants to pursue constitutional amendments, the nature of such amendments should not be of a comprehensive systemic reform type but should be ones that deal with specific issues on a case-by-case basis. That is because it is not easy to deal with many issues that are interrelated and possibly conflicting with one another within the limited boundaries of a one-time, single constitutional amendment. Second, when constitutional amendments are introduced in Korea, people have a tendency to focus primary attention on the issue of who is leading the initiative rather than what the amendment is actually proposing to change. Thus, it would be desirable if public figures or a group which is objective and trusted by the public were to pursue constitutional amendments instead of amendments proposed by the government or political parties.
There is an American proverb which says that “if it ain’t broke, don’t fix it.” Although our current constitution does not satisfy us 100 percent, one has to admit that it does conform to our requirements for democratization, becoming an advanced nation, and globalization. At this point in time, it would be desirable to give careful consideration to what is actually needed and what is possible when pursuing constitutional amendments.